text:
    State of Connecticut v. John Roy
    (12281)
    Lavery, Landau and Heiman, Js.

      Argued March 22
    decision released June 21, 1994

      Daniel S. Blinn, special public defender, for the appellant (defendant).

      Nancy L. Gillespie, deputy assistant state’s attorney, with whom, on the brief, were John T. Redway, state’s attorney, and Timothy Liston, assistant state’s attorney, for the appellee (state).
   Heiman, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of burglary in the third degree in violation of General Statutes § SSa-lOS, as a lesser included offense of burglary in the first degree; General Statutes § 53a-101 (a) (1); larceny in the first degree in violation of General Statutes § 53a-122 (a), stealing a firearm in violation of General Statutes § 53a-212 and conspiracy to commit each of the crimes with which he was charged in violation of General Statutes § 53a-48. On appeal, the defendant asserts that the trial court improperly (1) refused to suppress testimony concerning statements made by him to the police in violation of his Miranda rights, (2) denied his motion for judgment of acquittal, and (3) convicted him of both larceny and stealing a firearm. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On the evening of July 13 and the early morning of July 14,1991, the defendant and Donald Young were riding in Young’s truck while contemplating breaking into a gun store in Bristol. The defendant was armed with a nine millimeter pistol and Young carried a .38 caliber revolver. They looked through the windows of a Bristol gun store and noted that no weapons were visible. As a result, they decided to find another store from which to steal guns.

Both the defendant and Young had earlier observed Teddy’s Gun Shop in Haddam (Teddy’s) and had concluded that it was possible to break into that gun store because of its poor security. They thus decided, instead of breaking into the Bristol store, to break into Teddy’s. At the time that they made this decision, Young was operating his truck on Route 72 in Bristol.

Teddy’s is located in a densely wooded area with sparse population. In the immediate vicinity of the store are an apartment complex, a house and a restaurant. Teddy’s is located on the second floor, over the Glockenspiel restaurant. Young parked his truck in the restaurant parking lot and he and the defendant walked to the area of the gun shop. At that time, the Glockenspiel restaurant had been closed for about one hour.

The defendant turned off the power to the building. When the power was shut off, the defendant and Young climbed a ladder that they had placed on the west side of the building. They went to a window that was equipped with an alarm pressure switch and the defendant kicked the switch to bend it so that it would not pop up and activate the alarm. They broke the window, pushed up the window latch and the defendant entered the premises. Young waited outside observing the area in case a silent alarm had been activated.

Young followed the defendant into Teddy’s through the window and they proceeded to load guns into gun cases. The defendant and Young remained in Teddy’s for about three hours. Before placing the guns in the cases, the defendant sprayed the guns with a very light oil to prevent rusting. In addition, they placed a .44 magnum, two .45 caliber, two nine millimeter and two .380 caliber guns in a small duffle bag for removal. The defendant and Young also took ammunition, holsters, magazines, several aimpoint laser scopes and a silencer. Young also removed about $100 from the cash register, which he later divided with the defendant.

The boxes containing the stolen property were placed in Young’s truck and transported to the Cenacle property in Middletown. The property is the site of an abandoned convent with wooded trails and several buildings in various states of disrepair. The defendant and Young took the boxes that contained some of the items removed from Teddy’s and stored them in an underground concrete structure that the defendant referred to as the “Witch Cabin.” The structure had a heavy steel door over the top. The defendant took the stainless steel nine millimeter Baretta and the .380 caliber Baretta, and Young took the .22 caliber Baretta and the .38 caliber Smith and Wesson. They stored the remaining weapons and paraphernalia in the underground structure, covered the steel door with dirt and leaves, and left the area.

On July 16,1991, Young and Ronald Pollack visited the underground structure and Young showed Pollack the weapons and other items that had been taken from Teddy’s. While they were at the structure, they shot one of the nine millimeter weapons. Young removed several of the weapons including a nine millimeter Luger with a silencer attached, a .45 caliber, a .22 caliber, a .380 caliber and another nine millimeter weapon. Young also attempted to file serial numbers from several of the weapons. Young and Pollack then traveled to East Hartford. Pollack was operating a vehicle with Young as the passenger, The vehicle was stopped by the East Hartford police and both Young and Pollack were arrested. When the police stopped the vehicle, Young placed the weapons that he had removed from the cache onto the floor of the vehicle. The East Hartford police took the weapons into possession, identified them as having been taken in the burglary at Teddy’s and notified the state police.

On July 17, 1991, Young was interviewed by two Connecticut state police officers. During that discussion, Young told the police officers about the burglary. Pollock also spoke with the state police and directed the police to the underground structure where the weapons had been concealed by the defendant and Young. On July 17, 1991, the defendant was arrested pursuant to a warrant.

I

The defendant first asserts that the trial court improperly admitted into evidence a statement made by him while he was in custody because (1) he unequivocally invoked his Miranda rights or (2) the trial court failed to make proper inquiry regarding the defendant’s intent when he crossed out his signature on the waiver form. We are unpersuaded.

Certain additional facts are necessary for a resolution of this issue. Sergeant Gregory Snead of the Middletown police had taken the defendant into custody in Middletown and had advised him that the state police had a warrant for his arrest. Snead advised the defendant as to his Miranda rights and discussed with the defendant an unrelated case involving the Middletown police. At no time did the defendant request that Snead stop questioning him nor did he request the presence of an attorney. The defendant was responsive and cooperative with Snead.

After being taken into custody by the Middletown police, the defendant was subsequently transported to Troop F in Westbrook by Detectives Marsha Youngquist and Patrick Gaffney of the Connecticut state police. Upon arrival at Troop F, the defendant was fingerprinted, photographed and his Miranda rights were read to him. After being advised of his rights, the defendant placed his initials after each of the statements in a waiver of rights form. Following his reading and initialing of the form, the defendant signed the form on the signature line, crossed out the signature and then reaffixed his signature adjacent to the signature that he had crossed out. Before the defendant resigned the form, Youngquist reread to the defendant the last paragraph of the waiver form. The defendant then again signed the form.

The defendant testified in his own behalf in the hearing on his motion to suppress the statements that he had made to Youngquist. He asserted that he had advised Youngquist that he did not want to say anything until he had his attorney present. He stated that he had told her that several times, but she continued questioning him. He also asserted that he crossed out his initial signature on the waiver of rights form because it said that he was willing to answer questions and make a statement when he was unwilling to do so, and that he had advised Youngquist of this fact by saying that he would have nothing to say without his attorney. He also claimed that he finally signed the waiver because Youngquist told him that it was just standard procedure to sign the waiver of rights and that it made no difference since he had already been arrested for the crime. He further testified that Youngquist continued questioning him after he had asserted his desire to speak with counsel. He also admitted that Youngquist told him that he did not have to talk simply because he signed the waiver form. The defendant testified as to his prior encounters with the criminal justice system, admitting that he had been given his Miranda warnings on a number of occasions and had given both oral and written statements to the police following his numerous other arrests.

The state police detectives talked with the defendant for about one and one-half hours. The defendant was generally talkative although evasive when he was pressed for details concerning the break-in at Teddy’s, by attempting to change the subject and discussing other crimes that he had committed with Young. When Youngquist told the defendant that they knew that he had broken into Teddy’s, he nodded his head, said “Yeah,” and then volunteered that they “got a lot of guns.” The defendant asked if he could make a phone call at the completion of the interview and was permitted to do so. He elected to call his girlfriend.

On the morning of July 18,1991, Youngquist brought the defendant a statement that she had prepared after the interview concerning one of the other incidents that they had discussed. She again read the defendant his Miranda rights and waiver. The defendant declined to sign the statement saying that his lawyer had told him not to sign anything.

On the basis of the evidence before it, the trial court found credible the testimony of the police officers, but not that of the defendant. The trial court found that the defendant had been properly advised of his Miranda rights, that he understood those rights, and that he voluntarily waived those rights when he spoke with the police on a number of topics, including his admissions with respect to the burglary at Teddy’s. The trial court, on the basis of credibility, further found that the defendant had failed to invoke his right to counsel, with either Youngquist or Snead, and that he had not invoked his right to remain silent. The trial court specifically found the testimony of Snead and Youngquist more credible than that of the defendant. The trial court denied the defendant’s motion to suppress the admissions made to the police.

A

The defendant first asserts that the trial court incorrectly found that he had waived his Miranda rights. We are unpersuaded.

“The state has the burden of proving by a preponderance of the evidence that the defendant knowingly and intelligently waived his Miranda rights, including his right to remain silent.” State v. Barrett, 205 Conn. 437, 449, 534 A.2d 219, rev’d on other grounds, 479 U.S. 523, 107 S. Ct. 828, 93 L. Ed. 2d 920 (1987); State v. Grant, 33 Conn. App. 647, 660, 637 A.2d 1116 (1994); State v. Irving, 27 Conn. App. 279, 283, 606 A.2d 17, cert. denied, 222 Conn. 907, 608 A.2d 694 (1992). We have defined the term “valid waiver” in accordance with the test established by the United States Supreme Court in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938), “as the intentional relinquishment or abandonment of a known right. . . . Although mere silence of the accused is not enough to establish waiver . . . the record need not show a specific expression of relinquishment of rights. . . . Instead, a waiver may be inferred from the actions and words of the person interrogated . . . and from his course of conduct.” (Citations omitted; internal quotation marks omitted.) State v. Barrett, supra, 450; State v. Madera, 210 Conn. 22, 48, 554 A.2d 263 (1989); State v. Irving, supra, 283. The issue of whether the defendant has voluntarily, knowingly and intelligently waived his rights is not subject to an exact test but is an issue to be determined from the facts in the case. State v. Fisher, 210 Conn. 619, 625, 556 A.2d 596 (1989); State v. Toste, 198 Conn. 573, 580-81, 504 A.2d 1036 (1986).

