author: Foti, J.

text:
    J.R. Gionfriddo v. Carter-Howe Development Corporation
    (10227)
    Norcott, Foti and Landau, Js.

      Argued March 24
    decision released June 9, 1992

      Philip L. Steele, for the appellant (plaintiff).

      Harold R. Cummings, with whom, on the brief, was Vincent J. Purnhagen, for the appellee (defendant).
   Foti, J.

The plaintiff brought this action against the defendant landlord for breach of a lease agreement, misrepresentation, and unfair trade practices under General Statutes §42-110b (a) of the Connecticut Unfair Trade Practices Act (CUTPA). The jury found in favor of the plaintiff on the breach of contract claim and awarded $18,750 in damages. The jury found in favor of the defendant on the misrepresentation and CUTPA claims and awarded the defendant $51,616.96 on its counterclaim for rental payments. The plaintiff filed a motion to set aside the verdict which was denied by the court. The plaintiff now appeals to this court from the judgment of the trial court.

The following facts are pertinent to this appeal. In December, 1984, the plaintiff, a radiologist, entered into negotiations with the defendant corporation concerning a lease for office space in a professional building being constructed by the defendant on Dale Road in Avon. The plaintiff intended to open an office that would provide both walk-in X-ray and medical treatment and diagnostic imaging and mammography services. During the course of the negotiations, Joseph Carter, president of the defendant corporation, promised on behalf of the defendant to erect a sign at the entrance to the professional building reading “Walk-in X-ray & Medical Treatment Center-Avon Diagnostic Imaging & Mammography Service.” The defendant further agreed in an addendum to the lease that it would erect a second sign in the building’s lobby and a third on the first floor of the building where the plaintiff’s office was to be located. The plaintiff signed the lease and remitted $15,000 to the defendant for improvements to be made to the premises.

The defendant submitted a sign application to the Avon planning and zoning commission for approval. The sign application made no reference to the wording “Avon Diagnostic Imaging & Mammography Service,” however, and it did not specify the treatment center as an “X-ray and Medical” treatment center. The commission rejected the defendant’s sign application. For the next several months, the defendant made further efforts to erect an alternative sign on the property a few feet in from Dale Road. These attempts also proved unsuccessful. At this time, the plaintiff had not yet moved into the office space.

The parties met in September, 1985, at which time the defendant’s attorney reassured the plaintiff that the defendant would be able to obtain approval from the town for a sign at the entrance to the building. In January, 1986, however, with no approval from the town regarding a sign on Dale Road, the plaintiff indicated that he wanted to cancel the deal and get his money back. In response, the defendant promised to “continue efforts to get a sign at the entrance” and to put a sign on the building itself that would be visible from the street. The plaintiff took possession on April 1,1986. The defendant then erected a sign on a retaining wall connected to the building. No sign was ever erected at the entrance to the building.

On appeal, the plaintiff claims that the trial court improperly (1) failed to charge the jury that it was to decide whether the defendant intended to erect the signs specified in the addendum to the lease agreement, (2) charged the jury that it must decide whether the defendant represented that the sign would be on the building or on a retaining wall, (3) failed to instruct the jury that an injury from an unfair trade practice does not have to be to a consumer but may be to a business person as well, and (4) abused its discretion in permitting the defendant to amend its counterclaim during the trial to include a claim for use and occupancy. We affirm the judgment.

In considering the plaintiff’s appeal, we note, as a threshold matter, that “ ‘[i]t is an established rule of appellate practice in this state that in order to obtain a full review of claims of error in civil jury cases, parties must raise those errors with the trial court and file a motion to set aside the verdict.’ ” Biagioni v. Aetna Life & Casualty Co., 16 Conn. App. 690, 691, 549 A.2d 279 (1988), quoting Kolich v. Shugrue, 198 Conn. 322, 325, 502 A.2d 918 (1986). The purpose of this rule is “to provide an opportunity for the trial court to pass upon claims of error which may become the subject of an appeal.” Pietrorazio v. Santopietro, 185 Conn. 510, 514, 441 A.2d 163 (1981); Jacobs v. Thomas, 26 Conn. App. 305, 311, 600 A.2d 1378 (1991), cert, denied, 221 Conn. 914, 603 A.2d 404 (1992). “In order to preserve full appellate review of a jury charge assigned as error, an appellant must not only move to set aside the verdict; Small v. South Norwalk Savings Bank, 205 Conn. 751, 758, 535 A.2d 1292 (1988); but must also set forth, either in the motion itself, in supporting briefs, or in oral argument at a hearing held on the motion, each claim of error with sufficient specificity to enable the trial court to consider the claimed errors. Voight v. Sel-man, 14 Conn. App. 198, 200, 540 A.2d 104 (1988); see also Pietrorazio v. Santopietro, [supra,] 514-15; Moz-zer v. Bush, 11 Conn. App. 434, 437, 527 A.2d 727 (1987); Shenefield v. Greenwich Hospital Assn., 10 Conn. App. 239, 243 n.3, 522 A.2d 829 (1987).” Cuartas v. Greenwich, 14 Conn. App. 370, 374-75, 540 A.2d 1071 (1988). Where a claimed error on appeal was not specifically addressed in any briefs or argument in support of a motion to set aside the verdict, appellate review of that claim is limited to plain error review. Practice Book § 4185; Cuartas v. Greenwich, supra.

In this case, the plaintiff moved to set aside the verdict but did not address in that motion any of the claims presently before us on appeal. The plaintiffs failure to raise these issues at the time of the postjudgment motion “ ‘causes our review to be limited to that of plain error.’ ” Mozzer v. Bush, supra, 438, quoting Shenefield v. Greenwich Hospital Assn., supra, 242-43 n.3. “Such review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985); State v. Jeffrey, 220 Conn. 698, 710-11, 601 A.2d 993 (1991). We consider the plaintiffs claims in the light of this “rarefied standard of review.” Small v. South Norwalk Savings Bank, supra, 759.

The plaintiffs first two claims concern the trial court’s charge to the jury on the issues of fraud and misrepresentation. The plaintiff first claims that the trial court incorrectly failed to charge the jury that “it was to decide whether the defendant intended to erect the specific signs he said he would erect for plaintiff pursuant to the lease addendum.” The plaintiff maintains that the defendant fraudulently misrepresented his intent in order to induce the plaintiff to sign the lease. The trial court instructed the jury to decide whether the defendant knew when he entered into the agreement that the town of Avon would not permit him to erect a sign either on the street or a few feet inside the driveway.

The plaintiff also claims that the court improperly charged the jury that “it was to decide whether the defendant represented that the sign it would erect would be on the building or on the retaining wall.” The plaintiff maintains that the trial court should have further instructed the jury to determine whether the defendant intended to erect a sign large enough to be seen from the street. The plaintiff maintains that the defendant fraudulently represented that the sign would be visible from the street in order to induce the plaintiff to move into the premises and begin paying rent.

We have reviewed the transcripts and conclude that the trial court properly instructed the jury on fraud and misrepresentation. The instructions were detailed, sufficient and correctly stated the law. The plaintiff offers no persuasive authority to demonstrate that the jury charges on these issues were contrary to the law. Costanzo v. Hamden, 18 Conn. App. 254, 264, 557 A.2d 1279 (1989). The trial court’s failure to instruct the jury exactly as the plaintiff requested did not, in this case, rise to “any manifest injustice amounting to plain error under all the circumstances.” Valley v. Fazzina, 187 Conn. 423, 428, 446 A.2d 1068 (1982).

The plaintiff next claims that the trial court improperly failed to instruct the jury that an injury arising from an unfair trade practice under CUTPA need not be to a consumer but may be to a business person as well. This claim lacks merit. The trial court’s jury charge on the plaintiff’s CUTPA claim included all of the necessary elements of proof under General Statutes § 42-110b (a). The court’s failure to include in its charge the phrase “business person” as requested by the plaintiff does not rise to the level of plain error such as to call into question “the fairness and integrity of and public confidence in the judicial proceedings.” State v. Hinckley, supra.

Finally, the plaintiff claims that the trial court abused its discretion in allowing the defendant to amend its counterclaim during the trial to include a claim for use and occupancy. The plaintiff argues that the amendment to the counterclaim injected a new issue into the trial, that is, the determination of the fair rental value of the premises. See General Statutes § 47a-3c. A trial court has broad discretion to allow an amendment to pleadings before, during, or even after trial in order to conform to the proof. Hanson Development Co. v. East Great Plains Shopping Center, Inc., 195 Conn. 60, 67, 485 A.2d 1296 (1985); Saphir v. Neustadt, 177 Conn. 191, 206, 413 A.2d 843 (1979). “ ‘The trial court is in the best position to assess the burden which an amendment would impose on the opposing party in light of the facts of the particular case.’ ” Wallingford v. Glen Valley Associates, Inc., 190 Conn. 158, 161, 459 A.2d 525 (1983), quoting Tedesco v. Julius C. Pagano, Inc., 182 Conn. 339, 341-42, 438 A.2d 95 (1980). We will not overturn the trial court’s ruling unless an abuse of discretion is clearly evident. Hanson Development Co. v. East Great Plains Shopping Center, Inc., supra. We find no abuse of discretion in the trial court’s action, and, thus, conclude that the court properly allowed the defendant to amend its counterclaim.

