author: Spallone, J.

text:
    Commission on Human Rights and Opportunities ex rel. Charlene Funchess v. Edward Sullivan et al.
    (6975)
    Spallone, Daly and Stoughton, Js.
    Argued January 18
    decision released April 11, 1989

      J. Roger Shull, for the appellant (named defendant).

      Linda Pearce Prestley, assistant attorney general, with whom, on the brief, were Clarine Nardi Riddle, acting attorney general, Joseph I. Lieberman, former attorney general, and David M. Teed, assistant attorney general, for the appellee (plaintiff).
   Spallone, J.

The defendant appeals from the decision of the trial court granting the plaintiffs petition for an order requiring the defendant to answer interrogatories.

On January 17, 1986, pursuant to General Statutes §§ 46a-64 (a) (1) and (2), and 46a-58 (a), Charlene Fun-chess (complainant) filed a complaint with the plaintiff commission on human rights and opportunities (CHRO) against the defendants, Edward D. Sullivan, Jeff Bella and George Ross. The complaint alleged that Sullivan, as principal, and his agents Bella and Ross denied the complainant the opportunity to rent an available apartment owned by Sullivan because of the complainant’s race.

As part of its investigation, the CHRO, pursuant to General Statutes § 46a-54 (10), mailed a set of interrogatories to the named defendant, the owner of the property, at his residence address and his post office box in Fort Lauderdale, Florida, by certified mail, return receipt requested. The return receipt indicated that the interrogatories were received on November 4, 1986. The due date for answers to the interrogatories was November 28, 1986.

On July 15,1987, when no answers to the interrogatories were forthcoming, the plaintiff mailed the interrogatories to the defendants’ attorney. Having received no response from the defendants’ counsel, the plaintiff, pursuant to General Statutes § 46a-88, filed a petition in Superior Court for an order requiring the named defendant to answer the interrogatories. On February 13,1988, in response to the plaintiffs petition, the named defendant filed an answer purporting to respond to the administrative complaint underlying the request for interrogatories. The named defendant also filed a counterclaim alleging, essentially, that the plaintiff was engaging in “a campaign of harassment and intimidation relating to [the] Respondent’s business” and seeking damages. Thereafter, the plaintiff filed a motion to dismiss the counterclaim.

On April 4, 1988, the court heard oral argument on the plaintiff’s petition for an order compelling answers to interrogatories and on the plaintiff’s motion to dismiss the counterclaim. The court marked the motion to dismiss “off” and granted the plaintiff’s petition to compel answers to the interrogatories. The named defendant appeals from both of these decisions.

At the outset, we note that we have considered the issue of whether the trial court’s order compelling the named defendant to answer interrogatories pursuant to General Statutes § 46a-88 is appealable as a final judgment. We are satisfied that this order is a final judgment from which an appeal is properly taken. See Commission on Human Rights & Opportunities v. Archdiocesan School Office, 202 Conn. 601, 606, 522 A.2d 781, appeal dismissed, 484 U.S. 805, 108 S. Ct. 51, 98 L. Ed. 2d 15 (1987); see also Commissioner of Health Services Services v. Kadish, 17 Conn. App. 577, 578 n.1, 544 A.2d 1097 (1989). We therefore review the trial court’s action.

General Statutes § 46a-54 (10) expressly grants to the CHRO the power to “require written answers to interrogatories under oath relating to any complaint under investigation pursuant to this chapter alleging any discriminatory practice . . . . ” General Statutes § 46a-88 permits the CHRO to petition the Superior Court for an order compelling answers to interrogatories propounded pursuant to § 46a-54 (10). In Commission on Human Rights & Opportunities v. Archdiocesan School Office, supra, our Supreme Court stated, “[s]o long as the interrogatories to be enforced are not plainly irrelevant to any lawful purpose of the CHRO, unduly burdensome, or violative of some privilege or other right of the person to whom they are addressed, the statute requires that they be answered, however doubtful the basis for a violation may appear at this preliminary investigative stage.”

We have reviewed the record of the oral argument on the plaintiffs petition for an order compelling answers to interrogatories and find no indication that the trial court abused its discretion in ordering the defendant to answer the interrogatories. It is the appellant’s burden to provide us with an adequate appellate record. Barnes v. Barnes, 190 Conn. 491, 494, 460 A.2d 1302 (1983). The named defendant has failed to demonstrate that the CHRO’s interrogatories were plainly irrelevant, unduly burdensome, or violative of some privilege or other right. We therefore conclude that the trial court did not err in granting the plaintiff’s petition to compel answers to interrogatories.

The named defendant’s second claim is that the trial court erred in refusing to hear his counterclaim. During oral argument on the plaintiff’s motion to dismiss the counterclaim, the plaintiff argued that the trial court was without subject matter jurisdiction to hear the counterclaim because the counterclaim was addressed to the merits of a matter which was the subject of an administrative complaint before the CHRO, and the court’s jurisdiction was limited to enforcing compliance with requests for discovery pursuant to General Statutes § 46a-88 (a). The trial court subsequently marked the plaintiff’s motion to dismiss the counterclaim “off” on the basis that the counterclaim was “improperly before the court.” Because the court’s action is the functional equivalent of a dismissal of the counterclaim, we will decide whether the trial court erred in refusing to consider the counterclaim. We find no error.

The parties were before the court for the sole purpose of obtaining a ruling by the court, pursuant to General Statutes § 46a-88, on the CHRO’s request for enforcement of the discovery procedure established by § 46a-54 (10). The enforcement action created by General Statutes § 46a-88 is designed to assist the CHRO in compelling compliance with interrogatories propounded by it in the exercise of the express power granted to it by General Statutes § 46a-54 (10). The court’s jurisdiction is limited to the determination of issues fairly connected with the enforcement proceeding. See General Statutes § 46a-88 (c). Obviously, the plaintiff’s proper invocation of the court’s jurisdiction by initiation of the statutorily authorized discovery enforcement proceeding did not thereby entitle the named defendant to a determination of the merits of the administrative complaint properly filed with, and being investigated by, the CHRO. His answer and counterclaim to the administrative complaint represent a petition for a determination in his favor of the merits of the issues presented by the administrative complaint and by the counterclaim. The trial court correctly determined that this “pleading” was not properly before the court.

General Statutes § 46a-84 (f) outlines the procedure by which a respondent against whom the CHRO has ultimately certified a complaint may contest the matter: “The respondent may file a written answer to the complaint and appear at the hearing in person or otherwise, with or without counsel, and submit testimony and be fully heard.” (Emphasis added.) If the administrative proceedings reach that stage, the respondent clearly has the option of fully contesting the allegations against him by proceeding in accordance with § 46a-84 (f).

There is no error.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 46a-64. (Formerly Sec. 53-35) DISCRIMINATORY PUBLIC ACCOMMODATIONS PRACTICES PROHIBITED. PENALTY, (a) It shall be a discriminatory practice in violation of this section: (1) To deny any person within the jurisdiction of this state full and equal accommodations in any place of public accommodation, resort or amusement because of race, creed, color, national origin, ancestry, sex, marital status, age, mental retardation or physical disability, including, but not limited to, blindness or deafness of the applicant ... (2) to discriminate, segregate or separate on account of race, creed, color, national origin, ancestry, sex, marital status, age, mental retardation or physical disability . . . .”

       “[General Statutes] Sec. 46a-58. (Formerly Sec. 53-34). deprivation OF RIGHTS, DESECRATION OF PROPERTY. CROSS BURNING. PENALTY, (a) It shall be a discriminatory practice in violation of this section for any person to subject, or cause to be subjected, any other person to the deprivation of any rights, privileges or immunities, secured or protected by the constitution or laws of this state or of the United States, on account of religion, national origin, alienage, color, race, sex, blindness or physicial disability.”

       The defendants Jeff Bella and George Ross, named as respondents in the CHRO complaint, are not involved in this appeal.

       “[General Statutes] Sec. 46a-54. (Formerly Sec. 31-125). commission powers. The commission shall have the following powers and duties: . . . “(10) To require written answers to interrogatories under oath relating to any complaint under investigation pursuant to this chapter alleging any discriminatory practice as defined in subdivision (8) of section 46a-51, and to adopt regulations in accordance with the provisions of chapter 54 for the procedure for the issuance of interrogatories and compliance with interrogatory requests . . . .”

       “[General Statutes] Sec. 46a-88. enforcement of interrogatories. (a) Upon failure of any person to answer interrogatories issued pursuant to subsection (10) of section 46a-54, the commission may file a petition with the interrogatories attached with the superior court of the judicial district in which the violation is alleged to have occurred or where such person resides or transacts business, requesting the court to order that an answer be filed.
      “(b) The commission shall cause a copy of the petition provided for in subsection (a) of this section to be sent by registered or certified mail to the person from whom such answers are sought or his legal representative.
      “(c) The court shall assume jurisdiction over the proceedings provided for in this section and may, after hearing, or in the absence of objection, enter an order which it deems appropriate.
      “(d) The proceedings provided for in this section shall conform to the rules of practice of the superior court.”