“Although the issue is . . . ultimately factual, our usual deference to factfinding by the trial court is qualified, on questions of this nature, by the necessity for a scrupulous examination of the record to ascertain whether such a factual finding is supported by substantial evidence.” (Citations omitted; internal quotation marks omitted.) State v. Madera, supra, 210 Conn. 48-49; State v. Clark, 24 Conn. App. 115, 122, 585 A.2d 1266, cert. denied, 218 Conn. 903, 588 A.2d 1078 (1991); see State v. Medina, 228 Conn. 281, 294, 636 A.2d 351 (1994); State v. Rosado, 218 Conn. 239, 255, 588 A.2d 1066 (1991). When we consider the validity of the claimed waiver, we look, as did the trial court, to the totality of the circumstances surrounding the waiver. State v. Madera, supra, 49; State v. Rollins, 20 Conn. App. 27, 33, 564 A.2d 318, cert. denied, 213 Conn. 803, 567 A.2d 833 (1989).

We have set out the factual predicate found by the trial court in making its determination that there was a valid Miranda waiver by the defendant. Its finding was based on its determination of the credibility of the witnesses heard during the hearing on the motion to suppress.

A scrupulous examination of the record reveals that the trial court’s fact-finding on this issue is supported by substantial evidence. It thus applied the law correctly in finding that there was a knowing, intelligent and voluntary waiver by the defendant of his Miranda rights.

B

As a second string to his bow, the defendant asserts that the trial court improperly failed to conduct a proper inquiry because the defendant signed the waiver of rights form, then crossed out his signature and resigned the form next to his original signature. The defendant posits that the action of the defendant in crossing out his signature was equivocal and the police were required to seek clarification as to why he crossed out his initial signature, even though he re-signed the waiver form before proceeding with any interrogation. We do not agree.

The trial court made an affirmative finding that at no time did the defendant invoke either his right to counsel or his right to remain silent. We have already concluded that the trial court’s determination of this issue was supported by substantial evidence. State v. Madera, supra, 210 Conn. 48-49.

The defendant contends that his act of crossing out his signature constituted an action that at least required clarification by the police before further questioning. See State v. Acquin, 187 Conn. 647, 674-75, 448 A.2d 163 (1982), cert. denied, 463 U.S. 1229, 103 S. Ct. 3570, 77 L. Ed. 2d 1411 (1983). The defendant’s reliance on Acquin is, however, misplaced. In Acquin, the defendant, upon being advised of his Miranda rights stated, “I think I better get a lawyer.” Id., 672. Further discussion, however, indicated that the request was not as unequivocal as it first appeared, but that it required additional development since it later appeared that the defendant wanted a person that he trusted to be with him during questioning, not necessarily a lawyer. Id., 672. Once even an equivocal request is made for the presence of counsel by a suspect during custodial interrogation, the scope of that interrogation is then immediately narrowed to the clarification of that request until it is clear what the suspect desires. Thompson v. Wainwright, 601 F.2d 768, 771 (5th Cir. 1979); State v. Acquin, supra, 674; see State v. Anderson, 209 Conn. 622, 628, 553 A.2d 589 (1989).

The record is clear, however, that here no further interrogation took place once the defendant crossed out his signature until after he voluntarily, and without prodding or request by the police, re-signed the waiver form. The record discloses that the only statement made by the police after the defendant had crossed out his signature was a reading of the last paragraph of the waiver form. The defendant thereupon re-signed the form. Thus, by the time the police began to question the defendant, he had unequivocally acted to waive his rights. The trial court had before it the testimony of Youngquist concerning the sequence of events that transpired. The trial court found that the testimony of Youngquist was credible on this issue and that the testimony of the defendant was not. “The question of the credibility of witnesses is for the trier to determine. . . . Where testimony is conflicting the trier may choose to believe one version over the other . . . as the probative force of the evidence is for the trier to determine.” (Citations omitted.) State v. Madera, supra, 210 Conn 37. We conclude that, while the act of crossing out the signature was an event that would ordinarily have required clarification, here the need for clarification was obviated by the fact that no interrogation took place until after the defendant unequivocally had knowingly, voluntarily and intelligently waived his Miranda rights.

c

The defendant, however, further posits that an additional factor supports his theory that he acted equivocally. He points to his evasiveness upon interrogation as evidence that he had invoked his right to remain silent. We are not persuaded.

We first note that this claim differs from, although in argument it was coupled with, his claim relating to the crossing out of his signature as evidence of an equivocal act requiring exploration by the authorities. We have already concluded that the defendant unequivocally waived his rights by signing the second time and we now conclude that his alleged evasiveness does not support a claim of even an equivocal action invoking his right to silence.

We first note that the defendant relies on State v. Graham, 186 Conn. 437, 441 A.2d 857 (1982), to support the proposition that the act of evading questions relating to the crime would lead a detached observer to conclude that the defendant had invoked his constitutional right to remain silent. His reliance on Graham, however, is misplaced. In Graham, the defendant had already indicated to a police officer that he did not want to talk with him. Id. In addition, the officer to whom Graham made incriminating statements was an individual who knew Graham from their school days and either he or his superiors suggested that he attempt to secure Graham’s cooperation. Id. At the outset of the conversation between Graham and the second officer, Graham reiterated that he did not want to talk about the occurrence. Despite the second invocation of his right to silence, the officer continued to make inquiry. Id., 443.

Here, the defendant never invoked his right to silence and, in addition, after he failed to answer questions about the crime under investigation, he brought up other crimes in which he and Young had been involved, either separately or together.

Our Supreme Court has held that even a direct declination to answer a specific question does not constitute an invocation of the right to remain silent, unless accompanied by words or action indicating that the person does not want to answer any questions at all. State v. Jones, 193 Conn. 70, 83, 475 A.2d 1087 (1984).

The record contains substantial evidence to support the finding by the trial court that the defendant knowingly, voluntarily and intelligently waived his right to remain silent.

The defendant asserts that the actions of the police violated both his state and federal constitutional rights. The claim is based on the defendant’s assertion, with which we disagree, that his actions constituted at least an equivocal invocation of his rights. The defendant has failed to provide us with a separate analysis of his claim under the Connecticut constitution and we therefore choose not to review this claim. State v. Francis, 228 Conn. 118, 122 n.3, 635 A.2d 762 (1993); State v. Walker, 33 Conn. App. 763, 766, 638 A.2d 1084, cert. denied, 229 Conn. 913, 642 A.2d 1209 (1994); State v. Andrews, 33 Conn. App. 590, 592 n.3, 637 A.2d 787 (1994). The defendant’s claim that the trial court improperly admitted evidence of his custodial statements is without merit.

II

The defendant next claims that the evidence offered was insufficient to support his conviction. In this instance, the defendant is not entitled to review of this issue.

Certain additional facts are necessary for a proper resolution of this claim. The record reflects that at the completion of the presentation of evidence by the state, the defendant moved for a judgment of acquittal pursuant to Practice Book § 884. The trial court denied the motion. The defendant then proceeded to offer evidence in his own behalf, albeit on a very limited basis. At the completion of all of the evidence, the defendant failed to move for judgment of acquittal pursuant to Practice Book § 885, nor did the defendant move for a judgment of acquittal after the verdict of guilty pursuant to Practice Book § 899.

Under the present rules, when a defendant elects to put on any evidence after a denial of his motion for judgment of acquittal at the end of the state’s evidence, he is deemed to have waived his right to appellate review as to the sufficiency of the evidence at the end of the state’s case. State v. Battista, 31 Conn. App. 497, 502, 626 A.2d 769, cert. denied, 227 Conn. 907, 632 A.2d 696 (1993); State v. Wolff, 29 Conn. App. 524, 527, 616 A.2d 1143 (1992); State v. Booker, 28 Conn. App. 34, 41-42, 611 A.2d 878, cert. denied, 223 Conn. 919, 614 A.2d 826 (1992); State v. Kari, 26 Conn. App. 286, 291, 600 A.2d 1374 (1991), appeal dismissed, 222 Conn. 539, 608 A.2d 92 (1992). Thus, the defendant’s claim with respect to the sufficiency of the evidence at the completion of the state’s case is not reviewable. State v. Wolff, supra, 528; State v. Booker, supra, 41.

Because the defendant failed to move for judgment of acquittal after all of the evidence had been presented; Practice Book § 885; or after the rendition of the guilty verdict; Practice Book § 899; he failed to preserve properly the claim concerning the sufficiency of all of the evidence. See State v. Harvey, 27 Conn. App. 171, 186, 605 A.2d 563, cert. denied, 222 Conn. 907, 608 A.2d 693 (1992).