The judgment is affirmed.

In this opinion the other judges concurred.

       In his motion to set aside the verdict, the plaintiff moved (1) to increase the amount of the award of damages for breach of contract, (2) to set aside the verdict on the CUTPA claim as contrary to the evidence, and (3) to remit damages awarded to the defendant on its counterclaim for rental payments under the lease on the grounds that the amount was excessive and contrary to the evidence.


source: Caselaw Access Project

author: Norcott, J.

license: Public Domain

text:
    State of Connecticut v. James Arthur Barnes
    (10379)
    Dupont, C. J., Norcott and Heiman, Js.
    Argued April 1
    decision released June 9, 1992

      Valerie J. Quinn, assistant public defender, with whom, on the brief, was Michael K. Courtney, assistant public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were Walter D. Flanagan, state’s attorney, and David Holzbach, assistant state’s attorney, for the appellee (state).
   Norcott, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of two counts of sale of narcotics by a person who is not drug-dependent in violation of General Statutes § 2 la-278 (b). He claims that the trial court improperly (1) excluded the results of his polygraph examination, (2) admitted two state’s exhibits that were insufficiently identified at trial, (3) denied his motion to strike the testimony of undercover police detective John Merullo, and (4) failed to find, pursuant to General Statutes § 21a-278 (b) (2), that his mental capacity was significantly impaired at the time of the crimes. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. In October, 1989, Detectives Mark Pompano and John Merullo were assigned to the northwest office of the statewide narcotics task force in the capacity of undercover officers. Their assignment was to attempt to buy narcotics in a neighborhood with a high incidence of drug related activities.

During the late afternoon of October 4, 1989, Pompano and Merullo drove through the Beaver and Elm Streets area of Danbury, where they spotted the defendant, whom Merullo had known for about twenty years. Merullo gave Pompano $100 for the purpose of buying drugs while operating undercover. While Merullo parked their vehicle and watched from a surveillance location, Pompano approached some individuals on a sidewalk and engaged them in conversation. Shortly thereafter, the defendant joined the group. The group members referred to him as “Flat Top.” Merullo knew that Flat Top was a nickname of the defendant. When the group broke apart, the defendant asked Pompano if he wanted to buy some cocaine. Pompano said he wanted “a quarter gram.” The defendant then retrieved a white, pyramid-type paper fold from his jacket pocket, and Pompano handed him $20 of the money Merullo had provided. Merullo watched the entire transaction from his surveillance post.

Thereafter, the detectives met at a prearranged location and conducted a field test on the contents of the packet. The test showed the substance in the packet to be cocaine. The packet was thereafter taken to the department of health services toxicology laboratory for further tests. At trial, chief state toxicologist Joel Mil-zoff testified that the contents of the packet tested positive for cocaine.

During a second undercover operation on October 25, 1989, Merullo returned to the same area in Danbury and saw the defendant standing next to a garage. Shortly thereafter, Pompano arrived and engaged in a transaction with the defendant, resulting in the sale to Pompano of one quarter of a gram of cocaine for $25. The narcotic substance was also packaged in a white, pyramid-type paper fold. Merullo also watched this transaction from a distance of about fifty feet.

The defendant’s first claim requires little discussion. He argues that the trial court improperly denied his pretrial motion to admit into evidence the results of his polygraph examination. We disagree.

We first note that the trial court conducted a full hearing on the defendant’s motion and heard testimony from his expert witness, Victor Kaufman. The court also reviewed the relevant Connecticut law on polygraph evidence before denying the defendant’s motion. The defendant now urges us to abandon the well established principle articulated by our Supreme Court that polygraph evidence is inadmissible. See State v. Plourde, 208 Conn. 455, 471, 545 A.2d 1071 (1988), cert. denied, 488 U.S. 1034, 109 S. Ct. 847, 102 L. Ed. 2d 979 (1989); State v. Miller, 202 Conn. 463, 484, 522 A.2d 249 (1987). Specifically, the Supreme Court has held that, “[d]ue to their questionable accuracy, the results of a polygraph examination are not admissible either as positive proof or for the purposes of impeachment.” State v. Plourde, supra. Our review of the record discloses no special or distinguishing circumstances, as argued by the defendant, that would lead us to consider a rule different from that enunciated by our highest court. Accordingly, this claim must fail.

Next, the defendant argues that the trial court improperly admitted into evidence certain state’s exhibits that were insufficiently identified.

The following facts are germane to this issue. It is uncontested that during the trial, when Pompano and Merullo testified about state’s exhibits B1 and Cl, which represented the packets of cocaine sold to Pompano on October 4 and October 25, 1989, respectively, they initially misidentified the exhibits. After their initial testimony, it was clear that there was confusion with respect to the correlation between exhibits and the dates on which they were seized by the police. Upon being recalled to testify, however, Pompano and Merullo clarified their earlier testimony to the court’s satisfaction. The court then denied the defendant’s motion to exclude the evidence at issue.

The essence of the defendant’s argument here is that the testimony of the state’s witnesses supporting the identification and chain of custody of the exhibits was inherently unreliable and, therefore, the state failed to establish a sufficient basis for the admission of this evidence. This claim has no merit.

It is axiomatic that we afford a trial court’s rulings on the admissibility of evidence great deference. State v. Sharpe, 195 Conn. 651, 658-59, 491 A.2d 345 (1985). We will not disturb such rulings absent a showing of a clear abuse of the trial court’s discretion. State v. Moye, 214 Conn. 89, 96, 570 A.2d 209 (1990). Our review of the record leads us to conclude that the trial court did not abuse its discretion in finding that the state had sufficiently laid a proper foundation for the admission of the exhibits and that, in addition, the state had sufficiently established both their identification and chain of custody.

When recalled to the witness stand, Pompano and Merullo testified that their earlier misidentification of exhibits B1 and Cl was attributable to the fact that they had not noted the dates written on the different evidence tags of the two exhibits. After the prosecutor questioned the witnesses again, the trial court was satisfied that no fatal misidentification or problem with the chain of custody existed. *6Accordingly, the questions concerning the weight to be given the evidence and the truthfulness of the detectives who obtained it were properly submitted to the jury as finders of fact. We note that there is no claim here that the evidence was tampered with in any fashion or that the trial court improperly instructed the jury as to its duty regarding the consideration of evidence. The defendant’s claim boils down to a contention that an initial confusion or misidentification of certain evidence cannot later be cleared up and clarified by the same witnesses. We reject this argument under the circumstances of this case. Because we find no basis on which to conclude that the trial court abused its discretion with regard to the physical evidence at issue, we find nothing improper in the court’s actions. See State v. Pollitt, 205 Conn. 61, 92, 530 A.2d 155 (1987).

As a corollary to his challenge to the state’s exhibits, the defendant argues that because exhibits B1 and Cl should have been excluded, the court wrongfully denied his motion for judgment of acquittal, which he based on the insufficiency of the evidence. Because of our treatment of the claim concerning those exhibits, which comprised the crucial physical evidence presented against the defendant, we need not reach this issue.

The defendant next contends that the trial court was incorrect in ruling that Merullo’s field notes were not “statements” within the meaning of Practice Book § 749, and therefore were not subject to disclosure pursuant to Practice Book § 752.* ** He argues that the destruction of Merullo’s “statements” required the court to strike the detective’s entire testimony, and that the trial court wrongfully denied the motion to strike that testimony. Again, we disagree.

These additional facts are necessary to the resolution of this claim. Merullo prepared two written reports as a result of his investigation of the October 4 and October 25, 1989 undercover operations. The state duly provided copies of these reports to the defendant. During a voir dire of Merullo, however, he testified that he also had dictated into a tape recorder the “time periods” of certain incidents during the investigation. These time periods indicated, for example, when the undercover officer making the buy arrived at a designated location, and when the buy actually occurred. He further testified on redirect examination before the jury that (1) the tapes assisted him in completing his written report, (2) the written reports accurately reiterated the time periods reflected on the tapes, and (3) the tapes had since been destroyed.

In response to this information, the defendant asked that Merullo’s entire testimony be stricken as a sanction for destroying the tapes. The trial court refused, finding that there was “no statement on the tapes” and that the recordation of time periods was tantamount to the making of “scrap notes.” We agree with the trial court.