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    City of Shelton et al. v. Leslie Carothers, Commissioner of Environmental Protection, et al.
    (7296)
    Spallone, O’Connell and Foti, Js.
    Argued March 15
    decision released March 22, 1989

      Daniel Green for the appellants (plaintiffs).

      Everet E. Newton, with whom, on the brief, was Francis J. Brady, for the appellee (defendant Connecticut Resources Recovery Authority).

      Robert B. Teitelman, assistant attorney general, with whom, on the brief, were Clarine Nardi Riddle, acting attorney general, Joseph I. Lieberman, former attorney general, and Robert E. Walsh, assistant attorney general, for the appellee (named defendant).
   Per Curiam.

The plaintiffs are appealing the decision of the trial court dismissing their administrative appeal because it was untimely served. We agree with the trial court.

The plaintiffs failed to serve notice of their appeal within thirty days of the named defendant’s decision as required by General Statutes § 4-183 (b). Such failure to conform to the statute is fatal to the appeal. See, e.g., Simko v. Zoning Board of Appeals, 205 Conn. 413, 419, 533 A.2d 879 (1987), aff’d on rehearing, 206 Conn. 374, 538 A.2d 202 (1988); Basilicato v. Department of Public Utility Control, 197 Conn. 320, 324, 497 A.2d 48 (1985); Rogers v. Commission on Human Rights & Opportunities, 195 Conn. 543, 550, 489 A.2d 368 (1985); Hanson v. Department of Income Maintenance, 10 Conn. App. 14, 17-18, 521 A.2d 208 (1987).

There is no error.


text:
    William H. Foster v. Smithkline Corporation et al.
    (6569)
    Spallone, O’Connell and Foti, Js.
    Argued March 15
    decision released March 28, 1989

      Alice S. Miskimin, with whom, on the brief, was Herbert Watstein, for the appellant (plaintiff).

      Jackson J. O’Keefe, with whom, on the brief, was Maureen Sullivan Dinnan, for the appellee (defendant Pacifico G. Flores, Jr.).
   Per Curiam.

In this malpractice action, the plaintiff appeals from the judgment rendered after the court directed a defendants’ verdict. He claims the trial court erred (1) in excluding certain hospital records and medical reports, (2) in excluding testimony from the plaintiffs expert concerning causation of gynecomastia, (3) in denying the plaintiffs motion to amend his complaint, (4) in excluding from evidence an authoritive medical study used by the plaintiff’s treating physician, and (5) in directing a verdict for the defendant.

The claims of error pressed by the plaintiff implicate the discretionary powers of the trial court. Our review fails to disclose any abuse of such discretion.

There is no error.


text:
    State of Connecticut v. Albert Daniels
    (6407)
    Dupont, C. J., Spallone and Foti, Js.
    Argued October 4, 1988
    decision released April 11, 1989

      Joette Katz, public defender, for the appellant (defendant).

      Judith Rossi, deputy assistant state’s attorney, for the appellee (state).
   Spallone, J.

The defendant was convicted, after a jury trial, of the crime of sexual assault in the first degree, General Statutes § SSaAO. The defendant claims that the trial court erred (1) in admitting as an admission by silence evidence of the defendant’s failure to respond to accusatory statements directed to him by the victim, (2) in failing to instruct the jury that, in order to find the defendant guilty of sexual assault in the first degree under § 53a-70 (a), it had to agree unanimously on which statutorily designated “method of compulsion” the defendant had employed to compel the victim to engage in sexual intercourse with him, and (3) in permitting the prosecutor to make improper remarks during closing argument, in violation of the defendant’s constitutional rights to a fair trial and due process.

The jury could reasonably have found the following facts. During the evening of September 22, 1986, the defendant and Doe, a male companion, were at the Ashley Cafe in Hartford. At approximately 10:40 p.m., Doe invited the victim, who was alone, to join them at their table. The victim accepted the invitation and joined them for a drink. Sometime later, the defendant and Doe informed the victim that they were leaving the bar to obtain marihuana on Magnolia Street and asked her if she wanted to accompany them. The victim agreed to go along. The two men and the victim left the Ashley Cafe. While walking in an area located near the Vine Street School, Doe asked the victim to engage in sexual intercourse with him. The victim refused and turned to walk away. Doe then grabbed her around the neck, pulled her to the ground and dragged her behind the school. The victim resisted, screaming and struggling, and struck Doe. Doe hit the victim in the jaw and threatened to kill her if she did not stop struggling. He reached into his pocket, a gesture causing the victim to believe he had a weapon. The victim, fearing for her life, ceased resisting but continued to scream. Doe proceeded to engage in sexual intercourse with the victim while the defendant stood nearby, smoking a cigarette and watching. Doe then ordered the victim to remain on the ground and told the defendant to “take his turn.” The victim, crying, complied with Doe’s order to remain on the ground. The defendant then engaged in sexual intercourse with the victim. The police arrived at the scene shortly thereafter, and the defendant was subsequently arrested and charged with sexual assault in the first degree; General Statutes § 53a-70 (a); conspiracy to commit sexual assault in the first degree; General Statutes §§ 53a-48 (a) and 53a-70 (a); and unlawful restraint in the first degree. General Statutes^ 53a-95 (a).

In his first claim of error, the defendant contends that the trial court erred in overruling his objection that the testimony of a state’s witness was hearsay and in admitting that testimony as evidence of an “admission by silence” by the defendant. The following facts are relevant to this claim. During its case-in-chief, the state called Officer Cheryl Canino of the Hartford police department as a witness. Canino testified that, during the early morning hours of September 23, 1986, she was dispatched to the rear of the Vine Street School to investigate a report of a woman screaming. Canino testified that, upon her arrival at the school, she observed a male and a female standing some distance away and began to approach them. In response to a question by the prosecutor, Canino began to testify that, as she approached the two individuals, she heard the female speaking to the male. The defendant interrupted, objecting that the testimony was hearsay. In an offer of proof conducted outside the presence of the jury, Canino testified that, as she approached the two individuals, she heard the victim repeatedly saying to the defendant, “Why did the both of you do this to me?” She further testified that the defendant did not respond to the victim’s statements. The defendant argued that Canino’s testimony regarding what she heard the victim say was hearsay. The state responded that Canino’s testimony about the victim’s statements to the defendant and the defendant’s failure to reply was admissible to establish an admission by conduct. The defendant countered that the admission into evidence of testimony regarding his choice to remain silent in the face of the victim’s accusations violated his rights under the fifth and fourteenth amendments to the United States constitution and his rights under the Connecticut constitution. The defendant contended that he had not been under any obligation to respond to the victim’s statements “based on his fifth, sixth and fourteenth amendment [rights] and [his rights] under the state’s constitution whether he was in custody or not.” The court overruled the defendant’s hearsay objection and ruled that Canino’s testimony about the defendant’s silence was admissible to show an admission by silence.

The defendant concedes on appeal that his choice to refrain from responding to the victim’s accusatory statements is not protected under either the United States constitution or the Connecticut constitution. He argues, however, that the trial court erred in permitting Canino to testify about his failure to respond to the victim’s accusatory statements because the statements were made in the presence of a police officer and therefore the circumstances did not naturally call for him to respond.

The rule in Connecticut is that when a statement, accusatory in nature, made in the presence and hearing of an accused, is not denied or explained by him, it may be received into evidence as an admission on his part. State v. Leecan, 198 Conn. 517, 522, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986); State v. Cook, 174 Conn. 73, 76, 381 A.2d 563 (1977); State v. Yochelman, 107 Conn. 148, 152, 139 A. 632 (1927). Evidence of silence in the prearrest setting may be used either as an admission or for impeachment purposes. State v. Leecan, supra. The theory underlying the rule is that the natural reaction of an innocent person to an untrue accusation is promptly to deny, contradict or otherwise object to it; 29 Am. Jur. 2d, Evidence §§ 633, 638; and that the failure of the person to contradict or reply is probative of his adoption of the assertion. Obermeier v. Nielsen, 158 Conn. 8, 11, 255 A.2d 819 (1969).

The strength of the inference that the defendant’s silence imports acquiescence in the truth of an accusatory statement depends upon the circumstances surrounding the making of the statement. “Recognizing that, at its best, the doctrine of assenting silence brings about the weakest assumption known to the law”; 29 Am. Jur. 2d 692, Evidence § 638; many state courts have imposed conditions upon the introduction of evidence that an alleged admission by silence has occurred. C. McCormick, Evidence (3d Ed.) § 160. Some state courts have even barred entirely the introduction, in any criminal case, of evidence of a defendant’s silence, reasoning, in part, that the inference of assent was too unreliable. See, e.g., State v. Kelsey, 201 N.W.2d 921, 927 (Iowa 1972); Commonwealth v. Dravecz, 424 Pa. 582, 227 A.2d 904 (1967). The doctrine has also been criticized by commentators. See C. Gamble, “The Tacit Admission Rule: Unreliable and Unconstitutional — A Doctrine Ripe for Abandonment,” 14 Ga. L. Rev. 27 (1979); Note, “Tacit Criminal Admissions,” 112 U. Pa. L. Rev. 210 (1963).