Ill

Finally, the defendant asserts that his conviction of both larceny in the first degree in violation of General Statutes § 53a-122 and theft of a firearm in violation of General Statutes § 53a-212 violated his rights under the fifth amendment to the United States constitution and under article first, § 9, of the constitution of Connecticut. We are unpersuaded. We also note that although asserting a violation of article first, § 9, of the Connecticut constitution, which has been held to encompass protection against double jeopardy; State v. Boyd, 221 Conn. 685, 690, 607 A.2d 376, cert. denied, U.S. , 113 S. Ct. 344, 121 L. Ed. 2d 259 (1992); State v. Lonergan, 213 Conn. 74, 78-79, 566 A.2d 677 (1989), cert. denied, 496 U.S. 905, 110 S. Ct. 2586, 110 L. Ed. 2d 267 (1990); Kohlfuss v. Warden, 149 Conn. 692, 695, 183 A.2d 626, cert. denied, 371 U.S. 928, 83 S. Ct. 298, 9 L. Ed. 2d 235 (1962); the defendant has failed to provide a separate analysis of his state constitutional claim, and we choose not to afford review of the state claim. State v. Walker, supra, 33 Conn. App. 766; State v. Andrews, supra, 33 Conn. App. 592 n.3.

We thus turn to the defendant’s claim made under the fifth amendment to the United States constitution. “ ‘The double jeopardy clause of the fifth amendment to the United States constitution provides: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” The double jeopardy clause is applicable to the states through' the due process clause of the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969); State v. Lonergan, [supra, 213 Conn. 78]. This constitutional guarantee prohibits not only multiple trials for the same offense, but also multiple punishments for the same offense in a single trial. Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977); State v. Anderson, 212 Conn. 31, 35, 561 A.2d 897 (1989); State v. John, 210 Conn. 652, 693, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989).’ State v. Greco, 216 Conn. 282, 289-90, 579 A.2d 84 (1990).” State v. Woodson, 227 Conn. 1, 7, 629 A.2d 386 (1993); State v. Nita, 27 Conn. App. 103, 113, 604 A.2d 1322, cert. denied, 222 Conn. 903, 606 A.2d 1329, cert. denied, U.S. , 113 S. Ct. 133, 121 L. Ed. 2d 86 (1992); State v. Fernandez, 27 Conn. App. 73, 94-95, 604 A.2d 1308, cert. denied, 222 Conn. 904, 606 A.2d 1330 (1992).

Although not raised by the defendant, we must first determine whether the crimes arose out of the same transaction. “Double jeopardy analysis in the context of a single trial is a two-step process. First the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met.” (Internal quotation marks omitted.) State v. DePastino, 228 Conn. 552, 571-72, 638 A.2d 578 (1994); State v. Snook, 210 Conn. 244, 264, 555 A.2d 390, cert. denied, 492 U.S. 924, 109 S. Ct. 3258, 106 L. Ed. 2d 603 (1989); State v. Palmer, 206 Conn. 40, 52, 536 A.2d 936 (1988); State v. Grant, supra, 33 Conn App. 652. In determining whether the crimes arose out of the same act or transaction, we refer to the language of the information. State v. Raymond, 30 Conn. App. 606, 611, 621 A.2d 755 (1993); State v. Nita, supra, 27 Conn. App. 113.

The information leaves little question that both offenses arose out of the same transaction. The third substituted or amended information charges the defendant with larceny in the first degree in violation of General Statutes § 53a-122 (a) (2) and alleges that the crime occurred in Haddam on July 14, 1991, and that the defendant, together with David Young, stole firearms, ammunition, gun cases, rifle scopes, a knife and moneys of a value in excess of $10,000 from Teddy’s. The information further charges the defendant with stealing a firearm in violation of General Statutes § 53a-212 (a) at the same time and place and with the same coconspirator as the charge of larceny. We conclude, on the basis of our review of the information, that the crimes charged did arise out of the same act or transaction.

Our next inquiry is whether the two offenses are the same for double jeopardy purposes. State v. Nita, supra, 27 Conn. App. 114. “ ‘The traditional test for determining whether two offenses are the same offense for double jeopardy purposes was set forth in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932).’ State v. Chicano, 216 Conn. 699, 706-707, 584 A.2d 425 (1990) [cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991)]. Under the Blockburger test, ‘a defendant may be convicted of two offenses arising out of the same criminal incident if each crime contains an element not found in the other.’ State v. Vass, 191 Conn. 604, 615, 469 A.2d 767 (1983); see State v. Greco, [supra, 216 Conn. 291]. We determine whether each crime contains an element not found in the other by examining only the relevant statute, the information and the bill of particulars, and not the evidence presented at trial. State v. Greco, supra [291].” State v. Tweedy, 219 Conn. 489, 495, 594 A.2d 906 (1991); State v. Fernandez, supra, 27 Conn. App. 95. “The term ‘element’ as used in the Blockburger analysis ... means any fact that the legislature has deemed essential to the commission of the crime.” State v. Woodson, supra, 227 Conn. 10.

The crimes of larceny in the first degree and stealing a firearm, as charged, each has a different focus, and each contains an element that the other does not. The focus of the larceny in the first degree statute, as charged in this instance, is the theft of property having a value in excess of $10,000. Property, as used in the statutes relating to larceny, means “any money, personal property, real property, thing in action, evidence of debt or contract, or article of value of any kind.” General Statutes § 53a-118 (a). The resolution of the issue of the guilt of a defendant charged with larceny in the first degree does not turn on the nature of the property stolen but on its value. State v. Saracino, 178 Conn. 416, 420, 423 A.2d 102 (1979). The stealing a firearm statute, however, focuses on the type of property stolen rather than the value of the property. In addition, in order to convict an individual of stealing a firearm in violation of General Statutes § 53a-212, it is incumbent on the state to prove as an element of the crime that the stolen instrumentality is a firearm. A firearm is defined as “[a]ny sawed-off shotgun, machine gun, rifle, shotgun, pistol, revolver or other weapon, whether loaded or unloaded from which a shot may be discharged.” General Statutes § 53a-3 (19). Operability of the firearm is an essential element to establish a violation of § 53a-212. State v. Carpenter, 19 Conn. App. 48, 59, 562 A.2d 35, cert. denied, 213 Conn. 804, 567 A.2d 834 (1989); but see State v. Adams, 331 N.C. 317, 332, 416 S.E.2d 380 (1992), and State v. Boykin, 78 N.C. App. 572, 574, 337 S.E.2d 678 (1985). (North Carolina General Statutes § 14-72 (b) (4), theft of a firearm, and North Carolina General Statutes § 14-72, larceny, not separate offenses because firearm statute does not require operability.) Thus, each crime requires proof of an element that the other does not — with respect to the larceny charge, the total value of the property stolen, and, with respect to the stealing a firearm charge, the operability of the firearm as defined in § 53a-3 (19). “[T]he focus must be on the offenses and whether each offense requires proof of a fact that the other does not.” State v. Walton, 227 Conn. 32, 53-54, 630 A.2d 990 (1993). On the basis of the existence of differing elements between the two statutes, we conclude that the charges are not the same for double jeopardy purposes.

The Blockburger test is a rule of statutory construction rather than a conclusive presumption. State v. Fernandez, supra, 27 Conn. App. 95. Thus, we cannot end our analysis here. “[A] presumption under Blockburger that there are two crimes which may warrant two punishments may be rebutted “ ‘by showing a clear legislative intent that the two statutes be treated as one for double jeopardy purposes.” ’ ” State v. Russell, 25 Conn. App. 243, 251, 594 A.2d 1000, cert. denied, 220 Conn. 911, 597 A.2d 338 (1991); see also State v. Fernandez, supra, 95. “The language, structure and legislative history of a statute can provide evidence of this intent.” State v. Greco, supra, 216 Conn. 293; State v. Nita, supra, 27 Conn. App. 116.

The defendant contends that the legislative history makes it clear that the General Assembly intended that, where firearms are the property stolen, § 53a-212 applies and not the larceny statutes. The defendant further argues that, even if we conclude that the legislature did not intend that the stealing a firearm statute be the only statute applicable to the stealing of a firearm, the legislative intent was not to create a separate crime in addition to the larceny statute, but merely to ensure that the theft of a small quantity of firearms be treated as a class D felony and not as a misdemeanor. We remain unpersuaded.

Our review of the legislative history of the stealing a firearm statute leads us to conclude that nothing in that history indicates an intent on the part of the legislature not to create a separate and additional offense involving the stealing of a firearm. Nothing in the history supports the defendant’s claim that the legislature did not intend to expose a person involved in the theft of a firearm to both penalties.

The comment by the commission to revise our penal code with respect to the larceny statutes reveals that “[t]he degree of larceny is, for the most part, determined by the value of the property taken or, in some cases, by the way in which it is taken. It is not generally determined by the kind of property.” Thus, the legislature created other statutes that recognize that the type of property involved is, in some instances, germane to the state’s penological interest. Moreover, the defendant has attempted an analysis of the legislative history only of the stealing a firearm statute. Because the legislative history pertains only to the firearm statute, it “does not illuminate our legislature’s intent regarding the interplay between our [larceny] statutes and the [stealing a firearm] statute.” State v. Fernandez, supra, 27 Conn. App. 97. Because we discern no clear legislative intent to prohibit separate punishments for larceny in the first degree and stealing a firearm, we reject the defendant’s double jeopardy claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-103 (a) provides: “A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein.”

       General Statutes § 53a-122 provides in pertinent part: “(a) A person is guilty of larceny in the first degree when he commits larceny as defined in section 53a-119 and ... (2) the value of the property or service exceeds ten thousand dollars . . . .”
      General Statutes § 53a-119 provides in pertinent part: “A person commits larceny when, with intent to deprive another of his property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. . . .”