“In making the determination of whether the field notes constituted a statement, ‘the trial court exercises broad discretion . . . and its findings will be disturbed only if they are clearly erroneous. (Citations omitted.)’ State v. Black, 23 Conn. App. 241, 244, 579 A.2d 1107 (1990) .” State v. Torres, 24 Conn. App. 316, 329, 588 A.2d 232, cert. denied, 218 Conn. 911, 591 A.2d 813 (1991) . A police officer’s field notes may be subject to disclosure provided they meet the qualifications of the alternate definitions found in the two subsections of Practice Book § 749. State v. Belle, 215 Conn. 257, 266, 576 A.2d 139 (1990); State v. Monteeth, 208 Conn. 202, 216, 544 A.2d 1199 (1988). Here, the defendant claims that the tape recorded time periods were statements within the meaning of one of the alternate definitions of that term. Nowhere in the presentation of this appeal, however, is there evidence that these recorded times were substantially verbatim accounts of the incidents under investigation. Indeed, the time periods were included in the written verbatim accounts that were in fact turned over to the defendant. The record clearly does not support the claim that these taped time periods were anything more than undiscoverable field notes. Finally, we note that the defendant makes no claim that these recordings contained any exculpatory material relevant to the issue of misidentification of the physical evidence. We therefore conclude that there is nothing in the record to suggest that the trial court’s resolution of this entire question was clearly erroneous.

The defendant’s final argument is that the trial court incorrectly found that for the purposes of General Statutes § 21a-278 (b) (2), his mental capacity was not significantly impaired at the time of the crimes.

The defendant was convicted of two counts of violating General Statutes § 21a-278. Pursuant to that statute, the penalty for each violation is that “for a first offense [the person] shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense [the person] shall be imprisoned not less than ten years nor more than twenty five years. ...” General Statutes § 21a-278 (b). The statute further provides: “The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years or, (2) such person’s mental capacity was significantly impaired but not so impaired as to constitute a defense to prosecution.” General Statutes § 21a-278 (b). Pursuant to General Statutes § 21a-269, the burden of proving an exemption from liability, such as mental impairment, rests with the defendant. State v. Hart, 221 Conn. 595, 608, 605 A.2d 1366 (1992).

On May 29, 1991, prior to sentencing, the trial court permitted the defendant to present evidence of mental impairment pursuant to § 21a-278 (b) (2). The defendant proceeded to present as an expert witness Lloyd Dawe, a psychiatrist who testified, in essence, that during the time of the offenses the defendant suffered from paranoia. Dawe also testified that the defendant was not a “severe paranoic,” and that paranoia is “the commonest of all psychiatric conditions [and] is present in virtually everyone.” After acknowledging that he had not examined the defendant until more than a year after the commission of the offenses, Dawe further qualified his professional assessment by stating that the defendant understood the concepts of right and wrong, and that if he had been selling narcotics, he would certainly have been aware of what he was doing. The state cross-examined Dawe but presented no evidence of its own.

Given this evidence, the trial court rejected the defendant’s contention that his mental capacity was significantly impaired at the time of the offenses and that, as a result, he should not receive the mandatory minimum sentence. The court specifically found that there was insufficient evidence to warrant a finding that the defendant’s mental capacity was significantly impaired at the time of the offenses.

The defendant now argues that in enacting General Statutes § 21a-278 (b), the legislature clearly intended to exempt certain classes of people from the mandatory minimum sentence at issue here. He urges us to find that it was clearly erroneous for the trial court to refuse to find that his mental capacity was impaired. The defendant further suggests that once he produces evidence of impaired mental capacity, the burden shifts to the state to disprove it beyond a reasonable doubt.

At the outset, we note that it is well established that there is no need to search for legislative intent when a statute’s language is clear and unambiguous. State v. Guckian, 27 Conn. App. 225, 241, 605 A.2d 874 (1992) (en banc). What the defendant overlooks is that suspension of the mandatory minimum sentence when a defendant meets the requirements of subdivisions (1) or (2) of General Statutes § 21a-278 (b) is purely permissive, and that this aspect of the statutory language is clear and unambiguous on its face. The statute clearly states that the court “may” suspend execution of the sentence if it finds, pursuant to subdivision (2), significant impairment of the defendant’s mental capacity. Moreover, subdivisions (1) and (2) apply to the sentencing phase, where guarantees to a convicted defendant are few and well defined. One such guarantee certainly is not that a trial court be mandated to accept and give credence to any evidence offered by a defendant under this statute.

In this case, after hearing testimony from the defendant’s psychiatrist, the court found that there was insufficient evidence from which it could make a factual finding of significantly impaired mental capacity. See State v. Hart, supra, 608-609. “Under familiar principles of appellate review, a trial court’s factual finding will not be reversed or modified unless it is clearly erroneous in view of the evidence and pleadings in the whole record. ...” (Citations omitted; internal quotation marks omitted.) Capital Consulting Group, Ltd. v. Rochman, 218 Conn. 396, 401, 589 A.2d 877 (1991), quoting DiBella v. Widlitz, 207 Conn. 194, 198, 541 A.2d 91 (1988). “ ‘The issue is not whether the trial court could have reached a different conclusion but whether the conclusion which it did reach is clearly erroneous.’ ” Capital Consulting Group, Ltd. v. Rochman, supra. Having considered the psychiatrist’s testimony, we cannot find that it was clearly erroneous for the court to determine that there was insufficient evidence to make a factual finding regarding significant mental impairment.

Because we cannot disturb this finding, there is no need to reach the second part of the defendant’s argument on this issue, which involves whether and in what manner the state must negate evidence that the defendant suffers from significant mental impairment at the time of the crime.

The judgment is affirmed.

In this opinion the other judges concurred.

       The substance sold to Pompano also field tested positive for cocaine. At trial, Milzoff testified that the substance from both transactions was cocaine.

       At the pretrial hearing, Kaufman testified that the defendant had truthfully responded to certain questions concerning his involvement in the sale of cocaine. Kaufman testified that the defendant had told the truth in responding that he had not sold cocaine on the dates in question or at any other time.

       It is evident from a review of the record that a mix-up in the identification of the exhibits B1 and Cl occurred as a result of the prosecutor’s confused presentation of the evidence rather than any fatal contradiction in the police testimony.

       Besides Pompano and Merullo, the state presented as witnesses Sergeants Joseph Foehr and William McGuire of the state narcotics task force, chief toxicologist Milzoff, and Inspector Robert Bloomquist of the task force with respect to the identification and chain of custody of the evidence.

       Practice Book § 749 provides: “The term ‘statement’ as used in Sec. 748 means: (1) A written statement made by a person and signed or otherwise adopted or approved by him; or (2) A stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by a person and recorded contemporaneously with the making of such oral statement.”

       Practice Book § 752 provides: “After a witness called by the state has testified on direct examination at trial, the judicial authority shall, on motion of the defendant, order the state to produce any statement of the witness in possession of the state or its agents, including state and local law enforcement officers, which statement relates to the subject matter about which the witness has testified.”

       We note that even if we were to consider the time periods to be statements under the definition in the rules of practice, we could not conclude that the destruction of the tape recording without bad faith was harmful to the defendant in any way.

       General Statutes § 21a-269 provides: “In any complaint, information or indictment, and in any action or proceeding brought for the enforcement of any provision of this part, it shall not be necessary to negative any exception, excuse, proviso or exception contained in said section, and the burden of proof of any such exception, excuse, proviso or exemption shall be upon the defendant.”


author: Freedman, J.

text:
    Katharine McHugh v. Thomas M. McHugh
    (10609)
    Daly, Landau and Freedman, Js.
    Argued April 1
    decision released June 9, 1992

      Suzanne E. Caron, for the appellant (plaintiff).

      James E. Sulick, with whom, on the brief, was James H. Howard, for the appellee (defendant).
   Freedman, J.

The plaintiff appeals from the judgment granting her motion to modify the defendant’s child support obligation. The plaintiff claims that the trial court improperly (1) deviated from the child support guidelines, and (2) failed to conduct a full and fair hearing. We reverse the judgment of the trial court.

The marriage of the parties was dissolved on September 21, 1981, at which time there were two minor children issue of the marriage. The terms of the decree were based on a written agreement of the parties dated September 21, 1981, which the court found to be fair and equitable. Although the agreement was not incorporated by reference in the decree, the operative provisions are contained in the judgment file. The decree provided in relevant part that the parties were to have joint custody of the minor children and that the primary residence of the minor children was to be with the plaintiff. In addition, the decree provided for the defendant to pay unallocated alimony and support to the plaintiff, the amount of which declined as the years went by and declined further in the event of the remarriage of the plaintiff or the emancipation of the children.

In May, 1991, the plaintiff filed a motion for modification in which she alleged a substantial change in the circumstances of the parties. At that time, one child had reached majority, the remaining child was thirteen years old and the plaintiff had remarried. There had been no intervening modifications of the decree and, in accordance with its terms, the defendant was then paying to the plaintiff the sum of $333.33 per month, approximately $77 per week, which was still labelled as unallocated alimony and support.

When the parties appeared before the court on the plaintiffs motion for modification, the trial court had before it the original decree, the financial affidavits filed at the time the marriage was dissolved and the parties’ current financial affidavits. The trial court commenced the proceeding by asking the plaintiff’s attorney to state the substantial change of circumstances. Thereafter, a dialogue ensued between the court and the plaintiff’s attorney regarding the alleged change in circumstances, the amount the plaintiff claimed to be due under the child support guidelines, the past and current income of the plaintiff and the age of the minor child. The trial court then invited comments from the defendant’s attorney. The dialogue between the trial court and the defendant’s attorney focused on the defendant’s payment for the oldest child’s college education, the defendant’s expenses related to visitation with the children, the tax benefits of an unallocated order, the parties’ current marital status, and other matters relating to the original decree and the parties’ current status.