Our Supreme Court has joined other state courts in developing standards governing the admissibility of evidence of a defendant’s prearrest silence in the face of accusation. The trial judge must decide, as a preliminary matter, whether proffered evidence of the defendant’s silence in the face of accusation is, under the circumstances, sufficiently probative of assent by the defendant to the accusatory statement made in his presence. See Mei v. Alterman Transport Lines, Inc., 159 Conn. 307, 315, 268 A.2d 639 (1970); Obermeier v. Nielsen, supra. The inference of assent may be made only when no other explanation is equally consistent with silence. State v. Vitale, 197 Conn. 396, 405, 497 A.2d 956 (1985); State v. Harris, 182 Conn. 220, 229, 438 A.2d 38 (1980). Relevant considerations in determining the proper explanation for an actor’s silence are whether the actor heard, understood, and comprehended the statement to which he did not respond, State v. Vitale, supra, 406; whether the circumstances naturally called for a reply from him; id.; and whether there were present physical or emotional factors which render the inference of assent unreliable; State v. Harris, supra.

In reviewing the trial court’s decision to admit Canino’s testimony, we note that, ordinarily, the trial court’s rulings on the admissibility of evidence are accorded great deference and will be disturbed on appeal only upon a showing of clear abuse of discretion. Ellice v. INA Life Ins. Co. of New York, 208 Conn. 218, 222, 544 A.2d 623 (1988); State v. Erhardt, 17 Conn. App. 359, 553 A.2d 188 (1989). We consider, therefore, whether the trial court could reasonably have concluded, on the basis of the evidence before it, that the fact of the defendant’s silence was sufficiently probative of assent to an accusatory statement to permit its admission into evidence as an admission by silence.

At the time the trial court ruled on the admissibility of Canino’s testimony, the state had presented the testimony of only one other witness, the victim. Through the testimony of Canino and the victim, evidence of the following circumstances had been presented. The victim, in a state of extreme emotional upset, asked the defendant why he and Doe had done what they did to her. At the time the victim directed this statement to the defendant, the defendant was standing near the victim. Canino was approaching and was within two feet of the defendant and the victim at the time the victim was speaking, and the defendant was facing Canino. At the time the trial court was called upon to rule on the question before it, this evidence was uncontradicted.

On this state of the record, a close question is presented. There was sufficient evidence from which the trial court could conclude that the defendant heard the victim’s statement; the testimony of both the victim and Canino supports such a finding. The first question is whether the statement made by the victim was sufficiently accusatory in import to call naturally for a response from the defendant. The incriminating content of a statement is to be considered in determining whether an ordinary person would deny it. United States v. Schulman, 624 F.2d 384 (2d Cir. 1980); United States v. Flecha, 539 F.2d 874 (2d. Cir. 1976); State v. Harris, supra. On one hand, the statement “why did you do this to me” is ambiguous in that it does not by terms identify any wrongful act. An individual making such a statement could as well be referring, for instance, to another’s late arrival for an appointed meeting as to some criminal or otherwise wrongful act allegedly committed against him by the other. We think, however, that the trial court could reasonably conclude that the statement “why did you do this to me” carried sufficiently accusatory implications to call for a response from the one to whom it was directed. In order to be accusatory in character, a statement does not necessarily have to be of such tenor that any stranger hearing it would understand it as such. Annot., 80 A.L.R. 1235, 1278. The statement “why did you do this to me” is expressive of a belief held by the declarant that the defendant had done something “to” her which required explanation. Such an expression is fairly characterized as accusatory.

We next consider whether, as argued by the defendant, the trial court should have refused to admit, as an admission by silence, evidence of the defendant’s silence because the presence of police, at the time a response would otherwise have been called for, rendered the significance of the defendant’s choice to remain silent ambiguous. It is undoubtedly true that some individuals might, in the situation faced by the defendant, choose not to answer. “[I]t is a lamentable but undeniable fact of modem society that some of our citizens harbor a mistrust for law enforcement authority which leads them to shun contact with the police even when the avoidance of contact is not in their own best interest ... . Such individuals may refrain from speaking to law enforcement officials not because they are guilty of some crime, but rather because they are simply fearful of coming into contact with those whom they regard as antagonists.” People v. Conyers, 52 N.Y.2d 454, 458, 438 N.Y.S.2d 741, 420 N.E.2d 933 (1981). An individual’s prearrest silence in the presence of police could be attributable to “the natural caution that arises from his knowledge that anything he says might later be used against him.” Id. Because there are at least several plausible explanations for why an individual might refrain from responding to an accusatory statement directed to him in the presence of police, the defendant’s argument that his silence was too ambiguous to be admissible as an admission is appealing. Clearly, the probative value of evidence of a choice to remain silent in the face of accusation as proof of assent to the statement is less when the accusatory statement is made in the presence of police than if police were not present. We decline, however, to adopt a rule that would make evidence of a defendant’s choice to remain silent in the face of an accusation directed to him by another in the presence of police inadmissible as a matter of law and adopt instead a case-by-case approach.

On the basis of the facts of this case, we decide that the trial court erred in permitting Canino to testify that the defendant remained silent in the face of the victim’s accusation. At the time the court ruled on the admissibility of the state’s evidence of the defendant’s silence, the uncontradicted evidence regarding the surrounding circumstances was (1) that the victim was making her accusatory statement as Canino approached, (2) that the defendant saw Canino, a police officer, approaching, (3) that Canino arrived just as the victim completed the accusatory statement, and (4) that the victim, according to her own testimony, was “very, very emotional” at the-time she made the statement. On this record, we cannot say that it was reasonable for the trial court to conclude that a sufficiently strong inference of assent could be drawn from the fact of the defendant’s silence to justify admission of this fact into evidence. First, evidence that the declarant of an accusatory statement was highly emotional at the time the statement was made may weaken any inference of assent that might otherwise be drawn from the fact of silence to such an extent that evidence of the silence is rendered inadmissible. State v. Harris, supra. In State v. Harris, supra, the Supreme Court held that the trial court erred in admitting, as an admission by silence, evidence of the defendant’s choice to remain silent in response to an accusatory statement because evidence that the declarant was in a state of emotional hysteria when she made the statement gave rise to an alternative explanation for the defendant’s silence. The court in Harris stated: “In this circumstance the defendant may well have felt that any response on his part either would have been pointless because [the declarant’s] agitated mental condition precluded her from appreciating any reasonable rejoinder or might have exacerbated the existing tension.” The present case involves similar evidence of an “emotional factor” constituting, under State v. Harris, “a sufficient impediment . . . to the invocation of the inference [of assent].” Id. In Harris, the existence of this ‘emotional factor” was sufficient in and of itself to render evidence of the defendant’s silence inadmissible.

Second, the evidence before the trial court was that, as the victim spoke the accusatory words, Canino, a police officer, was approaching the place where the victim and the defendant were standing, that the defendant was aware of this, and that Canino’s arrival and the victim’s completion of the accusatory statement were practically simultaneous. On these facts, we think the defendant’s failure to respond to the victim’s statement is equally likely to be attributable to distraction or apprehension occasioned by the impending arrival of a police officer; see People v. Conyers, supra; or to bewilderment or confusion, as to acquiescence in the truth of the accusatory statement. In short, in the particular circumstances involved in this case, the fact that the defendant remained silent was too unreliable as evidence of assent to the victim’s statement to be admissible as an admission by silence.

Although we find that the trial court erred in overruling the defendant’s hearsay objection and admitting, as an admission by silence, evidence of the defendant’s silence in the face of accusation, the question remains whether the error was harmful. The error in this case does not involve a constitutional violation. The burden is therefore on the defendant to demonstrate the harmfulness of the court’s error. State v. Harris, supra, 230; State v. Petterson, 17 Conn. App. 174, 183, 551 A.2d 763 (1988). “ ‘The defendant must show that it is more probable than not that the erroneous action of the court affected the result.’ ” State v. Petterson, supra, 183, quoting State v. Jones, 205 Conn. 723, 732, 535 A.2d 808 (1988). The defendant in his appellate brief essentially argues that “[a]ny admission by silence to [the] accusation had monumental effect in establishing [the defendant’s] guilt in an otherwise close case.” The defendant’s conclusory statement fails to demonstrate that it is more probable than not that the trial court’s error affected the result in the case. “In the absence of any showing of prejudice, any discussion of harmfulness is speculative at best.” State v. Petterson, supra. Moreover, our review of the record reveals that the case against the defendant was sufficiently strong that the jury in all probability would have found him guilty of the crime charged even if the erroneously admitted evidence had not been admitted. See State v. Flinter, 16 Conn. App. 402, 548 A.2d 1 (1988). We conclude that the trial court’s error in admitting evidence of the defendant’s silence in the face of accusation was harmless.

The defendant’s second claim is that the trial court erred in failing to instruct the jury that, in order to find the defendant guilty of sexual assault in the first degree under General Statutes § 53a-70, it had to decide unanimously which of two statutorily designated acts necessary to constitute the offense the defendant had committed. The defendant asserts that that failure violated his right to a unanimous jury verdict in a trial by a six-member jury under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution because the jurors could have believed that they could find him guilty even if they did not unanimously agree on which act the defendant committed.