       General Statutes § 53a-212 (a) provides: “A person is guilty of stealing a firearm when, with intent to deprive another of his firearm or to appropriate the same to himself or a third party, he wrongfully takes, obtains or withholds a firearm, as defined in subdivision (19) of section 53a-3.”
      General Statutes § 53a-3 (19) provides: “ ‘Firearm’ means any sawed-off shotgun, machine gun, rifle, shotgun, pistol, revolver or other weapon, whether loaded or unloaded from which a shot may be discharged . . . .”

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

        Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       The form that the defendant initialed was as follows:
      “WAIVER
      I have been advised that: Initials
      I have the right to remain silent. JR
      If I talk to any police officer, anything I say can and will be used against me in court. JR
      I have the right to consult with a lawyer before I answer any questions and I may have a lawyer with me during questioning. JR I have the right to have a lawyer appointed for me, if I cannot afford one, before I answer any questions. JR
      I know that if I answer questions, I have the right to stop answering at any time. JR
      I may stop answering questions at any time if I wish to talk to a lawyer, and I may have him with me during any further questioning. JR
      I am willing to answer questions and make a statement knowing that I have these rights. I do not want a lawyer. I know and understand what I am doing. I do this freely and voluntarily and no threats or promises have been made to me. JR”

       See footnote 6.

       We also note our discussion in part I A, wherein we upheld the finding by the trial court that the defendant had effectively waived his Miranda rights before any questioning took place.

       See part I B of this opinion.

       Practice Book § 884 provides: “If the motion is made after the close of the prosecution’s case in chief, the judicial authority shall either grant or deny the motion before calling upon the defendant to present his case in chief. If the motion is not granted, the defendant may offer evidence without having reserved the right to do so.”

       Practice Book § 885 provides: “If the motion is made at the close of all the evidence in a jury case, the judicial authority may reserve decision on the motion, submit the case to the jury, and decide the motion either before the jury return a verdict or after they return a verdict of guilty or after they are discharged without having returned a verdict.”

       Practice Book § 899 provides: “If the jury return a verdict of guilty, the judicial authority, upon motion of the defendant or upon his own motion, shall order the entry of a judgment of acquittal as to any offense specified in the verdict, or any lesser included offense, for which the evidence does not reasonably permit a finding of guilty beyond a reasonable doubt. If the judicial authority directs an acquittal for the offense specified in the verdict, but not for a lesser included offense, he may either:
      “(1) Modify the verdict accordingly; or
      “(2) Grant the defendant a new trial as to the lesser included offense.”

       We previously recognized in State v. Booker, supra, 28 Conn. App. 42 n.8, and in State v. Wolff, supra, 29 Conn. App. 527 n.5, that our Supreme Court has acknowledged the criticism of the waiver rule and its possible implications concerning the constitutional rights of a criminal defendant. See, e.g., State v. Simino, 200 Conn. 113, 118 n.5, 509 A.2d 1039 (1986); State v. Lizzi, 199 Conn. 462, 464-65, 508 A.2d 16 (1986); State v. Rutan, 194 Conn. 438, 444, 479 A.2d 1209 (1984); State v. Duhan, 194 Conn. 347, 352, 481 A.2d 48 (1984). Our Supreme Court has continued to apply the waiver rule and has not abrogated, changed or abolished the rule and its application. See State v. Medina, supra, 228 Conn. 302 n.28. Accordingly, because the waiver rule represents the existing law on this subject in our state, we apply it in this case.

       The fifth amendment to the United States constitution provides in pertinent part: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury . . . nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . .”

       The constitution of Connecticut, article first, § 9, provides: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.”

       While the defendant’s claims are set forth as three separate subissues under a general claim that the “[tjrial court erred in convicting Mr. Roy of both larceny in the first degree and theft of firearms,” the first two assertions of these claims, relating to legislative intent, are subsumed by the third assertion that his conviction violated the double jeopardy provisions of both the state and federal constitutions.

       Commission to Revise the Criminal Statutes, General Comments, Connecticut General Statutes (1971), pp. 38-39.


source: Caselaw Access Project

author: Landau, J.

license: Public Domain

text:
    City of Middletown v. William von Mahland et al.
    (12277)
    Lavery, Landau and Schaller, Js.

      Argued February 16
    decision released June 21, 1994

      Beth Z. Margulies, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Charles A. Overend, assistant attorney general, for the appellant (defendant state board of mediation and arbitration).

      Richard A. Roberts, with whom, on the brief, was Karen T. Gerber, for the appellee (defendant William von Mahland).

      Trina A. Solecki, for the city of Middletown (plaintiff).

      Albert J. McGrail, for George Lapadula (defendant).
   Landau, J.

The defendant state board of mediation and arbitration (arbitration board) appeals from the trial court’s judgment granting the motion by the plaintiff city of Middletown to compel the named defendant, William von Mahland, to testify as a witness in the underlying arbitration proceeding. The arbitration board claims that the trial court improperly (1) held that a subpoenaed witness had a due process right to have his attorney present during his testimony in an arbitration proceeding, (2) ruled in violation, of § 31-91-34 (a) of the Regulations of Connecticut State Agencies, and (3) ruled in violation of General Statutes § 1-2lg (a).

The following facts are relevant to this appeal. On May 23, 1990, von Mahland, chairman of the Middle-town inland wetlands and watercourses commission (commission), mailed a letter to Paul Gionfriddo, then mayor of Middletown, regarding the work performance of George Lapadula, the enforcement officer for the commission. As a result of the correspondence, Gionfriddo suspended Lapadula for ten days. Lapadula appealed his suspension to the arbitration board pursuant to a collective bargaining agreement between the city of Middletown and Lapadula’s union, Middletown Managers Professional Association. Subsequently, Lapadula filed a civil suit against von Mahland alleging libel because of the contents of von Mahland’s letter.

von Mahland was subpoenaed to appear and testify at Lapadula’s suspension hearing scheduled for September 10,1992. At the hearing, the union, on behalf of Lapadula, objected to the presence of von Mahland’s attorney, Richard Roberts. The arbitration board sustained the objection, and Roberts was ordered to leave the hearing pursuant to § 31-91-34 (a) of the Regulations of Connecticut State Agencies, von Mahland refused to testify unless his attorney was present. The city filed an application in Superior Court requesting an order to compel von Mahland to comply with the subpoena to testify at a new arbitration hearing. After a hearing, the court granted the city’s application for an order to compel compliance with the administrative subpoena pursuant to General Statutes § 52-412, ruling that the defendant was “entitled [as a matter of due process] to the presence of his counsel at the administrative hearing, with a reasonable opportunity for consultation which will not interfere or cause disruption of the administrative hearing.” The arbitration board is appealing this ruling.

As a threshold matter, we conclude that an order granting a request to compel testimony pursuant to General Statutes § 52-412 is an appealable interlocutory order because it satisfies the final judgment test set forth in State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). Pursuant to Curcio, an interlocutory order is appealable under two circumstances: “(1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” Id. The trial court’s decision concluded a separate and distinct proceeding because it terminated the sole proceeding in that court, i.e., the application to compel the testimony of von Mahland. See Lougee v. Grinnell, 216 Conn. 483, 487, 582 A.2d 456 (1990); Commissioner of Health Services v. Kadish, 17 Conn. App. 577, 578 n.1, 554 A.2d 1097 (1989). No further proceedings that will affect the rights of the parties can occur. Had the trial court denied von Mahland the right to have his attorney present, and had von Mahland appealed, the trial court’s order would not constitute a final judgment. The witness must wait to be found in contempt to appeal. Barbato v. J. & M. Corp., 194 Conn. 245, 249, 478 A.2d 1020 (1984). The trial court’s ruling, however, permitted von Mahland to appear with counsel, von Mahland will then testify and no sanctions will follow. Thus, the issue presented is an appealable final judgment.

I

The arbitration board first challenges the trial court’s ruling that von Mahland, because of his status as a defendant in a pending related defamation action and his right to a fair trial therein, had a due process right to have counsel present during his testimony at the arbitration hearing. The trial court, it claims, improperly applied only the test of Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). The arbitration board argues that the trial court did not go far enough by just balancing the factors set out in Mathews; after a, Mathews balancing analysis, it was required to weigh the result against the presumption that there is no right to counsel unless the litigant is faced with the risk of loss of liberty, such as incarceration. The arbitration board relies on Lassiter v. Dept. of Social Ser vices, 452 U.S. 18, 101 S. Ct. 2153, 68 L. Ed. 2d 640 (1981), and Lavertue v. Niman, 196 Conn. 403, 493 A.2d 213 (1985). This reliance is misplaced. The United States Supreme Court in Lassiter held that an indigent litigant did not have the right to court-appointed counsel in a termination of parental rights case. In Lavertue v. Niman, supra, 403, the court addressed whether an indigent litigant had a right to court-appointed counsel in the unique configuration of a paternity action. The case presented on appeal involves neither an indigent defendant nor a request for appointed counsel. Rather, it concerns the scope of due process in the context of an individual’s right to a fair trial.

The arbitration board next argues that von Mahland did not have a due process right to assistance of counsel in either the defamation case or the arbitration hearing under the sixth and fourteenth amendments, von Mahland claims that the due process right of assistance of counsel is not the issue presented in this appeal. He claims that the issue is whether, under the fifth and fourteenth amendments, his due process right to a fair trial in a separate defamation suit extends to a related arbitration proceeding, at which he has been compelled to testify by subpoena, because his testimony might affect a recognizable property interest. We agree with von Mahland.