After this colloquy between the court and the defendant’s attorney, the trial court then questioned the plaintiff, who was not under oath, about the defendant’s relationship with the minor child, the plaintiff’s current living situation and her need for additional child support. Thereafter, there was some further brief dialogue between the attorneys and the court at which point the trial court stated “Okay, I’ve heard enough.” The defendant’s attorney then made a comment regarding the tax exemption for the child and the trial court stated “I’ve heard enough. I’ve heard enough. $110 a week.” The defendant’s attorney then inquired if the order was in contemplation of the guidelines,* ** and the court responded by stating: “That is taking every factor that was mentioned to me today into consideration.”

The plaintiff first claims that the trial court improperly deviated from the child support guidelines. We agree. General Statutes § 46b-215b provides that the child support guidelines shall be considered in all determinations of child support amounts. 6It further provides that “[i]n all such determinations there shall be a rebut-table presumption that the amount of such awards which resulted from the application of such guidelines is the amount of support to be ordered.” This presumption, however, may be rebutted by “[a] specific finding on the record that the application of the guidelines would be inequitable or inappropriate in a particular case” as determined by the application of the deviation criteria established in the guidelines.

We have previously held that “unless there is a specific finding on the record that would allow the presumption to be rebutted, child support awarded must be in the amount provided by the guidelines.” Savage v. Savage, 25 Conn. App. 693, 698, 596 A.2d 23 (1991). Here the trial court made no such finding.

The requirement of a specific finding on the record that the application of the guidelines would be inequitable or inappropriate when the amount awarded deviates from the amount resulting from the application of the guidelines, as determined by the application of the deviation criteria established in the guidelines, becomes even more compelling in light of the 1990 amendment to General Statutes § 46b-86 (a). The amendment added as an additional ground for modification a showing that the order sought to be modified “substantially deviates from the child support guidelines . . . unless there was a specific finding on the record that the application of the guidelines would be inequitable or inappropriate. ” (Emphasis added.) This amendment applies retroactively to all previous orders of child support including those entered before there were any guidelines. Turner v. Turner, 219 Conn. 703, 718, 595 A.2d 297 (1991). It follows, therefore, that once the court enters an order of child support that substantially deviates from the guidelines, and makes a specific finding that the application of the amount contained in the guidelines would be inequitable or inappropriate, as determined by the application of the deviation criteria established in the guidelines, that particular order is no longer modifiable solely on the ground that it substantially deviates from the guidelines. By the same token, in the absence of such a specific finding, the order is continually subject to modification on the ground of a substantial deviation from the guidelines. Such specific finding, therefore, has very real and meaningful consequences and must be made by the court anytime the court enters a child support award that deviates from the child support guidelines.

We conclude, therefore, that the trial court improperly deviated from the child support guidelines in the absence of a specific finding on the record that application of the guidelines would be inequitable or inappropriate according to the deviation criteria established in the guidelines.

The judgment is reversed and the case is remanded to the trial court for a new hearing on the motion to modify.

In this opinion the other judges concurred.

       Because we agree with the plaintiff on the first issue, we need not address the second issue. Our declining to address the second issue should not, however, be taken as expressing an opinion regarding the propriety of the manner in which the proceeding was conducted.

       General Statutes § 46b-86 (a) provides in pertinent part: “Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support . . . may at any time thereafter be . . . modified by said court upon a showing of a substantial change in the circumstances of either party or upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to section 46b-215a unless there was a specific finding on the record that the application of the guidelines would be inequitable or inappropriate. . . .”

       The dialogue between the court and the plaintiff was as follows: “The Court: Mrs. McHugh, how does he get along with his thirteen-year-old daughter?
      “Plaintiff: I am not really able to answer that.
      “The Court: I can’t hear you.
      “Plaintiff: I am not able to answer that.
      “The Court: You’re not able to? Why?
      “Plaintiff: Because I don’t do—from my point of view—
      “Ms. Caron: What is your impression of how they get along? I know you can’t say specifically how they get along. What is your impression?
      “Plaintiff: I would say, since she’s a teenager, it is a normal relationship. She—
      “The Court: Does he send her birthday presents?
      “Plaintiff: Yes, he does.
      “The Court: Does he talk to her on the telephone?
      “Plaintiff: Yes, he does.
      “The Court: Does he visit her? Or she visit him?

        “Plaintiff: She visits him.
      “The Court: Does he get her gifts for Christmas?
      “Plaintiff: Yes, he does.
      “The Court: Has he been generous?
      “Plaintiff: No.
      “The Court: And you feel you really need all of this additional money?
      “Plaintiff: Yes, I do.
      “The Court: Do you have a new family?
      “Plaintiff: I have a new husband, and he has a daughter.
      “The Court: And how old is your step-daughter?
      “Plaintiff: She is fifteen.
      “The Court: Does she live there?
      “Plaintiff: No, not any more.”

       At the commencement of the hearing, the attorney for the plaintiff stated to the court that a strict application of the child support guidelines would call for an order of child support in the amount of $287 per week. The defendant did not dispute this calculation and the court did not pursue the issue of the calculation any further.

       General Statutes § 46b-215b (a) provides: “The child support guidelines promulgated pursuant to section 8 of public act 85-548 and any updated guidelines issued pursuant to section 46b-215a shall be considered in all determinations of child support amounts within the state. In all such determinations there shall be a rebuttable presumption that the amount of such awards which resulted from the application of such guidelines is the amount of support to be ordered. A specific finding on the record that the application of the guidelines would be inequitable or inappropriate in a particular case, as determined under criteria established by the commission under section 46b-215a, shall be sufficient to rebut the presumption in such case.”

       Public Acts 1991, No. 91-76, § 1, effective May 9, 1991, amended General Statutes § 46b-86 (a) to provide that “[tjhere shall be a rebuttable presumption that any deviation of less than fifteen per cent from the child support guidelines is not substantial and any deviation of fifteen per cent or more from the guidelines is substantial. . . .”


text:
    Patricia B. Cross v. Paul Hudon, Conservator (Estate of Helen A. Benny), et al.
    (10317)
    Norcott, Landau and Freedman, Js.

      Argued April 3
    decision released June 9, 1992

      Vincent E. Roche, with whom, on the brief, was Joan Keating-McKeon, for the appellant (plaintiff).

      Vincent F. Sabatini, with whom, on the brief, was Paul R. Doyle, for the appellee (defendant Richard E. Pikor).

      Paul Zanoni, pro se, the appellee (defendant).

      Rosalie Benny Zanoni, pro se, the appellee (defendant).
   Norcott, J.

The plaintiff appeals from the trial court’s judgment dismissing this action for lack of subject matter jurisdiction. The plaintiff claims that the trial court (1) failed to conduct an evidentiary hearing to determine if it had subject matter jurisdiction, and (2) improperly dismissed the action upon its finding that a guardian may not institute a legal action against her ward. Because we conclude that, under the facts of this case, the trial court should have conducted an eviden-tiary hearing, we need not reach the plaintiffs second issue. Accordingly, we reverse the trial court’s judgment.

The following facts are pertinent to this appeal. Between October, 1980, and December, 1988, the plaintiff expended about $157,000 for the care of her mother, Helen A. Benny, who resided from March, 1982, until she died in August, 1989, in the St. Patrick’s Manor nursing home in Framingham, Massachusetts. In June, 1988, the plaintiff was appointed temporary guardian of her mother by the Middlesex County Probate and Family Court in Massachusetts. Prior to this appointment, the plaintiff had expended about $136,000 for her mother’s care and benefit. In September, 1988, the Massachusetts court named the plaintiff permanent guardian of her mother.

In February, 1989, the Newington Probate Court appointed Paul Hudon conservator of the estate of Helen A. Benny. The estate contained two parcels of real property, one in Old Lyme, and the other in Wethersfield, both of which were devised to another of Helen A. Benny’s daughters, Rosalie Benny Zanoni. In May, 1989, the plaintiff brought suit in Superior Court against Hudon, seeking reimbursement for the funds that were expended for Helen A. Benny’s care and benefit. In July, 1989, the trial court ordered that Rosalie Benny Zanoni and her husband, Paul Zanoni, be made party defendants because of their interest in the properties.

In September, 1989, Rosalie Benny Zanoni was appointed executrix of her late mother’s estate by the Newington Probate Court. Shortly thereafter, in January, 1990, Rosalie Benny Zanoni was substituted for Hudon as the defendant in this action. In December, 1990, Paul and Rosalie Benny Zanoni filed a motion with the trial court to dismiss for lack of subject matter jurisdiction. The court thereafter granted the motion, and in January, 1991, the plaintiff moved to open the judgment. In June, 1991, the court denied the motion to open. This appeal followed.

The plaintiff first claims that the trial court improperly failed to conduct an evidentiary hearing to determine if it had subject matter jurisdiction. We agree.