The defendant neither submitted a request to charge nor excepted to the charge given by the trial court. Generally, this court will not consider claims of error relating to the trial court’s charge to the jury where no request to charge was submitted and no exception was taken to the charge as given. Practice Book §§ 854, 4185; State v. Benite, 6 Conn. App. 667, 670, 507 A.2d 478 (1986). The defendant requests review, however, under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). We have previously held that the federal constitutional issue raised by the defendant in this case falls within the “exceptional circumstances” rule of State v. Evans, supra. State v. Velez, 17 Conn. App. 186, 196, 551 A.2d 421 (1988); State v. Benite, supra, 671; State v. West, 3 Conn. App. 650, 654-55, 491 A.2d 428 (1985). We will therefore address the defendant’s federal constitutional claim.

The state charged the defendant by substitute information with sexual assault in the first degree, in violation of General Statutes § 53a-70 (a), alleging that the defendant “compelled the victim to engage in sexual intercourse by the use of force and the threat of use of force . ” (Emphasis added.) At trial, the court charged the jurors that, in order to find the defendant guilty of sexual assault in the first degree, they must find that the state had proved beyond a reasonable doubt that “the defendant compelled the victim to engage in . . . sexual intercourse, either by the use of force or by the threat of the use of force.” (Emphasis added.) The court later instructed the jurors that they must render a unanimous verdict. The court did not instruct the jurors that they could only find the defendant guilty if they could unanimously agree on which method of compulsion — use of force or threat of use of force — the defendant used. The defendant argues that the court’s failure to charge the jurors that they had to agree unanimously in this regard permitted them to convict the defendant even if all jurors did not agree on the means by which the defendant compelled the victim to engage in sexual intercourse.

The issues encompassed by the defendant’s claim have previously been analyzed by this court. A specific unanimity instruction is required “only where a trial court charges a jury that the commission of any one of several alternative actions would subject a defendant to criminal liability, and those actions are conceptually distinct from each other, and the state has presented some evidence supporting each alternative.” State v. Benite, supra, 674-75. (Emphasis added.) This court decided in State v. West, supra, 656, that “the use of force” and “the threat of use of force” were not “conceptually distinct” acts requiring the giving of a specific unanimity charge to the jury. These decisions are dispositive of the claim raised by the defendant, and we hold that the trial court’s failure to charge the jurors that they must unanimously agree whether the defendant employed “use of force” or “the threat of use of force” did not violate the defendant’s right, under the sixth and fourteenth amendments, to a unanimous verdict in a trial by a six-member jury.

The defendant’s final claim is that the trial court erred in permitting the state’s attorney improperly to “[inject] into argument the notion that someone was either lying or committing perjury.” The defendant points to six remarks made by the state’s attorney during final argument, claiming that the state’s attorney in effect told the jury that it had to conclude that the victim was a liar before it could believe the defendant’s version of events and acquit him. He claims that those remarks violated his rights to a fair trial and to due process of law under the fifth and fourteenth amendments to the United States constitution and under article first, § 8, of the Connecticut constitution.

The defendant made no objection to the prosecutor’s remarks either during or after the argument and requested no curative charge. Where a criminal defendant does not object and take exception to allegedly prejudicial remarks of the state’s attorney, either at the time they were made or at the close of argument, he waives his right to press the claimed error on appeal. State v. Chace, 199 Conn. 102, 108, 505 A.2d 712 (1986); State v. Tyler-Barcomb, 197 Conn. 666, 673, 500 A.2d 1324 (1985). Where counsel fails to object or to request a curative charge, “ ‘we have presumed that defense counsel did not view the remarks as so prejudicial that his client’s right to a fair trial was seriously jeopardized.’ State v. Lubesky, [195 Conn. 475, 484, 488 A.2d 1239 (1985)]; State v. Falcone, 191 Conn. 12, 23 n.13, 463 A.2d 558 (1983).” State v. Chace, supra.

The defendant claims review under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). Our Supreme Court has reviewed claims of prosecutorial misconduct under State v. Evans, supra, where the defendant raised a claim, adequately supported by the record, that he clearly has been deprived of a fundamental constitutional right and a fair trial. State v. Williams, 204 Conn. 523, 536, 529 A.2d 653 (1987); State v. Findlay, 198 Conn. 328, 344, 502 A.2d 921, cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 921 (1986); State v. Glenn, 194 Conn. 483, 497, 481 A.2d 741 (1984). Evans review of claims of prosecutorial misconduct has been denied, however, where claimed misconduct was not “blatantly egregious” and consisted only of “isolated and brief episodes” that did not reveal “a pattern of conduct repeated throughout the trial.” State v. Williams, supra, 537; see also State v. Robinson, 14 Conn. App. 146, 150, 539 A.2d 1037, cert. denied, 208 Conn. 805, 545 A.2d 1101 (1988).

Our review of the record in this case leads us to conclude that review under Evans of the defendant’s claim is not warranted. The defendant has pointed to six remarks made by the prosecutor during closing argument. No pattern of conduct repeated throughout the trial is evident; rather, the claimed misconduct consists only of isolated and brief remarks which have no blatantly egregious import. The defendant’s claim of pros-ecutorial misconduct is not adequately supported by the record. Accordingly, we conclude that the defendant has failed to raise a claim, adequately supported by the record, that misconduct by the prosecutor caused him to be deprived of a fundamental constitutional right and a fair trial, and we therefore decline to review the defendant’s claim under Evans.

There is no error.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 53a-70. sexual assault in the first degree: CLASS B FELONY: ONE YEAR NOT SUSPENDABLE. (a) A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person.
      “(b) Sexual assault in the first degree is a class B felony for which one year of the sentence imposed may not be suspended or reduced by the court.”

       “Doe” is a pseudonym. Both the victim and the defendant testified that they did not know the man’s name, and he has never been identified. At trial, the parties referred to this individual as “Mr. X.”

       The jury acquitted the defendant of the conspiracy and unlawful restraint charges.

       See Jenkins v. Anderson, 447 U.S. 231, 235, 100 S. Ct. 2124, 65 L. Ed. 2d 2486 (1980); Doyle v. Ohio, 426 U.S. 610, 617-18, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976); State v. Shashaty, 205 Conn. 39, 48-49, 529 A.2d 1308, cert. denied, 484 U.S. 1027, 108 S. Ct. 753, 98 L. Ed. 2d 766 (1988); State v. Leecan, 198 Conn. 517, 522, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986).

       The victim testified on direct examination as follows:
      “Q. And after you got up did you say anything to the Defendant?
      “A. Yes.
      “Q. What was that?
      “A. I said to him why did you both all have to do this to me. Why did you all do this to — do it to me.
      “Q. And what was your emotional state at that particular time, if you recall?
      “A. I was very, very emotional.”
      During the offer of proof, Officer Canino testified on questioning by the prosecutor as follows:
      “Q. Officer Canino, you testified that as you approached the victim who was later identified as Miss H and the Defendant Mr. Daniels you overheard the female victim say something to Mr. Daniels, is that correct?
      “A. Correct.
      “Q. What did you hear the victim say to Mr. Daniels as you approached them? . . .
      “A: Can I continue? Why did the both of you do this to me?
      “Q. Could you please say that again?
      “A: Why did the both of you do this to me?
      “Q. And did she say that once or more than once?
      “A. She kept repeating herself.”

       The victim testified on direct examination:
      “Q. . . . Did you get up off the ground?
      “A. Yes.
      “Q. And did the Defendant get up off the ground?
      “A. Well, yes. When the cops came we was standing up.”

       Canino testified during the offer of proof:
      “Q. How far were you from the young lady when she said this?
      “A. Well, I was — I was still moving as she was saying this, so by the time that the statement was finished, the first time I’ll say one to two feet.”

       Canino testified during the offer of proof:
      “Q. And when you shone — shined the flashlight or spotlight on these two parties, could you make out who they were in terms of male, female, black, white?

        “A. Female and male. Black female and male.
      “Q. And what at that point did you do, if anything?
      “A. Okay. They didn’t know what had happened. The female was — her . back was toward me so she didn’t — she didn’t see me come up. He saw and so I just — I walked over there.”

       We decline to undertake an analysis of whether the defendant’s rights under article first, § 8, of the Connecticut constitution were violated because the defendant offers no separate analysis of the Connecticut constitution as a basis for different treatment of the federal and state claims. See State v. Bowden, 15 Conn. App. 539, 543, 545 A.2d 591, cert. denied, 209 Conn. 810, 548 A.2d 438 (1988).