We acknowledge that this is an unusual situation that presents this court with a question not previously decided. Our conclusion, however, is hardly a novel one. The fourteenth amendment to the United States constitution provides in part that the “ ‘[s]tate [shall not] deprive any person of life, liberty, or property, without due process of law . . . .’ ” Tedesco v. Stamford, 222 Conn. 233, 241, 610 A.2d 574 (1992). “[A] state may not, consistent with due process of law, create the conditions that will strip an individual of an interest protected under the due process clause.” In re Valerie D., 223 Conn. 492, 534, 613 A.2d 748 (1992).

“Due process analysis begins with the identification of the life, liberty or property interest at stake.” State v. Campbell, 224 Conn. 168, 181, 617 A.2d 889 (1992), cert. denied, U.S. , 113 S. Ct. 2365, 124 L. Ed. 2d 271 (1993). “ ‘Once it is determined that due process applies, the question remains what process is due.’ Morrissey v. Brewer, [408 U.S. 471, 481, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1992)].” Bartlett v. Krause, 209 Conn. 352, 369, 551 A.2d 710 (1988).

“Liberty interests protected by the Fourteenth Amendment may arise from two sources — the Due Process Clause itself and the laws of the States.” (Internal quotation marks omitted.) State v. Campbell, supra, 224 Conn. 182. The United States Supreme Court has held in Logan v. Zimmerman Brush Co., 455 U.S. 422, 429, 102 S. Ct. 1148, 71L. Ed. 2d 265 (1982), that “the Due Process Clauses protect civil litigants who seek recourse in the courts, either as defendants hoping to protect their property or as plaintiffs attempting to redress grievances. . . . [T]he Fourteenth Amendment’s Due Process Clause has been interpreted as preventing the States from denying potential litigants use of established adjudicatory procedures . . . .” (Emphasis added.) In Goldberg v. Kelly, 397 U.S. 254, 270, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970), the United States Supreme Court recognized the severe disadvantage that an unrepresented litigant would face without attorney representation: “We do not say that counsel must be provided at the [welfare benefit] pretermination hearing, but only that the recipient must be allowed to retain an attorney if he so desires.” We conclude that von Mahland has a constitutionally protected property interest derived from the due process clause in defending the defamation action.

The issue then is whether von Mahland would have been deprived of his property right without due process of law if he was required to testify without the presence of his attorney. “ ‘[T]he due process clauses of the state and federal constitutions require that one subject to significant deprivation of liberty or property must be accorded adequate notice and a meaningful opportunity to be heard.’ Counsel on Probate Judicial Conduct re: James H. Kinsella, 193 Conn. 180, 207, 476 A.2d 1041 (1984); Sager v. GAB Business Services, Inc., 11 Conn. App. 693, 695, 529 A.2d 226 (1987). We note, however, that ‘[d]ue process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances. Cafeteria Workers v. McElroy, 367 U.S. 886, 895 [81 S. Ct. 1743, 6 L. Ed. 2d 1230] (1961). [D]ue process is flexible and calls for such procedural protections as the particular situation demands. Morrissey v. Brewer, [supra, 408 U.S. 481]. Accordingly, resolution of the issue whether the [grievance] procedures provided here are constitutionally sufficient requires analysis of the governmental and private interests that are affected.’ (Internal quotation marks omitted.) Mathews v. Eldridge, [supra, 424 U.S. 334] ....

“In Mathews v. Eldridge, supra, [424 U.S.] 335, the court stated that the ‘specific dictates of due process generally [require] consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.’ ” Tedesco v. Stamford, supra, 222 Conn. 242-43.

von Mahland was subpoenaed to testify in an arbitration hearing that would address Lapadula’s suspension. The suspension resulted from a letter written by von Mahland, in his capacity as chairman of the Middletown inland wetlands and watercourses commission, and mailed to the mayor of Middletown. On the basis of von Mahland’s letter, Lapadula commenced a separate action against von Mahland, alleging libel. The letter is both the subject of the grievance hearing that addresses Lapadula’s suspension and the basis of the allegations of libel against von Mahland. When von Mahland requests that his attorney be present at the suspension hearing, he seeks to protect a recognizable property interest. In not permitting von Mahland to have his attorney present during his testimony in the related arbitration hearing, the state would be denying him the ability to obtain a fair trial in defense of the defamation suit, a significant private interest.

The trial court appreciated the risk of error that would result from von Mahland’s inability to defend fully and fairly the allegation of libel if Lapadula were allowed to elicit his subpoenaed testimony. At the arbitration hearing, von Mahland would be cross-examined by the same attorney who is representing Lapadula in the pending civil matter. The exclusion of von Mahland’s attorney from the proceeding would create a potentially damaging predicament that would require some substitute or additional procedural protection — in this case, the opportunity to consult with his attorney.

The trial court was cognizant of the governmental interests including the functions involved and the administrative and fiscal burdens that could have resulted from the employment of additional safeguards. We conclude, as the trial court did, that while the state has a legitimate interest in the orderly resolution of labor disputes, and in conducting hearings that are closed to third parties, neither concern outweighed the necessity of preserving the defendant’s right to a fair trial. We are convinced, upon our own review, that the trial court correctly balanced the interests of the litigants and third parties involved in determining that von Mahland was entitled to appear with counsel and to have a reasonable opportunity for consultation that would not interfere with or cause disruption of the state’s administrative hearing.

The arbitration board cites In re Groban, 352 U.S. 330, 77 S. Ct. 510, 1 L. Ed. 2d 376 (1957), for the proposition that a witness in an administrative investigatory proceeding has no due process right to the presence of counsel. In Groban, the court was faced with a setting distinguishable from the one here. A fire marshall initiated an administrative investigation “solely to elicit facts relating to the causes and circumstances of the fire.” Id., 332. The appellants claimed a due process right to have their attorneys present during their subpoenaed testimony, and the court denied that any right existed. The court recognized that even though the “appellants were under a legal duty to speak and their testimony might provide a basis for criminal charges against them”; (emphasis added) id., 332; this did not provide the basis of a constitutional right to the assistance of counsel. The appellants in Groban had neither a property right nor a liberty right that would have entitled them to have their attorneys present at the investigative hearing. The fact that there was a possi bilily that charges would be brought against them as a result of the proceeding was not sufficient, von Mahland, on the other hand, has a recognizable property interest in defending the pending allegations against him. This property right gives rise to the necessity to balance the interests of the individuals involved in the arbitration proceeding in keeping with the principles of due process.

This case is distinguishable from Groban in another respect. The Groban court placed great emphasis on the fire marshall’s legal duty to ascertain, in the public interest, “ ‘whether the fire was the result of carelessness or design’ and to arrest any person against whom there was sufficient evidence on which to base a charge of arson.” In re Groban, supra, 352 U.S. 332. In balancing the interests of the individuals involved, it determined that the fire marshall’s interest in conducting an “administrative investigation of incidents damaging to the economy or dangerous to the public” far outweighed the rights of the appellants. Id.

Weighing von Mahland’s operative property interest in the related civil suit against the interest of the arbitration board that the administrative hearing not be disturbed or interfered with tips the scales in favor of von Mahland. We conclude that the trial court was correct in determining that von Mahland’s property interest in the defamation suit extended to the arbitration proceeding, and that due process required that he be allowed the opportunity to consult with counsel tempered with the caveat that the consultation not interfere with or cause disruption of the administrative hearing.

II

The arbitration board next claims that the trial court’s ruling violates § 31-91-34 (a) of the Regulations of Connecticut State Agencies. This regulation provides “[pjersons having a direct interest in the arbitration proceedings are entitled to attend the hearings. It shall be discretionary with the chairman and subject to the agreement of all parties whether any other person may attend.” The regulation governs persons who have a direct interest in the proceedings, and prohibits those persons that do not from attending such proceedings. An individual who is called to testify as a witness at an arbitration hearing is compelled by subpoena to attend. Such a witness is not present pursuant to § 31-91-34 (a); that witness is present under the compulsion of law and, therefore, an entirely different set of principles governs his appearance. See DiPalma v. Wiesen, 163 Conn. 293, 298-99, 303 A.2d 709 (1972). von Mahland was required by law to appear; his appearance and his attorney’s attendance are not governed by § 31-91-34 (a). Thus, we conclude that the trial court’s ruling does not violate that regulation.

Ill

The arbitration board further argues that the trial court’s ruling that von Mahland had a constitutionally protected right to have his attorney present at the arbitration hearing violates General Statutes § l-21g (a), part of the Freedom of Information Act. It claims that the arbitration board had the authority to limit the attendance to those persons invited, and because von Mahland’s attorney was not invited, he was properly excluded. We disagree.

It is true that § l-21g (a) authorizes the arbitration board to limit the attendance of persons at the hearing “to persons invited by said body to present testimony or opinion pertinent to matters before said body . . . .’’As previously discussed, however, it is also true that when the board subpoenaed von Mahland to testify, it implicitly invited his attorney, as a matter of due process, to attend based on the unusual circumstances extraneous to the arbitration proceeding.

We, therefore, conclude that the order of the trial court was not improper.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants in this action are the arbitration board, William von Mahland and George Lapadula.

       The underlying arbitration proceeding is currently pending before the board of mediation and arbitration of the state labor department.