We begin with a brief statement of our well settled principles regarding subject matter jurisdiction. Jurisdiction over the subject matter is the court’s power to hear and decide cases of the general class to which the proceedings at issue belong. Lauer v. Zoning Commission, 220 Conn. 455, 460, 600 A.2d 310 (1991); Koskoff v. Planning & Zoning Commission, 27 Conn. App. 443, 446, 607 A.2d 1146 (1992). Once the question of lack of jurisdiction of a court is raised, “[it] must be disposed of no matter in what form it is presented.” Carten v. Carten, 153 Conn. 603, 610, 219 A.2d 711 (1966). Whenever a court finds that it has no jurisdiction, it must dismiss the case, without regard to previous rulings. Pet v. Department of Health Services, 207 Conn. 346, 351, 542 A.2d 672 (1988).

We are mindful that “ ‘[w]here a decision as to whether a court has subject matter jurisdiction is required, every presumption favoring jurisdiction should be indulged.’ ” Killingly v. Connecticut Siting Council, 220 Conn. 516, 522, 600 A.2d 752 (1991); Demar v. Open Space & Conservation Commission, 211 Conn. 416, 425, 559 A.2d 1103 (1989). “A trial court should make every effort to adjudicate the substantive controversy before it, and, where practicable, should decide a procedural issue so as not to preclude hearing the merits of an appeal.” Killingly v. Connecticut Siting Council, supra.

In determining whether a court lacks subject matter jurisdiction, the inquiry usually does not extend to the merits of the case. Isaac v. Mount Sinai Hospital, 210 Conn. 721, 732, 557 A.2d 116 (1989). Nevertheless, the court must determine whether it has the power to hear the “ ‘general class [of cases] to which the proceedings in question belong.’ ” Lampasona v. Jacobs, 209 Conn. 724, 728, 553 A.2d 175, cert. denied, 492 U.S. 919, 109 S. Ct. 3244, 106 L. Ed. 2d 590 (1989), quoting Shea v. First Federal Savings & Loan Assn, of New Haven, 184 Conn. 285,288, 439 A.2d 997 (1981). Because the elements of subject matter jurisdiction are “ ‘dependent upon both law and fact’ Kinney v. State, 213 Conn. 54, 59, 566 A.2d 670 (1989), cert. denied, U.S. , 111 S. Ct. 251, 112 L. Ed. 2d 209 (1990); Castro v. Viera, 207 Conn. 420, 433, 541 A.2d 1216 (1988); in some cases it may be necessary to examine the facts of the case to determine if it is within a general class the court has power to hear. See Castro v. Viera, supra, 433-35 (discussing subject matter jurisdiction of an agency); Young v. Chase, 18 Conn. App. 85, 94-95, 557 A.2d 134 (1989); 1 E. Stephenson, Connecticut Civil Procedure (2d Ed. 1982 Sup.) § 103. Further, “ ‘[w]hen issues of fact are necessary to the determination of a court’s jurisdiction, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses.’ ” Lampasona v. Jacobs, 7 Conn. App. 639, 642-43, 509 A.2d 1089 (1986), quoting Standard Tallow Corporation v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983).

Here, the defendants’ motion to dismiss alleged, in essence, that the Superior Court lacked subject matter jurisdiction because the plaintiff impermissibly brought this action in her capacity as a guardian against her own ward. Further, the defendants’ motion alleged that subject matter jurisdiction does not exist in the Superior Court because such disputes between fiduciaries are properly heard only in the Probate Courts. Because jurisdiction in this case hinges upon a factual determination regarding the plaintiff’s status when she instituted this action, we conclude that the trial court improperly failed to conduct an evidentiary hearing to determine the pertinent facts necessary to ascertain whether jurisdiction existed.

The judgment is reversed, and the case is remanded for an evidentiary hearing to ascertain the plaintiff’s status at the time she commenced this action so that the trial court can properly determine whether it has subject matter jurisdiction.

In this opinion the other judges concurred.

       In March, 1991, the Newington Probate Court removed Rosalie Benny Zanoni from her fiduciary position. In June, 1991, the new administrator of the estate, Richard Pikor, was substituted for Rosalie Benny Zanoni as a defendant in this action.


text:
    Clarette Lemonious v. J. William Burns, Commissioner of Transportation et al.
    (10763)
    Norcott, Lavery and Landau, Js.

      Argued March 26
    decision released June 9, 1992

      Louis B. Blumenfeld, with whom was Lorinda S. Coon, for the appellant (named defendant).

      Allisan Lee Adams, for the appellee (plaintiff).
   Norcott, J.

The defendant J. William Burns, commissioner of transportation (commissioner), appeals from the judgment of the trial court, rendered after a jury trial, awarding $85,000 in damages to the plaintiff for injuries she sustained as a result of the commissioner’s violation of General Statutes § lSa-144,

one of this state’s highway defect statutes. The commissioner claims (1) that the jury could not have reasonably and logically inferred from the evidence presented at trial that the road where the plaintiff fell was not closed pursuant to General Statutes § 13a-145, and (2) that the trial court’s jury instruction was inadequate. We affirm the trial court’s judgment.

After the verdict, the commissioner moved to set it aside as contrary to the evidence. The court then granted the motion and rendered judgment for the commissioner. The plaintiff appealed to this court. We subsequently reversed the trial court’s decision and remanded the case for further consideration. See Lemonious v. Burns, 23 Conn. App. 735, 583 A.2d 1328 (1991). The trial court then denied the commissioner’s motion to set aside the verdict and rendered judgment for the plaintiff on the jury’s verdict. This appeal followed.

Because the facts of this case are fully set forth in our earlier decision, a brief synopsis here will suffice. On August 20, 1984, the plaintiff was on her way to a bus stop when she fell in a hole located in a public highway, where construction work was being performed under the aegis of the commissioner. The plaintiff suffered serious injuries and brought suit against the commissioner, alleging that her injuries resulted from his breach of the statutory duty under § 13a-144 with regard to maintenance of public highways. Testimony at trial disclosed that the construction foreman’s daily report should have indicated whether special safety precautions were taken to prevent such incidents. The contractor’s records, however, did not indicate whether such precautions were taken just prior to the plaintiff’s fall.

The commissioner first claims that the jury could not have reasonably and logically reached any other con-elusion but that the road where the plaintiff fell was legally closed, pursuant to General Statutes § 13a-145, at the time of the incident in question. We disagree.

The following additional facts are necessary to the resolution of this claim. General Statutes § 13a-145 provides in part that a person using any state highway that has been designated as closed pursuant to General Statutes § 13a-115 “shall do so at his own risk except with respect to any injury or loss not traceable to a defect caused in the process of construction, reconstruction or repair.” General Statutes § 13a-115 (a) provides in part that the commissioner may close a section of a state highway “by posting notices at each end of such section of highway . . . .”

The commissioner argues that the testimony at trial established conclusively that such notices had been posted prior to the plaintiff’s fall. Both Neal Robison, owner of the construction company, and Stephen Zen-tara, the state inspector for the project, testified that signs had been placed at each end of the construction area prior to the plaintiff’s fall and that they were in place at the time she fell. The plaintiff testified, however, that she did not pass any such sign en route to the bus stop. A witness to the incident, Lillian Harrison, also testified that she did not see signs posted, although she acknowledged that they could have been in place.

It is well established that the credibility of witnesses and the weight to be accorded their testimony is a matter wholly within the province of the jury. State v. Pin-nock, 220 Conn. 765, 778, 601 A.2d 521 (1992). Here, the jury chose to believe the plaintiff and Harrison as opposed to the commissioner’s witnesses. The plaintiff and Harrison were on the scene at the time of the incident; the commissioner’s witnesses were not. Further, the commissioner presented no documentary or other evidence in support of his claim that the signs were posted.

Although the commissioner argues forcefully that the testimony of the plaintiff’s witnesses did not contradict that of Robison and Zentara, this is unavailing because the jury may nevertheless have found the commissioner’s witnesses to be lacking in credibility. Further, the commissioner argues that during Robison’s testimony, a photograph of a sign was admitted into evidence, establishing that notice was posted at the time of the plaintiff’s fall. The commissioner relies on the trial court’s brief remark to the jury in admitting the photograph that “it’s a photo of a sign at the site.”

A review of the record, however, clearly shows that at no time did Robison testify that the photograph in question depicted a sign that was posted at the site the day the plaintiff fell. The record also shows that the photograph was admitted only to show the type of sign that would have been posted there, and that the court never changed that ruling. Contrary to the commis-

sioner’s assertions on appeal, the record of his closing argument to the jury shows that this was his understanding as well.* * Whether the sign was posted is a matter of fact involving a question of truth to be decided on conflicting evidence. See Sweet v. Sweet, 190 Conn. 657, 663, 462 A.2d 1031 (1983). Here, the jury apparently chose to believe the plaintiffs witnesses as opposed to those of the commissioner. Our review of the record leads us to conclude that the jury could have reasonably and logically inferred from the evidence presented that the road was not legally closed at the time the plaintiff fell.