       The defendant outlines the offending remarks in his brief as follows: “First in its opening statement, the State argued that the defendant’s testimony showed either that he was mistaken through lack of memory or that he was lying. . . . Then, when commenting on the defendant’s argument, which merely called attention to the inconsistencies amongst the State’s own witnesses and never once called any of them liars, the State wrongfully characterized Mr. Gold as having called Miss H drunk, lying or mistaken. . . . Then the State asked why Miss H would want to perjure herself. . . . The State again tried to make the jury think that Mr. Gold had called Miss H a liar; in commenting upon all the consistencies in her various statements, the State, three separate times, sarcastically called Miss Ha‘great liar’. . . . It followed up by arguing that if the defendant’s story was correct then Miss H had to either be a great liar or a great actress (based upon her performance in front of Canino at the scene). . . . And finally, in rebutting the defendant’s attacks on the poor police investigation, the State asked whether the failure to get the name of the person who reported Miss H’s screams automatically meant that the police or Miss H were lying.”


author: Stoughton, J.

text:
    H. Judson Carr, Executor (Estate of Cleo M. Millerbaugh) v. Stephen T. Huber et al.
    (6890)
    Borden, O’Connell and Stoughton, Js.

      Argued January 4
    decision released April 18, 1989

      Daniel N. McLean, pro hac vice, with whom was Gordon M. Lucey, for the appellant (defendant St. Labre Indian School Educational Association).

      Eugene C. Cushman, for the appellee (named defendant).

      John J. Carta, Jr., for the appellee (plaintiff).
   Stoughton, J.

The defendant St. Labre Indian School Educational Association (St. Labre), residuary-devisee and legatee under the will of the late Cleo M. Millerbaugh, appeals from the judgment rendered in an action brought for construction of the fifth paragraph of the wall.

Millerbaugh died on August 25,1979, leaving a will and first codicil that were duly admitted to probate. The plaintiff was approved as executor in accordance with the terms of the will, and he was given, in addition to other powers and duties, broad powers to sell at public or private sale real or personal property forming a part of the decedent’s estate. In the fourth paragraph of her will, as amended by the codicil, Millerbaugh left bequests to her husband’s children and to various other beneficiaries. In the fifth paragraph of the will, Millerbaugh directed that her house and its contents be sold, and it is the construction of that paragraph that gives rise to this appeal. The sixth paragraph of the will gave the. residue of the estate to St. Labre.

The fifth paragraph of the will reads as follows: “FIFTH: If I own the house on Ferry Road in Old Saybrook, Connecticut, presently occupied by me as my home at the time of my death, I direct that said property (three acres, more or less), the house and outbuildings with all of their contents, lock, stock and barrel, be sold, preferably to someone who would appreciate its historical significance, but in any event to a buyer who meets with the approval of Celia Jacobs Stevenson, now or formerly of North Granby,. Connecticut 06060.

“Stephen T. Huber of East Lyme, Connecticut, if he survives me, is to have first refusal to buy the property (three acres, more or less) and the house and outbuildings with all of their contents, lock, stock and barrel, at a price deemed reasonable to him; provided the price meets -with the approval of Celia Jacobs Stevenson. I direct that Celia Jacobs Stevenson be reimbursed for any expenses which she may incur as a result of this provision, and that she also receive a reasonable fee for her services.”

Huber offered $70,000 for the house and contents, and Stevenson approved that amount. The executor moved for authority to sell the house and contents at private sale. The Probate Court, after notifying the interested parties and holding a hearing, denied the application. The reasons given for denial were that the fifth paragraph was ambiguous, particularly the words “first refusal,” and that the intent to benefit the charitable beneficiary could not be ignored. The Probate Court noted that since the appraised value of the property was considerably higher than the proposed sale price, a sale would result in a considerable loss to the charitable beneficiary and the proposed sale should be denied. Because the Probate Court found an ambiguity in the fifth paragraph, it directed the executor to apply to the Superior Court for an interpretation of the will. Instead of doing so, the executor appealed to the Superior Court from the denial of his application for an approval of private sale. In dismissing the appeal, the Superior Court construed the will and held that the language in fifth paragraph concerning a right of first refusal was void for uncertainty. On appeal to this court, we affirmed the judgment of the trial court but we held that the Superior Court, exercising the limited statutory jurisdiction of the Probate Court on appeal, had exceeded its jurisdiction in construing the will since that construction was not merely incidental to deciding whether to authorize a sale. Huber v. St. Labre Indian School Educational Assn., 4 Conn. App. 436, 494 A.2d 629 (1985).

The executor then instituted an action in the Superior Court seeking a construction of the fifth paragraph of the will. It is that action that is the subject of this appeal. The trial court found no ambiguity or uncertainty in fifth paragraph. It concluded that the right of first refusal gave Huber an option to purchase the house and property at a price deemed reasonable to him with the approval of Stevenson, and that this was a very clear, concise and uncomplicated expression by the testatrix of the manner in which the price was to be fixed. This appeal by St. Labre, the residuary beneficiary, followed.

St. Labre claims in essence that the trial court erred (1) in failing to find an ambiguity in the fifth paragraph, (2) in failing to find that Stevenson had breached a duty imposed upon her by the will, (3) in refusing to conclude that the findings made by the trial court in Huber v. St. Labre Indian School Educational Assn., supra, were res judicata, and (4) in concluding that the executor may consummate the sale without Probate Court approval. We find no error.

In an appeal from a decision construing a will, we must determine whether the conclusions of the trial court were correct. Cornell v. Cornell, 165 Conn. 376, 381, 334 A.2d 888 (1973). “The construction of a will presents a question of law to be determined in the light of facts which are found by the trial court or are undisputed or indisputable. Spurr’s Appeal, 116 Conn. 108, 111, 163 A. 608 [1933].” Wehrhane v. Payton, 133 Conn. 478, 484, 52 A.2d 711 (1947); see also Hershatter v. Colonial Trust Co., 136 Conn. 588, 596, 73 A. 97 (1950). When the facts have been found or are undisputed, nothing remains but for the trial court to exercise its legal judgment and “ ‘to draw its inference from the facts .... [I]n such a case the conclusion of the court can always be reviewed by the appellate court. An erroneous conclusion is an error of law and not an error in an inference of fact.’ Hayden v. Allyn, 55 Conn. 280, 289, 11 Atl. 31 [1887].” Davis v. Margolis, 107 Conn. 417, 421, 140 A. 823 (1928).

The primary function and duty of the courts is to ascertain the intent of the testatrix and to carry it into effect. Hartford National Bank & Trust Co. v. Thrall, 184 Conn. 497, 502, 440 A.2d 200 (1981). The same or substantially similar expressions seldom occur in different wills, and in construing a will precedents are entitled to little weight where they do not involve precisely analogous testamentary language, used by testators surrounded by like circumstances at the execution of their wills. Hartford National Bank & Trust Co. v. Harvey, 143 Conn. 233, 243, 121 A.2d 276 (1956). Where the testatrix' intent is apparent, the courts will give effect to that intent even though it may not be expressed in formal legal language. Mott v. Teagle Foundation, Inc., 156 Conn. 407, 412-13, 242 A.2d 739 (1968); Dennen v. Searle, 149 Conn. 126, 132, 176 A.2d 561 (1961). The words used by the testatrix are to be interpreted according to their ordinary meaning unless the context or circumstances indicate a different meaning. Dei Cas v. Mayfield, 199 Conn. 569, 572, 508 A.2d 435 (1986); Keogh v. Jann, 10 Conn. App. 183, 187, 522 A.2d 315 (1987); see Hartford National Bank & Trust Co. v. Devitt, 145 Conn. 384, 388, 143 A.2d 441 (1958); Bankers Trust Co. v. Pearson, 140 Conn. 332, 345, 99 A.2d 224 (1953); Budington v. Houck, 134 Conn. 72, 76, 54 A.2d 671 (1947). The intention of the testatrix is to be sought in the language used by the testatrix in light of the circumstances surrounding and known to her at the time the will was executed. Hartford National Bank & Trust Co. v. Thrall, supra. The court studies the entire will and seeks to determine the meaning of what the testatrix said, not to speculate upon what she meant to say. Id. If the testatrix has clearly expressed one intention, the court has no power to impute another to her. Colonial Bank & Trust Co. v. Stevens, 164 Conn. 31, 41, 316 A.2d 768 (1972); Hoenig v. Lubetkin, 137 Conn. 516, 523, 79 A.2d 278 (1951); Bronson v. Pinney, 130 Conn. 262, 269, 33 A.2d 322 (1943). The court may not modify a will by construction in order to make it conform to its own opinion as to a more equitable distribution. Travelers Bank & Trust Co. v. Birge, 136 Conn. 21, 26, 68 A.2d 138 (1949). The question is what intention the testatrix has expressed in the will and absent any latent ambiguity, that intention is to be determined from the will itself without the use of extrinsic evidence. Connecticut Junior Republic v. Sharon Hospital, 188 Conn. 1, 19, 448 A.2d 190 (1982). “ ‘The language of the will is controlling. “When the purpose of the testator is reasonably clear by reading the words in their natural sense, ‘we must not be deterred by the conjecture that some remote consequences were not in the testator’s mind, or might not have been quite satisfactory to him, if he had thought of them.’ Holmes, J., in Dove v. Johnson, 141 Mass. 287, 290 [5 N.E. 520 (1866)].” Anderson v. Bean, 220 Mass. 360, 363, 197 N.E. 964 [1915].’ Travelers Bank & Trust Co. v. Birge, [supra].” Connecticut Junior Republic v. Sharon Hospital, supra, 20.