       Section 31-91-34 (a) of the Regulations of Connecticut State Agencies provides: “Persons having a direct interest in the arbitration proceedings are entitled to attend the hearings. It shall be discretionary with the chairman and subject to the agreement of all parties whether any other persons may attend.”

       Genera] Statutes § l-21g (a) provides: “At an executive session of apublic agency, attendance shall be limited to members of said body and persons invited by said body to present testimony or opinion pertinent to matters before said body provided that such persons’ attendance shall be limited to the period for which their presence is necessary to present such testimony or opinion and, provided further, that the minutes of such executive session shall disclose all persons who are in attendance except job applicants who attend for the purpose of being interviewed by such agency.”

       The defamation suit is no longer pending; the suit has been resolved in favor of von Mahland by way of summary judgment. A second suit, arising out of the same set of facts, in which von Mahland is named a defendant, was filed by Lapadula and is pending in Middletown Superior Court. The complaint in the pending case alleges civil rights violations, various violations of constitutional provisions and fraudulent interference with a contract.

       Roberts has filed an appearance to represent von Mahland in the pending civil matters.

       General Statutes § 52-412 provides: “(a) Any arbitrator or umpire and any other persons qualified by law to issue subpoenas in civil actions shall have power to issue subpoenas for the attendance of witnesses and for the production of books, papers and other evidence at arbitration hearings. The subpoenas shall be served in the manner provided by law for the service of subpoenas in a civil action and shall be returnable to the arbitrator or arbitrators or umpire.
      “(b) On application of an arbitrator, umpire or other person, the superior court for the judicial district in which one of the parties resides or, in the case of land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, shall order necessary process to issue to compel compliance with subpoenas in an arbitration matter in the manner provided by law concerning subpoenas in a civil action.
      “(c) Any party to a written agreement for arbitration may make application to the superior court, or, when the court is not in session, to a judge thereof, having jurisdiction as provided in subsection (b), for an order directing the taking of depositions, in the manner and for the reasons prescribed by law for taking depositions to be used in a civil action, for use as evidence in an arbitration.”

       The final judgment in an arbitration proceeding is ordinarily an order of the trial court modifying, vacating or confirming the arbitrator’s award. Because the parties are still in the midst of arbitration, the trial court’s order granting the motion to compel is interlocutory.

       In Mathews v. Eldridge, supra, 424 U.S. 335, the court stated that the “specific dictates of due process generally [require] consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”

       The question of whether an individual has a property interest is normally a matter of law for the trial court, thus subject to our de novo review on appeal. Carr v. Bridgewater, 224 Conn. 44, 54, 616 A.2d 257 (1992).

       “ ‘[Although the framers of the Fourteenth Amendment . . . could not have foreseen the rise of public-employee unions, grievance procedures, and other phenomena of modern labor relations . . . the concept of due process is sufficiently flexible to allow the courts to work out an accommodation between the interest in an orderly system of labor relations in the public sector as elsewhere and [a witness’ right to receive a fair trial in a related action].’ ” Tedesco v. Stamford, supra, 222 Conn. 245.


author: Dupont, C. J.

text:
    Nancy Tremaine v. John M. Tremaine
    (11164)
    Dupont, C. J., La very and Heiman, Js.
    Argued February 22
    decision released June 3, 1994

      Wesley W. Horton, with whom were Richard L. Goldblatt and Susan M. Cormier, and, on the brief, Christy L. Scott, legal intern, for the appellant (defendant).

      Herman H. Tarnow, for the appellee (plaintiff).
   Dupont, C. J.

This is an appeal by the defendant who was ordered on February 14, 1992, to pay lump sum alimony of $350,000 and periodic alimony of $1000 per week until June 1, 1995, retroactive to June 1, 1990, to the plaintiff. The defendant claims that the trial court (1) was precluded from ordering the payment of lump sum alimony by the parties’ separation agreement dated December 2,1987, which was incorporated into the dissolution judgment dated February 5,1988, (2) improperly excluded the testimony of the plaintiff’s former attorney on the basis of the attorney-client privilege, and (3) improperly construed a trust agreement under which the defendant is an income beneficiary to determine that its corpus is an asset of the defendant. We agree with the defendant on his first claim and reverse the judgment of the trial court.

I

The parties were married in 1972 and had four minor children as of the date of dissolution. In July, 1986, the plaintiff filed a complaint seeking a legal separation from the defendant, alleging that their marriage had broken down irretrievably. The complaint was later amended to seek a decree of dissolution.

The parties’ separation agreement, which was approved by the trial court, Novack, J., on February 5, 1988, provided, among other things, that the defendant would pay alimony to the plaintiff for seven years from the date of the dissolution decree or until her death or remarriage, whichever occurred first. The plaintiff agreed, however, “not to petition for alimony during the first twenty-four months” following the dissolution decree. At the end of that two year period, the agreement provided that the court “will enter appropriate orders for alimony to the WIFE, but the alimony term shall not exceed a date of seven years from the date of the decree of dissolution of marriage. The court, at such time, shall take into consideration the statutory criteria as set forth in Section 46b-81 of the General Statutes of Connecticut, as well as the HUSBAND’S obligation for the child support provisions as provided in this agreement. . . . Any order for alimony entered in accordance with the above shall be retroactive to the date which is computed to be twenty-four months from the date of the decree of dissolution of marriage.”

After the two year period had elapsed, the plaintiff, who had not remarried, sought alimony. The trial court, Hon. Margaret C. Driscoll, state trial referee, issued a memorandum of decision on February 14,1992, stating that the only limit on its discretion in awarding alimony was that payments could be made for no more than five years because under the stipulation the alimony was made retroactive to two years after the decree and could not last beyond seven years after the decree. It went on to say that “[wjhile the court inadvertently used the word periodic in describing the alimony the court could award in its memorandum of decision on the motion to strike, that was not an accurate statement. The court may indeed award both lump sum and periodic alimony. See Eldridge v. Eldridge, 4 Conn. App. 489 [492, 495 A.2d 283 (1985)]; Basile v. Basile, 185 Conn. 141, 142, 143 [440 A.2d 876 (1981)]. There appears to be no provision in the separation agreement which specifically prohibits it, and the provision concerning alimony does not limit it in any way except duration.”

The court then noted that the plaintiff had received the family residence, valued between $750,000 and $975,000, and that she had assumed two mortgages on the property totaling $239,000. It also noted that she had received physical custody of the four children, and that the defendant had been ordered to pay $36,000 annually in child support. The court then found that at the time of the dissolution the defendant had assets of $1,722,266 and an annual income of $136,000. The plaintiff had minimal work experience and had monthly expenses of $10,917. The court further found that the parties had been married for fourteen years, that the cause of the dissolution was the. defendant’s conduct, that both parties were accustomed to an “exceedingly affluent lifestyle and led active, social lives,” that the defendant’s income and assets were substantially more than he reported in his financial affidavits, and that the plaintiff’s employability was limited by her age, her long absence from the labor market, and the needs of her children, whose best interests counseled against the plaintiff’s seeking full-time employment. After reviewing the factors listed in General Statutes § 46b-82, the court ordered the payment of both periodic and lump sum alimony.

The defendant claims that the trial court improperly determined that it had the power to award lump sum alimony, arguing that the separation agreement authorized an award of only periodic alimony. This claim must be resolved by a review of that agreement.

A separation agreement incorporated into a judgment must be construed as a contract. Barnard v. Barnard, 214 Conn. 99, 109, 570 A.2d 690 (1990); Zivic v. Zivic, 26 Conn. App. 5, 7, 596 A.2d 475 (1991). “A contract is to be construed as a whole and all relevant provisions will be considered together.” Lar-Rob Bus Corp. v. Fairfield, 170 Conn. 397, 407, 365 A.2d 1086 (1976). A contract must be interpreted to effectuate the intent of the parties, as determined by the language used by the parties, the circumstances surrounding the transaction, and the purpose the parties sought to accomplish. Barnard v. Barnard, supra, 109; Lar-Rob Bus Corp. v. Fairfield, supra, 406-407. “In interpreting contract terms, we have repeatedly stated that the intent of the parties is to be ascertained by a fair and reasonable construction of the written words and that the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract.” Sturman v. Socha, 191 Conn. 1, 10, 463 A.2d 527 (1983); Marcus v. Marcus, 175 Conn. 138, 141-42, 394 A.2d 727 (1978). Here, our task is to determine whether the trial court correctly read the term “alimony” as used in the separation agreement to include lump sum alimony.

The defendant argues that the separation agreement, when read as a whole, demonstrates that the parties intended that any alimony award be limited to periodic alimony. He cites not only the language in article II of the separation agreement entitled “Alimony and Support,” but also various provisions throughout the separation agreement.

The language of article II does not expressly exclude or include lump sum alimony. It does specify, however, that the defendant’s obligation to pay alimony will commence two years following the date of the dissolution decree, with any subsequent alimony order retroactive to that date, and that the alimony “term” will expire seven years after the date of the decree. The payment obligation would also cease upon the death of the defendant or the plaintiff, or the plaintiff’s remarriage. The defendant correctly contends that these provisions are indicative of an award of periodic alimony. See, e.g., Ashton v. Ashton, 31 Conn. App. 736, 744-45, 627 A.2d 943 (1993), cert. denied, 228 Conn. 901, 634 A.2d 295 (1994); Vandal v. Vandal, 31 Conn. App. 561, 564-65, 626 A.2d 784 (1993).