The commissioner next claims the trial court failed to charge the jury adequately with respect to the road closure statutes, General Statutes §§ 13a-115 and 13a-145. Specifically, the commissioner claims that the court’s instruction was inadequate because it contained no explanation of the statutes and did not relate them to the evidence. We disagree.

A jury charge is to be considered from the standpoint of its effect on the jury in guiding it to a correct ver-diet. Ellice v. IN A Life Ins. Co. of New York, 208 Conn. 218, 226, 544 A.2d 623 (1988). The charge is to be read as a whole, with the instructions claimed to be improper read in that context. Carfora v. Globe, Inc., 5 Conn. App. 526, 530, 500 A.2d 958 (1985), cert. denied, 198 Conn. 804, 503 A.2d 1186 (1986). A reviewing court does not critically dissect the charge to discover possible inaccuracies. Ellice v. INA Life Ins. Co. of New York, supra. The test to determine if a jury charge is proper is whether “ ‘it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Jury instructions need not be exhaustive, perfect or technically accurate, so long as they are correct in law, adapted to the issues and sufficient for the guidance of the jury.’ ” Kelley v. Bonney, 221 Conn. 549, 584, 606 A.2d 693 (1992), quoting Preston v. Keith, 217 Conn. 12, 17, 584 A.2d 439 (1991).

Our independent review of the entire jury instruction discloses that the court’s charge with respect to the road closure statutes was neither inadequate nor so flawed that the jury was not provided with ample guidance to help it reach a correct verdict. The entire instruction fairly presented the case to the jury. Within that instruction, the court summarized the essence of the statutes at issue in ordinary laymen's terms that were clear, understandable and accurate. Moreover, parts of the commissioner’s request to charge were incorporated verbatim into that portion of the court’s instruction.

Although the commissioner contends that the jury could not have understood the pertinent portion of the instruction because the court itself, out of the jury’s presence, indicated that it could not adequately explain the statutes, we are not persuaded. Just as in contract law, where the subjective intentions of the parties is irrelevant, here, too, we are not interested in the trial court’s subjective views about a statute’s level of complexity. The issue is whether the instruction, when seen in its totality, is legally correct, adapted to the issues and sufficient to guide the jury.

We will not examine a jury charge “with [a] legal microscope.” Borsoi v. Sparico, 141 Conn. 366, 371, 106 A.2d 170 (1954). The day has long passed when reviewing courts are to be considered “citadels of technicality.” Kotteakos v. United States, 328 U.S. 750, 759, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946). We conclude that the court’s charge to the jury with regard to the road closure statutes was not clearly erroneous when the overall charge is scrutinized within the framework of our guiding principles.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 13a-144 provides in pertinent part: “damages for INJURIES SUSTAINED ON STATE HIGHWAYS OR SIDEWALKS. Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the commissioner of transportation to keep in repair . . . may bring a civil action to recover damages sustained thereby against the commissioner in the superior court.”

       Prior to the court’s ruling on the admissibility of the photograph, Robison testified as follows:
      “Q. I’m going to show you a photograph that’s been marked as defendant’s exhibit one for identification .... Do you see what’s depicted there, and do you recognize that as one of the kinds of signs used on the construction project?
      “A. One of the kinds of signs, right.
      “Q. All right. And that was placed by the department of transportation, or by your outfit?
      “A. By our—it would have been our job. It would have been placed by us.
      “Q. And were swch signs placed on . . . this job site?
      “A. Yes, they would.
      “Mr. Ferris: Your Honor, I would offer this.
      “Mr. Kazmarcyk: I’m going to object at this point. I don’t believe proper foundations have been made. Counsel may not inquire as to how Mr. Robi-son knows whether or not this type of sign was placed.
      “Mr. Ferris: Is that the only objection?

        “Mr. Kazmarcyk: And also . . . he’s never established that Mr. Robi-son was actually on the construction site. I think it would be difficult for him to identify that photograph if he’s never been on the site, Your Honor.
      “Mr. Ferris: I’m not asking him to identify the photograph . . . Mr. Robison has testified that there were signs placed on this job . . . and that this is one of the kinds of signs that was on that job site, and on that basis I will offer it ... .
      “The Court: I’m going to overrule the objection, but stipulate that this photograph is to be used only as to indicate the type of sign that is put on one of Mr. Robison’s sites.” (Emphasis added.)

       Counsel for the commissioner told the jury: “[WJhen Mr. Robison was on the stand, I asked him, ‘Mr. Robison, look at this photograph. It’s defendant’s one for identification, at this point not in evidence. You talked about signs that were posted on this job. Is this the kind, of sign that was posted on that job throughout the course of the job?’ Ask yourselves if you remember what Mr. Robison’s testimony was. ‘Yes, this is the kind of sign.’ You’re going to have to look at it. Says, ‘Caution. Road legally closed.’ . . . ‘Proceed at your own risk.’ This is the kind of sign that Mr. Zentara and Mr. Robison both said were posted at the ends of the project.” (Emphasis added.)


author: LAVERY, J. O’Connell, J.,

text:
    State of Connecticut v. Pedro Santiago
    (9950)
    Dupont, C. J., O’Connell and Lavery, Js.
    Argued October 30, 1991
    decision released May 13, 1992

      Pamala J. Farrean, deputy assistant public defender, for the appellant (defendant).

      Margaret G. Radionovas, deputy assistant state’s attorney, with whom, on the brief, were, Mark S. Solak, state’s attorney, and Roger Caridad, deputy assistant state’s attorney, for the appellee (state).
   LAVERY, J.

The defendant appeals challenging the denial of his motion to suppress evidence pursuant to General Statutes § 54-94a. The defendant was convicted of possession of a narcotic substance in violation of General Statutes § 21a-279 (a). The defendant was sentenced to a five year term of imprisonment, to run consecutive to any sentence then being served. The sole issue in this appeal is whether the trial court properly denied the motion to suppress narcotics. The defendant claims that (1) the trial court improperly found probable cause to arrest him allegedly on the sole basis of an uncorroborated statement from a confidential informant, and (2) the warrantless search was not justified in the absence of probable cause. Because we disagree with the defendant’s first claim, we need not reach the second.

The following evidence was presented at the suppression hearing. On May 25, 1990, Officers Dennis Griswold and Larry Kozikowski of the Willimantic police department approached an individual who had often served as a confidential informant. On previous occasions, the informant had given Griswold information leading to fifteen arrests for narcotics violations. Griswold was a detective investigating narcotics violations for four years prior to the incident, and had a total of fifteen years of experience as a police officer. Griswold testified that he had attended federal, state, and local schools that train narcotics investigators, and had made approximately 1000 narcotics arrests. The officers asked the informant if he had any information for them that evening. In response, the informant told them that he had just left the Shark Club, a local bar, where he had seen the defendant selling “dope and coke,” vernacular for heroin and cocaine. Griswold knew that the Shark Club was a popular location for the sale of illegal narcotics. The informant identified the defendant by name. Griswold recognized the name of the defendant as a convicted narcotics dealer who was on parole, and was aware that the defendant had been arrested on prior occasions for drug offenses.

After receiving the information from the informant, the officers returned to their car and radioed police headquarters. Within minutes of receiving the information from the informant, they entered the bar and located the defendant. They approached him and asked him to come outside with them. They then took the defendant by the arms and escorted him outside. Once outside, the officers searched the defendant. In one of his pockets, the officers found five small plastic bags containing white powder, which field tested positive as heroin. The officers then arrested the defendant and took him to police headquarters where he was more thoroughly searched. This search at police headquarters produced three small plastic packets, which tests proved to be cocaine. Thereafter, Griswold completed an affidavit of probable cause to support the warrant-less search.

“Under both the federal and state constitutions, a warrantless search is per se unreasonable, subject to a few well defined exceptions. State v. Dukes, 209 Conn. 98, 121, 547 A.2d 10 (1988); State v. Januszewski, 182 Conn. 142, 151-52, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981).” State v. Quinones, 21 Conn. App. 506, 510, 574 A.2d 1308 (1990). One of these well defined exceptions is a search incident to a lawful arrest. “It is an established rule that a properly conducted warrantless search incident to a lawful arrest is not illegal. . . . Section [54-If] of the General Statutes authorizes a police officer to arrest, without a warrant, ‘any person who such officer has reasonable grounds to believe has committed or is committing a felony.’ ” (Citations omitted.) State v. Penland, 174 Conn. 153, 155, 384 A.2d 356, cert. denied, 436 U.S. 906, 98 S. Ct. 2237, 56 L. Ed. 2d 404 (1978); State v. Velez, 215 Conn. 667, 672, 577 A.2d 1043 (1990).