The words used in the fifth paragraph of the will direct that the house and contents be sold to a buyer approved by Stevenson, preferably one who would live in the house and who would appreciate its historical significance. The intent is clearly expressed that Huber was to be given the opportunity to purchase the house and contents before they were offered to any other purchaser, and that the price he was to pay was to be a price that he himself deemed reasonable, provided that it met with the approval of Stevenson.

This intent could not have been expressed more clearly. If the testatrix had intended that Huber have the right to match any other offer, or any bona fide offer, she could have said so. She might have provided that the price be fixed by the fair market value, or the value as determined by a particular appraiser, or by the assessed value, or be related to some such amount by some percentage or in some other manner. She did none of those things. She left it to Huber to decide what price seemed reasonable to him. As long as Stevenson approved the price, that was what Huber was to pay. The testatrix might have included some standard by which Stevenson was to decide whether to approve the price, but she did not. She chose to rely upon Stevenson’s unfettered judgment, and she could do so if she wished. Moreover, as the trial court noted, “the very fact that the testatrix went to the trouble of establishing this special provision makes it clear that she contemplated that the price deemed reasonable to Huber with the approval of Stevenson might not be fair market value.” We agree. This provision was put there for a purpose and we will not construe this will in a manner that would render it superfluous or meaningless. As long as the intent was clearly expressed, and did not bring about some unlawful result or violate public policy, a court is bound to carry it out.

The residuary beneficiary complains that the residuary estate is reduced if the property is sold for less than its fair market value. That is undoubtedly true, but the testatrix was free to give away the house and contents if she wished to do so which would have brought about an even greater reduction in the residue. We agree with the trial court that the fifth paragraph of the will is unambiguous.

As to St. Labre’s second claim, we also agree with the trial court that Stevenson carried out the duty imposed upon her by the will. She was not required to seek expert advice as to the value of the property simply because the testatrix provided that Stevenson should be reimbursed for any expenses she might incur.

St. Labre’s third claim is that the trial court erred in concluding that the findings, made by the trial court in the appeal from probate, were not res judicata in the action before it to construe the will. In Huber v. St. Labre Indian School Educational Assn., supra, 440, we expressly stated that the trial court in that action had “exceeded its jurisdiction by construing the testatrix’ will since that construction was not merely incidental to deciding, whether to authorize a sale.” (Emphasis added.) “ ‘It is an acknowledged principle of . . . every court in the world, that not only the decisions, but every thing done under the judicial process of courts, not having jurisdiction, are, ipso facto, void.’ Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat) 304, 364 (1816); Chrysler Credit Corporation v. Fairfield Chrysler-Plymouth,Inc., 180 Conn. 223, 229, 429 A.2d 478 (1980) (Loiselle, J., concurring); Marshall v. Clark, 170 Conn. 199, 205, 365 A.2d 1202 (1976).” Broaca v. Broaca, 181 Conn. 463, 468, 435 A.2d 1016 (1980).

“Proceedings conducted or decisions made by a court are legally void where there is an absence of jurisdiction over the subject matter. Marshall v. Clark, [supra].” Farricielli v. Personnel Appeal Board, 186 Conn. 198, 206, 440 A.2d 286 (1982). Accordingly, the findings made by the court in the appeal from probate were void and were not res judicata in the action for construction of the will. There is no merit to this claim.

St. Labre’s final claim is that the trial court erred in concluding that the executor might consummate the sale without the approval of the Probate Court.

The executor was given broad powers of sale under the will and was not required to seek Probate Court approval for a sale. Once having voluntarily initiated the judicial process, however, he was bound by the court procedure he invoked. Merrimac Associates, Inc. v. DiSesa, 180 Conn. 511, 519, 429 A.2d 967 (1980). Under the facts of this case the plaintiff went as far as he could to seek Probate Court approval. His application for approval was denied and he was directed to seek construction of the will. Having done so, he should not be required to return to the Probate Court for approval. There is no merit to this claim.

There is no error.

In this opinion the other judges concurred.

       Because we find that the terms of the fifth paragraph are clear and unambiguous, it is unnecessary to discuss at length the claim of St. Labre that the trial court should have considered extrinsic evidence in construing the will. In construing a will, extrinsic evidence is admissible only where there is an ambiguity in the will. Connecticut Junior Republic v. Sharon Hospital, 188 Conn. 1, 9, 448 A.2d 190 (1982).

       We do not consider St. Labre’s claim that the Superior Court in the appeal from probate had the power to construe the will. St. Labre, in effect, is asking us to reverse our decision in Huber v. St. Labre Indian School Educational Assn., 4 Conn. App. 436, 494 A.2d 629 (1985), which we decline to do.


text:
    Louis Molic et al. v. Zoning Board of Appeals of the Town of Redding et al.
    (6614)
    (6615)
    (6616)
    Borden, O’Connell and Stoughton, Js.

      Argued November 2, 1988
    decision released April 18, 1989

      Michael N. LaVelle, with whom, on the brief, was Lisa L. Brown, for the appellant-appellee (named defendant).

      George M. Cohan, with whom, on the brief, were Richard A. Smith and Harvey J. Kulawitz, for the appellants-appellees (defendant Dennis Pistone et al.).

      Nancy Burton, for the appellees-appellants (plaintiffs).
   Stoughton, J.

The defendants Dennis J. and Nancy R. Pistone, and the defendant Redding zoning board of appeals (board) appeal separately from the decision of the trial court reversing a decision of the board. The essential claim of the defendants is that the court erred in that it exceeded the proper scope of judicial review. The plaintiffs also have appealed and claim that the court erred (1) in presuming that the Pistones’ parcel of land could be subdivided and resubdivided, (2) in that its conclusion usurped the functions of the Redding planning and zoning commission (commission), and (3) in that its conclusion forecloses the plaintiffs from benefiting from their successful appeal. We find error on the defendants’ appeals.

The plaintiff Louis Molic owns property in Redding that is within 100 feet of property that the Pistones purchased on March 25,1985, consisting of 2.015 acres. The Pistones purchased that property from the executors of the estate of Joy P. Cushman. On October 10, 1986, the Pistones applied to the commission for a permit to erect a single-family residence, and, on October 14, 1986, a permit was issued by the zoning enforcement officer. On October-31, 1986, the plaintiffs appealed to the board, asserting that the permit had been issued in violation of § 6.2 of the zoning regulations of the town of Redding in that the application did not include a copy of a subdivision plan approved by the commission. The plaintiffs sought revocation of the permit. The board conducted a hearing and denied the appeal, whereupon the plaintiffs appealed to the trial court. The court sustained the plaintiffs’ appeal, and these appeals followed.

Cushman acquired a portion of her property from her parents in 1929 by one deed by which her father conveyed a tract described as one acre more or less and her mother conveyed a tract described as two acres more or less. There was a house on this parcel and there were other structures. Cushman lived in the house for many years until her death in 1983. Cushman had added a small triangular piece to the southeast which she acquired by deed in 1943, and it appears that there is a swimming pool that was constructed so that it lies across the boundary between the land acquired in 1929 and that acquired in 1943.

Cushman’s mother also owned a large piece acquired as several parcels which consisted of several acres lying northerly of the parcel on which the house was situated. This land was distributed by the mother’s estate to Cushman and her two sisters, each taking an undivided one-third, and described in the certificate of distribution as containing thirteen acres, more or less. On September 2, 1939, Cushman and her two sisters conveyed 7.45 acres more or less to Bridgeport Hydraulic Company. On September 9, 1939, each of the two sisters conveyed her interest in the remaining portion of this property to Cushman, describing the parcel in their deed as containing three and one-half acres, more or less.

The northerly parcel was heavily wooded and there were stone walls separating the northerly and southerly pieces although there were gaps in the walls. A surveyor for the plaintiffs traced the history of the acquisition of the property by Cushman’s parents and concluded that there were five tracts which could be identified. Cushman mortgaged her property in 1951 and in the mortgage deed described two tracts, the first being the parcels obtained from her parents and the second being the small triangular piece. The property was taxed as one piece, but it was customary in Red-ding to consolidate tracts owned by a single owner and to tax them as one piece.

Zoning regulations were adopted in Redding and became effective in 1950. Subdivision regulations were adopted and became effective in 1957.

In 1984, a map prepared for the estate of Joy Paine Cushman was filed. This map showed the total area of the property which had been owned by Cushman to be 8.490 acres. It showed the parcel acquired by Cushman from her parents, with the addition of the small triangular piece, as containing 4.208 acres. It showed the northerly parcel as divided into two lots, the westerly lot containing 2.015 acres and the easterly lot containing 2.267 acres, a total acreage for the northerly parcel of 4.282 acres. Both of those lots were conveyed by the estate, as was the southerly parcel. The Pistones acquired the westerly lot containing 2.015 acres. It is now known as 1 Mark Twain Lane and is the lot for which the zoning permit which is the subject of this appeal was obtained.