The defendant also cites other parts of the separation agreement in support of his interpretation. These include a provision in article X, entitled “Tax Application,” that declares all payments pursuant to the alimony section of article II “are intended to be alimony deductible by the HUSBAND and includible by the WIFE in their entirety. . . . The WIFE agrees to include all of the payments which she receives as set forth in [the alimony provisions] as income in her Federal and, if appropriate, state and/or Municipal tax returns and that she shall be solely responsible for any and all taxes on such income.” The defendant argues that because lump sum alimony is generally not taxable to the payee under the Internal Revenue Code, the provision is indicative of the parties’ intent that the agreement does not authorize an award of lump sum alimony. We agree that this provision is incompatible with an intent that the defendant pay lump sum alimony. See 26 U.S.C. §§ 71 (a) and (f) and 215.

The defendant also cites a provision in article XIII that states that “[t]he termination date of alimony, as provided in [article II] shall not be subject to any modification as provided in Section [46b-86a] of the General Statutes of Connecticut. Except as to this termination date the law of the State of Connecticut as to substantial change in circumstances shall be applicable.” He contends that because lump sum alimony is not modifiable as a matter of law, whereas periodic alimony is modifiable unless the decree explicitly precludes modification, the presence in the separation agreement of language regarding the nonmodifiability of the alimony payments indicates that only periodic alimony was contemplated by the parties. “Lump sum alimony, unlike periodic alimony, is a final judgment which cannot be modified even should there be a substantial change in circumstances.” Scoville v. Scoville, 179 Conn. 277, 279-80, 426 A.2d 271 (1979). We therefore agree with the defendant.

Despite the provisions of the separation agreement cited by the defendant, the trial court found that nothing in that agreement prohibited it from awarding lump sum alimony. In its memorandum of decision, the trial court did not analyze the agreement to support its interpretation of the separation agreement, but merely noted that in general, a court has discretion to award both lump sum and periodic alimony under § 46b-82, citing Eldridge v. Eldridge, supra, 4 Conn. App. 492. It then stated that it found no provision in the agreement that specifically prohibited lump sum alimony. The court thus relied solely on its own discretionary powers, rather than the particular language of the agreement, in ordering the $350,000 lump sum payment.

We conclude that the several provisions in the separation agreement as previously discussed make it clear that only periodic alimony was intended by the parties to be the subject of the award of alimony and that the word “alimony” as used in the agreement does not include lump sum alimony. This interpretation of the agreement does not depend on the taking of extrinsic evidence to divine the intent of the parties because the terms of the contract are not ambiguous. See Barnard v. Barnard, supra, 214 Conn. 110. The provision of the agreement relating to the taxation of the payments to the plaintiff can be effectuated only by restricting the alimony award to periodic payments. The sections of the agreement dealing with alimony and the nonmodifiability of the term of payment also support the defendant’s contention.

We hold that the trial court improperly interpreted the separation agreement as authorizing the plaintiff to receive lump sum alimony from the defendant. Our conclusion requires that this case be remanded to the trial court for a new hearing. “ ‘ “The rendering of a judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other.” Ehrenkranz v. Ehrenkranz, 2 Conn. App. 416, 424, 479 A.2d 826 (1984).’ Sunbury v. Sunbury, 210 Conn. 170, 175, 553 A.2d 612 (1989).” Fahy v. Fahy, 227 Conn. 505, 515, 630 A.2d 1328 (1993). Because the financial orders of the trial court granting both lump sum and periodic alimony are interwoven, the trial court must reconsider the appropriate amount for a periodic alimony award. Michel v. Michel, 31 Conn. App. 338, 624 A.2d 914 (1993); Mulholland v. Mulholland, 26 Conn. App. 585, 590, 602 A.2d 1054 (1992). The amount the plaintiff should receive as periodic alimony is necessarily affected by our conclusion that lump sum alimony could not be awarded.

Our resolution of this issue makes it unnecessary to consider the defendant’s claim that the trial court improperly excluded as privileged the testimony of the plaintiff’s former attorney.

II

The defendant’s final claim is that the trial court improperly included the corpus of an irrevocable trust of which the defendant is an income beneficiary as an asset of the defendant. We address the merits of this claim because this issue will recur on remand in determining the proper amount of periodic alimony to be awarded to the plaintiff.

The award to the plaintiff of $1000 per week in periodic alimony and $350,000 in lump sum alimony was based in part on the trial court’s conclusion that the defendant, who had reported assets worth $1,114,266 and an annual income of $136,000 at the time of the dissolution stipulation, had substantially greater income and assets by the time of the hearing that is the subject of this appeal. The court characterized the defendant’s affidavits and testimony as “less than forthcoming.” The court listed among the defendant’s sources of income and assets the interest and much of the principal of fund B of the Burton G. Tremaine Trust #7B (BGT trust), which the court found was subject to the defendant’s total control with the exception of certain stock of a private corporation called the Miller Company.

When the trust for the defendant was created on October 7, 1988, it consisted solely of shares of common stock in companies publicly traded (except for the Miller Company stock, which is not involved here) and cash of $36.12, with a total trust value of $500,000. The agreement provided that additional property could be added to the trust, but not later than December 1,1989. The value of Miller Company stock as of October 7, 1988, was $554 per share (902 shares were worth $499,708, according to the figures listed in fund A of the trust agreement). The trust for the defendant included 341 shares of Miller Company stock, with a total value of $188,914. The value of all other property in the trust was, therefore, $311,086.

Among the assets included in the trust principal, as of the date of the judgment in this appeal, is the house in which the defendant and his second wife live. The trial court found, and the defendant does not contest, that its cost, along with furnishings, was $644,000. This house was purchased by the trust in 1988, the same year as the judgment of dissolution of the marriage of the plaintiff and the defendant, and the court reasoned that it was an asset of the defendant “since he has total control of the disposition of the principal of which this is a part.” The defendant was also found by the court to have obtained additional funds of about $50,000 from the trust for wedding expenses, legal fees, and the repayment of a loan. The court noted that, in the BGT trust agreement, “the defendant has the right from time to time to choose an investment broker who has the right not only to invest and reinvest the principal of the trust, except for the Miller stock, but also to dispose of that principal. Without the Miller stock, the principal in the trust in 1989 was over a million dollars.” The court determined that, under the BGT trust agreement, the defendant had been given control “in a sense of giving him the right to appoint the person who decides what to do with the disposition of the assets.”

The defendant claims that the trial court incorrectly construed the language of the trust provision granting the investment advisor power to direct the disposal of the trust principal to mean that the advisor could distribute the corpus of the trust to the defendant. This, he claims, is the result of the trial court’s confusing the investment advisor’s power to direct the disposal of principal in the sense of selling assets to maximize trust profits with the trustee’s power to distribute principal as payment to the beneficiary. As a consequence of this alleged misinterpretation, the defendant claims that the court improperly found that he had complete control over the trust and therefore improperly included his residence as one of his assets.

The BGT trust agreement was established on October 7,1988, between the settlor, Burton G. Tremaine, Sr., of Madison, Connecticut, and the trustee, AmeriTrust Company National Association of Cleveland, Ohio. The trust was created subsequent to the signing of the separation agreement between the plaintiff and the defendant, and eight months after the judgment of dissolution of their marriage. The trust agreement specifies that “[t]he trusts created by this instrument shall be deemed to have their situs in the State of Ohio. The validity of the trusts created hereunder and the validity, construction and interpretation of the provisions contained in this instrument shall be determined in accordance with the laws of the State of Ohio from time to time in force.” Thus, we must interpret the trust in accordance with Ohio substantive law.

As in Connecticut, in Ohio the intent of the settlor is the touchstone of trust interpretation, and will be given effect wherever legally possible. Stevens v. National City Bank, 45 Ohio St. 3d 276, 278-79, 544 N.E.2d 612 (1989); Wills v. Union Savings & Trust, 69 Ohio St. 2d 382, 433 N.E.2d 152 (1982); see also Connecticut National Bank & Trust Co. v. Chadwick, 217 Conn. 260, 265, 585 A.2d 1189 (1991). “Generally, when the language of the instrument is not ambiguous, intent can be ascertained from the express terms of the trust itself.” Domo v. McCarthy, 66 Ohio St. 3d 312, 314, 612 N.E.2d 706 (1993). All of the parts of the trust instrument must be construed together, with every word given effect, if possible. Stevens v. National City Bank, supra, 279. Words are presumed to be used in their ordinary sense. Id. Generally, parties do not insert meaningless provisions in an agreement and every provision of an agreement should be given effect. Hatcho Corp. v. Della Pietra, 195 Conn. 18, 23, 485 A.2d 1285 (1985). In this case, the powers and duties of both the trustee and the investment advisor can be determined from the four corners of the trust agreement. See Stevens v. National City Bank, supra, 279.

The BGT trust explicitly states, in paragraph two, that the trustee has the power to pay to the beneficiaries, in addition to the net income from the trust, “so much of the principal as shall, in the sole discretion of the Trustee, seem necessary or advisable for his or her comfortable care, maintenance and support.” The trust provides, in paragraph three, the income beneficiary with the right to appoint an investment advisor, who has the power to “direct the investment, reinvestment or disposal of the Trust Property included in the trust for the income beneficiary.” During the term of the investment advisor’s appointment, the trustee is not required to make any investment review or recommendation regarding the trust property, and is indemnified from liability for any losses resulting from the acquisition or retention of property pursuant to the direction of the investment advisor. No indemnity is expressly provided, however, for the disposal of property pursuant to the direction of the investment advisor. Subject to the power of the investment advisor to invest, reinvest, or dispose of trust property, in paragraph four the trustee is given the discretionary power to hold, manage, retain or dispose of the trust property in the best interest of the beneficiaries, and to make any division and distribution necessary to effectuate the terms of the trust in an equitable manner.