In State v. Barton, 219 Conn. 529, 546, 594 A.2d 917 (1991), our Supreme Court adopted the “totality of the circumstances” analysis of the probable cause requirement as set forth in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). The court set forth the analysis as follows. “In essence, our adoption of a ‘totality of the circumstances’ analysis of the probable cause requirement of article first, § 7, [of the Connecticut constitution] means simply this: When a search warrant affidavit is based on information provided to the police by confidential informants, the magistrate should examine the affidavit to determine whether it adequately describes both the factual basis of the informant’s knowledge and the basis on which the police have determined that the information is reliable. If the warrant affidavit fails to state in specific terms how the informant gained his knowledge or why the police believe the information to be trustworthy, however, the magistrate can also consider all the circumstances set forth in the affidavit to determine whether, despite these deficiencies, other objective indicia of reliability reasonably establish that probable cause to search exists. In making this determination, the magistrate is entitled to draw reasonable inferences from the facts presented. When a magistrate has determined that the warrant affidavit presents sufficient objective indicia of reliability to justify a search and has issued a warrant, a court reviewing that warrant at a subsequent suppression hearing should defer to the reasonable inferences drawn by the magistrate. Where the circumstances for finding probable cause are detailed, where a substantial basis for crediting the source of information is apparent, and when a magistrate has in fact found probable cause, the reviewing court should not invalidate the warrant by application of rigid analytical categories.” State v. Barton, supra, 544-45. Indeed, “the reviewing court should pay great deference to the trial court’s determination regarding the existence of probable cause.” State v. Velez, supra, 673.

On the basis of the evidence, the trial court found that the officers had probable cause for their belief that the defendant was in possession of illegal narcotics at the time of the search. The court considered the facts that the defendant had been previously arrested for a narcotics violation, and the informant had given information leading to fifteen narcotics arrests. The court further found that although the informant in the present case did not explicitly tell the officers that he saw the actual narcotic substances, Griswold was entitled to draw the inference that the informant would recognize a drug transaction when he saw one because both the officer and the informant were familiar with drug transactions. Consequently, the trial court found that the arrest was based on probable cause and the warrantless search was valid, and denied the defendant’s motion to suppress.

In McCray v. Illinois, 386 U.S. 300, 87 S. Ct. 1056, 18 L. Ed. 2d 62 (1967), the United States Supreme Court examined whether information gained from a confidential informant was sufficient to establish probable cause so as to validate an arrest and subsequent warrantless search. In McCray, the informant had supplied the arresting officers with information about narcotics activities on at least fifteen prior occasions, with the information leading to numerous arrests and convictions. Id., 303. The arresting officer was familiar with the petitioner. Id., 302. After receiving information from the informant that the petitioner would be in a certain location, the arresting officers located the petitioner there. Id. The court stated that “[ujpon the basis of those circumstances, along with the officers’ personal observations of the petitioner, the court was fully justified in holding that at the time the officers made the arrest ‘the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense. . . ” (Citations omitted.) Id., 304-305; see also Draper v. United States, 358 U.S. 307, 312-14, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959) (information from a reliable informant verified by direct observation can give police probable cause to make warrantless arrest); United States v. James, 466 F.2d 475, 477 (D.C. Cir. 1972) (identifying information coupled with the arresting officer’s verification of this information is adequate probable cause for an arrest). In both McCray v. Illinois, supra, and Draper v. United States, supra, the court sanctioned the warrantless arrest made on the basis of information from confidential informants similar to the information provided by the informant in the present case.

Here, the informant told the officers that he actually saw the defendant selling narcotics inside the bar. Furthermore, there was other corroboration of the informant’s tip. The bar where the defendant was seen selling drugs was known to the police as a place where drugs were frequently sold, and the defendant was known to the police as a narcotics dealer who had been arrested and convicted in the past for drug offenses. There was sufficient evidence before the officers to constitute probable cause, despite their lack of additional investigation. The following facts establish the basis on which the officers determined that the information was reliable: (1) the informant was known to Griswold; (2) the informant had given reliable information to Griswold leading to fifteen arrests for narcotics offenses in the past; (3) Griswold was aware that the defendant had been convicted of a narcotics offense in the past; and (4) Griswold knew that the Shark Club was a popular location for the sale of illegal narcotics. The following facts describe the factual basis of the informant’s knowledge: (1) the informant identified the defendant by name; (2) the informant witnessed the alleged narcotics sale firsthand; (3) the informant specified “dope and coke” as the exact narcotics that the defendant was selling; (4) both Griswold and the informant were familiar with the manner in which narcotics sales were carried out; and (5) the informant specified exactly where the officers could locate the defendant, and the defendant was, in fact, there.

The defendant stresses that the informant did not give the officers any of the “predicate facts” that formed the basis for his information, and therefore the officers lacked sufficient knowledge of the factual basis of his information. The defendant suggests that had the informant described the drugs, the identity of the purchasers, or where the defendant was seated in the bar, there would have been a sufficient basis to find probable cause. While such evidence may have made the state’s case for probable cause stronger, the absence of that evidence does not necessarily preclude a finding of probable cause under the “totality of the circumstances” analysis. In applying the “totality of the circumstances” analysis, the trial court is free to determine whether the officers had probable cause based not only on the facts available to the officers, but on reasonable inferences from those facts. Because both Griswold and the informant were familiar with narcotics transactions, it is a reasonable inference that when the informant told Griswold that he saw the defendant selling “dope and coke,” he was referring to cocaine and heroin. Since the informant was familiar with drug transactions, it is reasonable also to infer that he knew how narcotics were packaged and their appearance. Given the facts presented and the reasonable inferences they suggest, the trial court did not find probable cause on the sole basis of an uncorroborated statement of the confidential informant. There was corroborative evidence. We conclude that the court properly determined that probable cause existed under the totality of the circumstances.

The judgment is affirmed.

In this opinion Dupont, C. J., concurred.

O’Connell, J.,

dissenting. I cannot agree with the majority that independent police corroboration of the informant’s tip was not required.

It is important to note that because of the procedural history of this case we are not concerned with the lesser standard of reasonable articulable suspicion to sustain a stop and frisk under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Instead, the state must satisfy the much higher burden of demonstrating that the police had probable cause to arrest the defendant when they seized him in the Willimantic bar. I believe that this burden has not been met.

I agree that this case must be decided under the principles of State v. Barton, 219 Conn. 529, 594 A.2d 917 (1991), as that case adopts the principles of Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983) into Connecticut law. I cannot agree, however, with the extremely broad interpretation that the majority gives to the Gates-Barton totality of the circumstances doctrine. Gates and Barton both are aimed at correcting the overly technical application of the Aguilar-Spinelli test in determining an informant’s reliability.1 The two prongs of the Aguilar-Spinelli test were not abolished and are still part of Connecticut probable cause law and remain the starting point for determining an informant’s veracity and basis of knowledge. “In Gates, the [United States] Supreme Court reaffirmed that the ‘veracity’ or ‘reliability’ and the ‘basis of knowledge’ inquiries formulated in Aguilar remain ‘highly relevant’ in the determination of probable cause and should be regarded as ‘closely intertwined issues that may usefully illuminate the common sense, practical question’ of the existence of probable cause to believe that contraband or evidence is located in a particular place. . . . The Gafes court abandoned only a ‘rigid compartmentalization’ of the inquiries and denied that the court had ever intended them to be understood as ‘entirely separate and independent requirements to be rigidly exacted in every case.’ ” (Citation omitted.) State v. Barton, supra, 537.

If the Aguilar-Spinelli test is not satisfied, Gates and Barton permit the trial court to look at other circumstances (i.e., totality of circumstances) to satisfy the informant’s basis of knowledge and veracity. If the Aguilar-Spinelli prongs are satisfied, however, there is no need to look further, and the totality of circumstances doctrine never comes into play.

In the present case, I do not question the informant’s reliability or his basis of knowledge. The Aguilar-Spinelli test is more than adequately satisfied. Gates and Barton have no further relevance to this case. I find nothing in Gates or Barton that abolishes the long established requirement that an informant’s tip must be corroborated by independent police investigation. To the contrary, Gates devotes an entire section to the importance of corroboration. In the words of Chief Justice Rehnquist: “Our decisions applying the totality-of-the-circumstances analysis . . . have consistently recognized the value of corroboration of details of an informant’s tip by independent police work.” Illinois v. Gates, supra, 241.

The majority relies on McCray v. Illinois, 386 U.S. 300, 87 S. Ct. 1056, 18 L. Ed. 2d 62 (1967); Draper v. United States, 358 U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959); and United States v. James, 466 F.2d 475 (D.C. Cir. 1972). These cases do not support the majority decision that independent corroboration is unnecessary. Instead, each of the cited cases carefully details the independent action taken by the police to corroborate the unnamed informant’s tip and emphasizes the importance of such corroboration.

The issue in McCray v. Illinois, supra, was disclosure of the confidential informant’s name, not the existence of probable cause for arrest. The court devoted one brief paragraph to the probable cause issue in which it emphasized that probable cause existed because of the combination of the information furnished by the informant “along with the officers’ personal observation of the petitioner.” (Emphasis added.) Id., 304.

Draper v. United States, supra, is probably the leading case in this country on the establishment of probable cause through police confirmation of an informant’s tip. The informant in Draper furnished exacting details, most of which were confirmed by the police before a warrant was issued. The Supreme Court held that it was the personal verification by the police officer of such details that gave the officer probable cause to believe an offense had been committed. Id., 313.