The plaintiffs claimed that all of the property that had been owned by Cushman had been merged by use and intent into one parcel, and that the 1984 map that showed three lots was an unapproved subdivision. The board concluded that there had not been a merger and that the estate had not created a subdivision by showing three lots on the 1984 map. The trial court, after considering the transcript of the hearing and the same exhibits that had been submitted to the board, concluded that there were five lots, four of which had merged to become one parcel, that the estate had divided the property into three lots, that it was contrary to the zoning regulations and state law to have done so, and that the board had acted illegally in not revoking the zoning permit.

An owner of contiguous parcels of land may merge those parcels to form one tract if he desires to do so. An intent on the part of the owner to do so may be inferred from his conduct with respect to the land and the use which he makes of it. That is not to say that he must be deemed to have done so on the facts of this case. Intent is a question of fact. Hoagland v. Zoning Board of Appeals, 1 Conn. App. 285, 290, 471 A.2d 655 (1984).

The plaintiffs have cited no authority, nor have we been able to find any, for the proposition that an owner must be deemed to have merged contiguous lots simply because the town taxes his land as one tract and he does not take any action physically to demonstrate that he desires to retain it as separate lots. The one exception we have found where merger may occur by operation of law is that found in some zoning regulations which may require, either expressly or implicitly, that under certain conditions a nonconforming lot merges with contiguous land owned by the same owner. See Neumann v. Zoning Board of Appeals, 14 Conn. App. 55, 60, 539 A.2d 614, cert. denied, 208 Conn. 806, 545 A.2d 1103 (1988); Torsiello v. Zoning Board of Appeals, 3 Conn. App. 47, 48 n.2, 484 A.2d 483 (1984); but see Schultz v. Zoning Board of Appeals, 144 Conn. 332, 338, 130 A.2d 789 (1952). This is an understandable requirement because it furthers the general zoning purpose of eliminating nonconforming lots. No such regulation, however, has been brought to our attention in this case.

Courts must not substitute their judgment for that of the zoning board and must not disturb decisions of local boards as long as honest judgment has been reasonably and fairly exercised after a full hearing. Tor-siello v. Zoning Board of Appeals, supra, 49. Where the board has stated the reasons for its action, a reviewing court may only determine whether the reasons given are supported by the record and are pertinent to the decision. Id., 50.

When the plaintiffs appealed to the board and challenged the zoning permit that had been issued, it became the duty of the board to apply the regulations to the facts and to determine whether, on the facts of the case, the regulations required that a copy of a subdivision approval be submitted with the application. See Lawrence v. Zoning Board of Appeals, 158 Conn. 509, 513, 264 A.2d 552 (1969).

The board decided that the northerly and southerly Cushman parcels had not been merged and that subdivision approval was not required. It voted unanimously to deny the plaintiffs’ application to rescind the zoning permit. Contiguous land all owned by the same person does not necessarily constitute a single lot. Schultz v. Zoning Board of Appeals, supra, 338.

Zoning boards of appeal are entrusted with the function of deciding, within prescribed limits and consistent with the exercise of a legal discretion, whether a regulation applies to a given situation, and the manner of its application. Connecticut Sand & Stone Corporation v. Zoning Board of Appeals, 150 Conn. 439, 442, 190 A.2d 594 (1963). In discharging this responsibility, a board is endowed with a liberal discretion, and its action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or illegal. Id.

Upon the record, we cannot say that the board acted unreasonably, arbitrarily or illegally in concluding that the Pistone permit should not be revoked. The trial court erred by substituting its judgment for that of the board regarding whether a subdivision approval was required, and by deciding that a merger had occurred in the absence of an applicable zoning regulation regarding such merger.

Our decision makes it unnecessary to consider the issues raised by the plaintiffs’ appeal.

There is error on the defendants’ appeals, the judgment is set aside and the case is remanded to the trial court with direction to dismiss the appeal as to the plaintiff Louis Molic on its merits, and to dismiss the appeal as to the plaintiff Robert Natkin for lack of aggrievement. The plaintiffs’ appeal is dismissed.

In this opinion the other judges concurred.

       Another plaintiff, Robert Natkin, did not allege statutory aggrievement. After an evidentiary hearing, the trial court found that Molic was an aggrieved party under General Statutes § 8-8. Natkin was not present to testify at this hearing, however, and the court was unable to find that he was aggrieved under either the statute or the classical formulation. In its judgment, the court stated that it found for the plaintiffs Molic and Nat-kin. It is clear that the reference in the judgment to Natkin is merely an oversight by the clerk, and that the judgment should be corrected to reflect that the appeal is dismissed as to Natkin for lack of aggrievement.

       Zoning Regulations of the Town of Redding § 6.2 provides in pertinent part: “Application for a zoning permit shall consist of:
      “(a) Application form and fee, as prescribed by the Zoning Commission.
      “(b) One copy of the following, where applicable:
      -site plan approved by Zoning commission (Sections 5.1, 5.2);
      -subdivision plan approved by Planning Commission . ”

       General Statutes § 8-18 provides in pertinent part: “ ‘[Subdivision’ means the division of a tract or parcel of land into three or more parts or lots made subsequent to the adoption of subdivision regulations by the commission, for the purpose, whether immediate or future, of sale or building development expressly excluding development for municipal, conservation or agricultural purposes, and includes resubdivision . . . .”


author: Daly, J.

text:
    Joyce R. Breen v. Thomas Breen, Jr.
    (6354)
    Spallone, Daly and Nokcott, Js.

      Argued January 17
    decision released April 18, 1989

      Lloyd Frauenglass, for the appellant (plaintiff).

      J. Patrick Dwyer, with whom, on the brief, was Timothy J. Fitzgerald, for the appellee (defendant).
   Daly, J.

In this appeal from the judgment dissolving her marriage, the plaintiff claims that the trial court erred (1) in considering her failure to attempt reconciliation when it rendered its financial orders, (2) in failing to continue the hearing pending the arrival of two of her witnesses, (3) in considering Public Acts, 1987, No. 87-104, in its decision, (4) in denying her motions to open the judgment and for a new trial, (5) in considering the future college costs of adult children to be paid by the defendant, (6) in making the financial award pertaining to the division of jointly held real estate, and (7) in making certain evidentiary rulings. We find no error.

The trial court found that the parties were married on April 11,1964. There are three children of the marriage, only one of whom was a minor at the time of the dissolution. The court rendered final judgment on June 25, 1987, dissolving the marriage of the parties on the basis of an irretrievable breakdown. The court found that the plaintiffs failure to attempt reconciliation was a major factor in causing the breakdown of the marriage. It awarded custody of the minor child to the plaintiff, with reasonable rights of visitation to the defendant.

The court ordered the defendant to pay $100 per week, until September 1, 1988, for the support of the minor child. The defendant was also ordered to pay an additional $100 per week as rehabilitative alimony. The alimony award, which was scheduled to cease on September 1, 1988, was to be nonmodifiable in duration and amount. In making the alimony award, the .court considered the plaintiffs salary schedule for the following year and the defendant’s current salary plus a potential annual raise. The court also entered various other awards pertaining to an inheritance, health and life insurance, bank accounts, retirement funds, automobiles, and furnishings. Finally, the court ordered the plaintiff to quitclaim her interest in the marital home to the defendant, who would in turn execute a mortgage note and deed in favor of the plaintiff in the amount of $60,000 with interest at 8 percent per annum.

The plaintiff first claims that the court erred in considering behavior irrelevant to the criteria contained in General Statutes §§ 46b-81 and 46b-82 in making its financial awards. The behavior that the plaintiff considers irrelevant to the statutory criteria is her failure to attempt reconciliation. “ ‘As a preliminary matter, we note that a trial court has broad discretion in domestic relations cases. Leo v. Leo, 197 Conn. 1, 4, 495 A.2d 704 (1985); Flynn v. Flynn, 7 Conn. App. 745, 746, 510 A.2d 1005 (1986). . . .’ Little v. Little, 14 Conn. App. 195, 196, 540 A.2d 102 (1988).” Pasqua v. Pasqua, 16 Conn. App. 278, 279, 547 A.2d 556 (1988). Because of the opportunity for the trial court to observe the parties and the evidence, great weight is given to its judgment with respect to the financial awards. Holley v. Holley, 194 Conn. 25, 29, 478 A.2d 1000 (1984). The dispositive issue is whether the trial court abused its discretion or whether it could have reasonably concluded as it did. Timm v. Timm, 195 Conn. 202, 207, 487 A.2d 191 (1985); Pasqua v. Pasqua, supra.

Under § 46b-82, the court is entitled to consider, inter alia, the cause of the dissolution in making its alimony award. “When ‘the parties choose to litigate the issues of alimony or division of property the causes of the dissolution must be considered by the court.’ ” Pavel v. Pavel, 4 Conn. App. 575, 576, 495 A.2d 1113, cert. denied, 197 Conn. 809, 499 A.2d 60 (1985). Our review of the trial court’s decision indicates that the court weighed all of the factors enumerated in § 46b-82 in reaching its determination. “We cannot, as an appellate court, vary the weight which the court placed upon such factors. Carpenter v. Carpenter, [188 Conn. 736,] 742, [453 A.2d 1151 (1982)].” Tirado v. Tirado, 7 Conn. App. 41, 43, 507 A.2d 470 (1986). We conclude that the trial court’s decision regarding alimony was reasonable and supported by the evidence presented. See Tirado v. Tirado, supra.