Although in paragraph two the trust gives the trustee the sole discretion to dispose of trust property, the two subsequent paragraphs of the trust modify that discretion to make it operative only in the event that the income beneficiary does not appoint an investment advisor, or that the advisor does not direct the trustee to invest, reinvest or dispose of the property. The investment advisor’s appointment suspends the responsibility of the trustee for “making any investment review or recommendation” and grants the trustee indemnity for any loss resulting from the acquisition or retention of any property. No indemnity is needed as to the distribution of a trust asset because there is no loss in value of the asset when it is distributed. The investment advisor is to “direct the investment, reinvestment or disposal of the trust property included in the trust for the income of the beneficiary.”

The investment advisor’s power to “direct the investment, reinvestment or disposal of the trust property” is a power “to guide; to regulate; [and] to control” the trust’s investments. (Emphasis added.) Ballantine’s Law Dictionary (3d Ed. 1969). This trust agreement was not a usual one, providing for the appointment by a trustee of an investment advisor to assist in the administration of a trust estate; see Connor v. Hart, 157 Conn. 265, 253 A.2d 9 (1968); but an agreement that allowed a beneficiary to appoint an investment counselor, who would serve at the beneficiary’s pleasure, and who could control the investments, reinvestments, and disposal of the trust property, with the exception of the Miller Company shares. Paragraph three of the agreement makes a distinct and clear difference between the trustee’s sole power to deal with the Miller stock and the investment advisor’s power to deal with the other stock of the corpus. The defendant, in his brief, correctly notes that the investment advisor instructed the trustee to purchase the house in which the defendant resides, and that the trustee did so. The trustee did so because the investment advisor was given the power to direct investments. We conclude that the language of the trust when read as a whole gives the defendant beneficiary actual control over trust principal.

We agree with the trial court that the distribution to the defendant from the trust of $50,000 in trust capital for wedding expenses, legal fees and the repayment of a loan, as well as the purchase of the defendant’s house, supports the trial court’s conclusion that the corpus of the trust, exclusive of the Miller Company stock, in reality, is an asset of the defendant.

The act of the investment advisor in directing the trustee to purchase a particular house for the defendant shows that the principal of the trust is really the defendant’s own. The cost of the house and furnishings and the distribution of $50,000 to the defendant equals approximately $700,000, a figure far exceeding the trust’s original value of $500,000.

In Ohio, “the trustee has a duty to invest idle trust funds so that they will be productive of income. . . . In doing so, the trustee is under a duty to make such investments in such securities as would be acquired by prudent men of discretion and intelligence in such matters who are seeking a reasonable income and the preservation of their capital.” (Citations omitted; internal quotation marks omitted.) Stevens v. National City Bank, supra, 45 Ohio St. 3d 280; see also Jackson v. Conland, 178 Conn. 52, 55, 420 A.2d 898 (1979); Berry v. McCourt, 1 Ohio App. 2d 172, 185-86, 204 N.E.2d 235 (1965). This duty to invest is circumscribed by Ohio statute. Section 2109.37 (A) of the Ohio Revised Code states that “[ejxcept as otherwise provided by law or by the instrument creating the trust, a fiduciary having funds belonging to a trust which are to be invested may invest them in the following. ...” The statute then goes on to list permissible investments for trust fiduciaries, primarily consisting of various types of bonds, notes and securities.

The only mention of real estate in the statute is in subsection (C). Section 2109.37 (C) (1) allows, with court approval, the investment of trust funds “in productive real estate located within the state . . . .” The residence purchased for the defendant and his second wife was not court approved and is not productive real estate, because the property produces no income for the trust. Furthermore, it is not located within Ohio.

The statute provides, however, that the trust may explicitly authorize investments not enumerated by the legislature. See Vacha v. Vacha, 179 N.E.2d 187 (Ohio 1961) (trustee may be given discretion to invest in “nonlegals,” i.e., securities not listed in statute); see also United States Trust Co. v. Bohart, 197 Conn. 34, 48, 495 A.2d 1034 (1985). Here, the trust instrument gives the investment advisor the power to direct the investment and reinvestment of the trust property without stating any restrictions as to the kind or character of property. Although this grant of investment power does increase the authority of the investment advisor to direct the trustee to invest; see Vacha v. Vacha, supra, 191; the real estate purchased must still be an investment calculated to produce present or future income for the trust. The defendant’s residence produces no present income, and according to the defendant’s own financial statement, has depreciated in value from $642,974.82 to $498,000, a loss of almost $150,000.

The trial court found that, except for the Miller Company stock, all of the trust capital was an asset of the defendant. We agree.

The judgment of the trial court is reversed and the case is remanded with direction to establish an appropriate award of periodic alimony to the plaintiff.

In this opinion the other judges concurred.

       The court, in approving the written separation agreement, stated that the agreement was “found to be fair and equitable, and may be incorporated by reference in the decree.” See General Statutes § 46b-66.

       The trial court, Hon. Margaret C. Driscoll, state trial referee, involved in this appeal determined that the agreement erroneously referred to General Statutes § 46b-81 instead of General Statutes § 46b-82, and therefore the court used the factors of the latter statute in establishing the amount of alimony to be awarded. The court thus concluded that the agreement was concerned with a continuing duty to support, rather than an equitable division of the property of the parties. See Berg v. Berg, 24 Conn. App. 509, 513, 589 A.2d 885, cert. denied, 219 Conn. 908, 593 A.2d 135 (1991).

       The court had earlier denied a motion by the defendant to strike evidence concerning certain trusts, which is not claimed here to be improper. In its memorandum of decision dated July 12,1991, the court stated that “[t]he issue before this court is whether the defendant’s interest in various trusts which are irrevocable and for which the trustees have paid income thereof to the defendants should be considered in determining his income for purposes of periodic alimony. ” (Emphasis added.)

       General Statutes § 46b-82 provides in pertinent part: “In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party . . . shall consider the length of the marriage, the causes for the . . . dissolution of the marriage . . . 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 [the section on assignment of property], and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent’s securing employment.”

       The trial court did not rely on any evidence in reaching its conclusion as to the intent of the parties.

       In construing the alimony provisions of the separation agreement, the defendant sought to introduce the testimony of Jerroll Silverberg, the plaintiffs prior counsel in the dissolution action and one of the authors of the separation agreement. The court sustained the plaintiff’s objection to that testimony. Because the separation agreement is unambiguous, we have been able to remain within its four corners in determining the intent of the parties, and need not consider this claim.

       At the time of the dissolution and the separation agreement, the irrevocable trust agreement had not yet been executed.

       The defendant stated on his financial affidavit submitted at the hearing that is the subject of this appeal that he “believes the fair market value of the residence is $488,000.”

       The Burton G. Tremaine Irrevocable Trust Agreement states in part:
      “2. (a) During the life of a child of Burton G. Tremaine, Jr., the Trustee shall pay to or for the benefit of such child the net income from the fund designated for him or her .... In addition to such payments of income, the Trustee shall pay to him or her for his or her benefit so much of the principal as shall, in the sole discretion of the Trustee, seem necessary or advisable for his or her comfortable care, maintenance and support. In making the foregoing determination, the Trustee may take into account other means or income available to the child. . . .
      “3. The income beneficiary of each trust hereunder shall have the right to designate and appoint from time to time a competent, professional, institutional investment advisor . . . who shall direct the investment, reinvestment or disposal of the Trust Property included in the trust for the income

        of the beneficiary. ... If an investment advisor is so designated and appointed, during the term of his appointment the Trustee shall not be responsible in any way for making any investment remew or recommendation with respect to the Trust Property, and the Trustee shall not be liable for any loss which may result by reason of the acquisition or retention of any property acquired [or retained] pursuant to the direction of any such investment advisor .... The foregoing provisions of this Paragraph 3 shall not apply to any stock or other interests held in this Trust of The Miller Company. In respect thereto, the Trustee shall have sole and exclusive right and power to deal with the same as in its complete and absolute discretion may seem best to it for the benefit of all interested in the Trust. . . .
      “4. Subject to the foregoing provisions concerning investment advice, the Trustee shall have the following powers to exercise as, in the discretion of the Trustee, shall appear to be in the best interest of the beneficiaries of the Trust:
      “(a) To hold and manage the Trust Property and collect the income therefrom and to invest and reinvest it as the Trustee shall deem best, without restriction as to the kind or character of property so held, including, without limitation, investment in common stocks, common trust funds or mutual funds or other securities or real estate, all without the need for diversification as to kind or amount; to retain any part or all of the Trust Property or to dispose of any such property as the Trustee shall deem best; and to ... in any . . . manner dispose of any part of the Trust Property, real or personal, upon such terms and conditions as appear desirable. . . .
      “(g) To make any division and distribution necessary or appropriate to carry into effect the terms of this trust in such manner as the Trustee may deem fair and equitable . . . .” (Emphasis added.)

       The law as it existed at the time an investment is made controls the validity of the investment. Home Savings & Loan Co. v. Strain, 130 Ohio St. 53, 196 N.E. 770 (1935). The relevant portions of this statute have not changed since the establishment of the trust in 1988.