United States v. James, supra, is a brief per curiam opinion devoid of legal analysis but recognizing the importance of independent corroboration by the police and relying expressly on Draper v. United States, supra, and McCray v. Illinois, supra. The one relevant sentence in the opinion reads, “Under the Supreme Court decisions of McCray v. Illinois [supra] and Draper v. United States [supra] identifying information supplied by a known informant coupled with the arresting officer’s verification of this information is adequate probable cause for an arrest.” (Emphasis added.) United States v. James, supra, 477.

There is no justification in this case to dispense with the rule requiring independent police corroboration of an unnamed informant’s tip. The defendant was arrested solely on the word of a drug user who was a paid police informant. Although an informant’s tip may be used in combination with information gathered by independent police corroboration to establish probable cause, the tip alone is not sufficient to justify intrusion on a person’s constitutional rights. The evil of eliminating the corroboration requirement is that the probable cause determination is thereby delegated to the confidential informant who is insulated from cross-examination. The protection that is afforded by a neutral and detached magistrate’s eventual involvement in the process of determining probable cause is abolished. In State v. Delmonaco, 194 Conn. 331, 481 A.2d 40, cert. denied, 469 U.S. 1036, 105 S. Ct. 511, 83 L. Ed. 2d 401 (1984), our Supreme Court addressed the importance of the first prong of the Aguilar-Spinelli test, namely, the informant’s basis of knowledge. The court stated: “If a judge were to authorize a search based solely on allegations provided by an otherwise credible person without requiring a showing of the underlying circumstances that serve as a basis for the informant’s allegations, the informant would usurp the judge’s role as the finder of probable cause.” Id., 340. Although Delmonaco was decided prior to State v. Barton, supra, the concern and reasoning of the court regarding delegation of the probable cause determination to an informant are still relevant and accurate in probable cause analyses.

Even if we consider the fact that the police found the defendant in the bar to be an independent investigation, the arrest would still not pass constitutional muster. The additional information acquired by the officers must in some sense be corroborative of the informant’s tip that the defendant has committed or is committing the crime. Whitely v. Warden, 401 U.S. 560, 567, 91 S. Ct. 1031, 28 L. Ed. 2d 306 (1971). Here, all that the police saw was the defendant in a bar—a totally innocuous activity. Perhaps further observation by the officers, or a controlled buy, would have given the required corroboration. But neither further observation nor a controlled buy took place, leaving the police with nothing but a man in a bar. This did not add up to probable cause. Further, the search cannot be sustained as incident to a valid arrest unless the arrest itself was valid; State v. Velez, 215 Conn. 667, 672, 577 A.2d 1043 (1990); 4 F. Wharton, Criminal Evidence § 725; and, the fruits of the search cannot be used to sustain a finding of probable cause. Beck v. Ohio, 379 U.S. 89, 96, 85 S. Ct. 223, 13 L. Ed. 2d 142 (1964); State v. Spellman, 153 Conn. 65, 71, 212 A.2d 413 (1965).

The majority relies, in part, on the fact that the bar in question had a reputation as a location for the sale of narcotics. I agree with Justice Glass in his dissenting opinion in State v. Cofield, 220 Conn. 38, 50, 595 A.2d 1349 (1991), that a history of past criminal activity in a locality does not transform otherwise innocent-appearing circumstances into circumstances justifying the suspension of the constitutional rights of anyone who may subsequently be there. See also People v. Aldridge, 35 Cal. 3d 473, 479, 674 P.2d 240, 198 Cal. Rptr. 538 (1984). Moreover, the reputation of the bar does not constitute conduct of the defendant. People v. Bower, 24 Cal. 3d 638, 645, 597 P.2d 115, 156 Cal. Rptr. 856 (1979).

I would vacate the conviction and remand the case to the trial court with instruction to grant the motion to suppress.

Accordingly, I respectfully dissent.

       General Statutes § 54-94a provides in pertinent part: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure . . . the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress . . . .”

       At the hearing, the state produced a detailed list kept by Griswold of persons arrested as a result of information provided by this informant on previous occasions. The list also included the date of each arrest and the offense on which each arrest was based. All of the arrests listed were for drug related offenses, and more than half were for the sale of illegal narcotics.

       We note that “[a] formal arrest need not always chronologically precede the search in order for the search to be valid. Where there is probable cause to arrest, a search before an arrest is reasonable under the fourth amendment as long as the arrest and search and seizure are substantially contemporaneous, and are integral parts of the same incident. Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S. Ct. 2556, 65 L. Ed. 2d 633 (1980); State v. Federici, 179 Conn. 46, 54-55, 425 A.2d 916 (1979).” State v. Kaplan, 20 Conn. App. 183, 188, 565 A.2d 11 (1989).

       The text of Griswold’s affidavit of probable cause is as follows: “[0]n 5-23-90, at approximately 10:00 p.m. this Detective was contacted by a credible and reliable informant who stated the following. That Pedro Santiago was now inside the Shark Club, Main Street, Willimantic, CT, in possession of both heroin and cocaine, which he was selling inside the bar. That Pedro Santiago is known by this Detective, having arrested him numerous times in the past. That the informant further stated that he/she knew that the accused was in possession of heroin and cocaine because he/she had just been inside the said bar and had observed him selling the said drugs to persons inside the bar. That this Detective and Officer Kozikowski immediately drove to the Shark Club Bar. That this Detective had knowledge that numerous drug dealers in our area are selling their illegal drugs (heroin/cocaine) in the Shark Club and that Pedro Santiago, a convicted drug dealer is now on Parole in the State of Connecticut. That this Detective and Officer Kozikowski entered the said bar and located the accused at the bar. That this Detective searched the accused and found him in possession of 5 glassine packets of what field tested positive for heroin. The accused was arrested and taken to H.Q. That the accused stated that this Detective put the heroin in his pocket. (The 5 packets of heroin [were] found in the left inside pocket of the accused.) That at H.Q. this Detective checked the accused further and found 3 small plastic packets of what field tested positive for cocaine. The 3 packets of cocaine were found in the rear area inside the accused’s underwear. The accused again stated that the police put them there. The accused was arrested for possession of narcotics heroin/cocaine, 21a-279a. This report is the truth to the best of my knowledge and ability . . . .”

       General Statutes § 54-If provides in pertinent part: “arrest without warrant. . . . (b) Members of . . . any local police department . . . shall arrest, without previous complaint or warrant, any person who the officer has reasonable grounds to believe has committed or is committing a felony.”

       Because of the procedural posture of this case, our review cannot be based on Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), and its progeny.

       Although State v. Barton, 219 Conn. 529, 594 A.2d 917 (1991), had not yet been decided as of the trial court’s decision on the defendant’s motion to suppress, the state asserts in its brief that the trial court’s finding can be supported by the “totality of the circumstances” analysis of probable cause as adopted in State v. Barton, supra. In his reply brief, the defendant disputes this assertion. The present case must be decided under State v. Barton, supra, because it has been held that its principles have retroactive effect. State v. Johnson, 219 Conn. 557, 594 A.2d 933 (1991); see State v. Ryerson, 201 Conn. 333, 340, 514 A.2d 337 (1986); State v. Anziano, 26 Conn. App. 667, 672, 603 A.2d 415 (1992); State v. Marsala, 26 Conn. App. 423, 424-25, 601 A.2d 542 (1992); State v. Payne, 25 Conn. App. 428, 431, 594 A.2d 1035 (1991).

       We stress that the present case involves a confidential informant known to the police, not an unknown informant supplying an anonymous tip.

       The dissenting opinion cites State v. Delmonaco, 194 Conn. 331, 481 A.2d 40, cert. denied, 469 U.S. 1036, 105 S. Ct. 511, 83 L. Ed. 2d 401 (1984), which was decided under the Aguilar-Spinelli framework as set forth in State v. Kimbro, 197 Conn. 219,496 A.2d 498 (1985). In State v. Delmonaco, supra, 340, our Supreme Court noted that if a judge authorized a search based on an affidavit that did not sufficiently state the informant’s “basis of knowledge,’ ’ the judge’s role as finder of probable cause would be usurped. It is clear that the judge is responsible for determining whether probable cause exists. In the present case, the affidavit was not wholly lacking facts that establish the informant’s basis of knowledge, and the concern of the court in State v. Delmonaco, supra, is not implicated.

       “[EJarlier narcotics related convictions of the defendant can properly be considered when determining the reliability of an informant’s tip. [TJhe prior arrest record, pertaining as it did to the reputation of the defendant, clearly was a practical consideration of everyday life upon which an officer (or a magistrate) may properly rely in assessing the reliability of an informant’s tip. . . .” (Citations omitted; internal quotation marks omitted.) State v. Tulli, 14 Conn. App. 356, 361, 541 A.2d 515, cert. denied, 208 Conn. 809, 545 A.2d 1105 (1988).

        Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637(1969).

       The two prongs of the Aguilar-Spinelli test require a magistrate to examine an informant’s (1) basis of knowledge and (2) veracity or reliability in determining whether probable cause exists.

       In 1 W. LaFave, Search and Seizure § 3.3 (f), the post-Gaies corroboration requirements are discussed at length.