The plaintiff next claims that the trial court erred in failing to continue the hearing because two of her witnesses had not arrived. The matter of a continuance is traditionally within the discretion of the trial court. Ridgeway v. Ridgeway, 180 Conn. 533, 538, 429 A.2d 801 (1980). This court must make every reasonable presumption in favor of the proper exercise of the trial court’s discretion. Id.; B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 35. Our review of the record reveals that the court did not abuse its discretion in refusing to continue the hearing to await the arrival of the plaintiff’s tardy witnesses.

In her next claim, the plaintiff argues that the trial court erroneously considered Public Acts 1987, No. 87-104 in making its financial orders. We agree with the plaintiff but hold that the error was harmless.

In its oral memorandum of decision and articulation, the court indicated that it had considered Public Acts 1987, No. 87-104 in making the alimony award. Public Acts 1987, No. 87-104 was enacted to amend General Statutes § 46b-86, which relates to the modification of alimony and support. The act did not become effective, however, until October 1,1987, nearly three and one-half months after the trial court’s decision. It was error, therefore, for the court to consider the act in making its award. Any reference to Public Acts 1987, No. 87-104, however, was harmless in view of the purpose of the act, which merely eliminated the requirement in § 46b-86 that modification of alimony or support be based upon uncontemplated changes of circumstances. Darak v. Darak, 210 Conn. 462, 470, 556 A.2d 145 (1989). The act did not curtail the court’s power to preclude modification altogether pursuant to § 46b-86. Provisions that preclude modification tend to be disfavored. Eldridge v. Eldridge, 4 Conn. App. 489, 493, 495 A.2d 283 (1985). When a provision in a divorce decree that precludes or restricts a later court’s power to modify financial orders is clear and unambiguous, however, that provision will be upheld. Id., 493-94. The trial court in the present ease acted within its existing power when it precluded modification of the alimony award; accordingly, any reference to Public Acts 1987, No. 87-104 was harmless.

The plaintiff next claims that the trial court erred in denying her amended motions to open the judgment; General Statutes § 52-212a; and for a new trial. General Statutes § 52-270. She contends that both of the motions should have been granted because of the discovery of new evidence to be presented to the court. We disagree.

“It is well recognized that ‘[t]he opening ... of a judgment ... is at the legal discretion of the court. Tyler v. Aspinwall, 73 Conn. 493, 47 Atl. 755 [1901]. . . . [I]t “is not to be granted readily, nor without strong reasons” .... Wildman v. Wildman, 72 Conn. 262, 270, 44 Atl. 244 [1899].’ McCulloch v. Pittsburgh Plate Glass Co., 107 Conn. 164, 167, 140 A. 114 (1927). 'The motion should not be granted merely to allow the court to reconsider its decisions on the facts and its exercise of discretion. The motion should indicate that the moving party is prepared to introduce some new matter not before the court at the time of its original decision.’ 2 Stephenson, Conn. Civ. Proc. (2d Ed.) § 207, p. 863; see Felton v. Felton, 123 Conn. 564, 569, 196 A. 791 (1938).” F & W Welding Services, Inc. v. Pen-Smith, Inc., 38 Conn. Sup. 455, 458-59, 451 A.2d 286 (1982). The “newly discovered evidence” that the plaintiff claims was available was, in reality, the testimony of her two tardy witnesses. We can find no abuse of discretion in denying the plaintiff’s motion to open.

Similarly, we find no abuse of discretion in the trial court’s denial of the motion for a new trial. “The rules for granting a new trial on the ground of newly discovered evidence are well established. The evidence must, in fact, be newly discovered, material to the issue on new trial, such that it could not have been discovered and produced on the former trial by the exercise of due diligence, not merely cumulative and likely to produce a different result. Turner v. Scanlon, 146 Conn. 149, 163, 148 A.2d 334 [1959].” Pass v. Pass, 152 Conn. 508, 511-12, 208 A.2d 753 (1965). Because the plaintiff’s alleged “newly discovered evidence” was not newly discovered, the court did not err in denying the motion.

The plaintiff’s next claim of error concerns the trial court’s consideration of the future college costs the defendant had agreed to pay. She claims that, by speculating as to the future expenses that the defendant might incur on behalf of his adult children, the court diluted the available assets from which the defendant could pay her alimony.

In its oral memorandum of decision, the court stated: “I also considered the fact that the defendant has in the past paid the bulk of the cost of the college education of his children, particularly Tom, and I believe that he will use his best efforts in the future to do that. He [has] offered several times to agree to that in writing and I indicated that I would not accept that unless both parties agreed and I have never received anything in writing from the mother so I will not even consider that order.”

“With regard to . . . [an] award of alimony, we note that we do not review any single order without examining it in the context of all of the other orders as well as the assets and liabilities of both parties. Wolk v. Wolk, 191 Conn. 328, 333, 464 A.2d 780 (1983). Thus, we may properly consider the liabilities of the [defendant], including the fact that at the time of trial, he was paying for the college education of one of the children. See id., 333.” Eversman v. Eversman, 4 Conn. App. 611, 616, 496 A.2d 210, cert. denied, 197 Conn. 805, 499 A.2d 57 (1985). We conclude that the court did not err in considering the fact that the defendant was paying the college expenses of one child and intended to continue to do so.

The plaintiff next claims that the court erred in the financial award pertaining to the division of the jointly held realty. She claims that the value of the realty was more than the 50 percent amount, or $60,000, awarded to her.

The court heard the testimony of the plaintiffs expert witness that the fair market value of the home was $180,000. The court also had before it the defendant’s financial affidavit, which valued the home at $150,000. This value was based upon an appraisal conducted eight months prior to the trial.

The purpose of expert testimony is to aid the trier of fact in arriving at its own conclusion. Bennett v. New Haven Redevelopment Agency, 148 Conn. 513, 516, 172 A.2d 612 (1961). The trier’s conclusion is reached by weighing the expert opinion in the light of all the circumstances in evidence as well as the trier’s own general knowledge of the elements establishing value. Id. The acceptance or rejection of the opinion of an expert witness is within the province of the trier of fact; accordingly, the trier’s determination is accorded great deference by this court. Johnson v. Healy, 183 Conn. 514, 515-16, 470 A.2d 765 (1981); B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 118c, p. 1150.

The trial court, as the trier of fact, could reasonably have determined in light of the evidence that the value of the jointly held realty was $160,000. When the first mortgage balance of $40,000 is subtracted from that value, a balance of $120,000 is left to be divided on a 50 percent basis.

The plaintiff’s last claim of error concerns certain evidentiary rulings made by the court. Meaningful appellate review of these claims, however, is precluded by the plaintiff’s failure to comply with Practice Book §§ 288 and 4065 (d) (3).

There is no error.

In this opinion the other judges concurred.

       The plaintiff has raised two separate issues under this claim. Because of the degree to which these issues are so intertwined, however, we consider them together.

       The plaintiff cites General Statutes § 46b-81, which pertains to assignment of property and transfer of title, but in her brief discusses only the court’s alimony award. Because the plaintiff has failed to provide us with a properly briefed issue, we decline to address the propriety of the trial court’s orders on property division. Practice Book § 4065 (d) (3).

       General Statutes § 46b-82 provides: “At the time of entering the decree, the superior court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to section 46b-81. The order may direct that security be given therefor on such terms as the court may deem desirable, including an order to either party to contract with a third party for periodic payments or payments contingent on a life to the other party. 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, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent’s securing employment.”

       Public Acts 1987, No. 87-104 provided: “an act concerning elimination OF ‘UNCONTEMPLATED’ REQUIREMENT FOR MODIFICATION OF ALIMONY AND SUPPORT.
      “Subsection (a) qf section 46b-86 of the general statutes is repealed and the following is substituted in lieu thereof:
      “(a) Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support or an order for alimony or support pendente lite may at any time therafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party, after the DATE OF JUDGMENT, MODIFICATION MAY BE MADE UPON, A SHOWING OF SUCH SUBSTANTIAL CHANGE OF CIRCUMSTANCES, WHETHER OR NOT SUCH CHANGE OF CIRCUMSTANCES WAS CONTEMPLATED AT THE TIME OF DISSOLUTION. BY WRITTEN AGREEMENT, STIPULATION OR BY DECISION OF THE COURT, THOSE ITEMS OR CIRCUMSTANCES THAT WERE CONTEMPLATED AND ARE NOT TO BE CHANGED MAY BE SPECIFIED IN THE WRITTEN AGREEMENT, stipulation OR decision of the court. This section shall not apply to assignments under section 46b-81 or to any assignment of the estate or a portion thereof of one party to the other party under prior law.”