author: DUPONT, J.

text:
    STATE OF CONNECTICUT v. THOMAS ROGERS
    (AC 17616)
    O’Connell, C. J., and Lavery and Dupont, Js.
    Argued May 26
    officially released September 22, 1998

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

      Judith Rossi, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Elpedio N. Vitale, senior assistant state’s attorney, for the appellee (state).
   Opinion

DUPONT, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes §§ 53a-8 and 53a-54a, conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a, attempt to commit murder in violation of General Statutes §§ 53a-8, 53a-49 (a) (2) and 53a-54a, criminal possession of a firearm in violation of General Statutes (Rev. to 1993) § 53a-217 and illegal possession of a weapon in a motor vehicle in violation of General Statutes § 29-38.

On appeal, the defendant claims that (1) there was insufficient evidence to support his conviction of criminal possession of a firearm, (2) there was insufficient evidence to support his conviction of illegal possession of a weapon in a motor vehicle, (3) he was denied his constitutional rights to a fair trial and due process of law, and his right not to testily due to improper remarks made by the prosecutor during his closing argument, (4) he was denied his right to due process of law when the trial court’s instructions to the jury on adoptive admissions improperly delegated to the jury a factual predicate that was for the court’s determination and (5) the trial court improperly instructed the jury regarding the correlation between the intent required for the count of murder and the intent for the count of attempted murder. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On November 20, 1994, at approximately 2:30 p.m., Monique Little, Ciystal Gora and Antonio West were congregated on the porch of a house at 69 County Street in New Haven. The three teenagers were talking with William Brockenberry and Kevin Gallman, who were standing near the porch. A silver-gray Mercury station wagon drove down County Street and stopped near number 69, with the passenger side of the vehicle closest to the house. Several of the occupants of the vehicle were wearing masks, hoods and black clothing. Numerous shots were fired from the vehicle toward the group at 69 County Street. Both Little and Gora testified that the front seat passenger displayed a gun, and West testified that he saw “fire” coming from the passenger seat area. None of the youths at 69 County Street could identify any of the occupants of the vehicle.

After the shooting stopped, Little, Gora and West found Brockenberry lying in the backyard, fatally wounded, bleeding from his mouth and side. Gallman’s arm had been grazed by a bullet as he ran from the gunfire. In addition to Little, Gora, West, Brockenberry and Gallman, the incident was witnessed by National Guard member Cheryl Pilgrim, who was looking out a second story window in the Goffe Street Armory located across the street from 69 County Street. Pilgrim told the police that she saw the station wagon pull up, she saw several people in the vehicle, although she could not see their faces, and that she observed shots coming from what she believed to be the passenger side of the vehicle. Pilgrim further told police that after the initial round of shots stopped, she saw the passenger in the right backseat get out of the vehicle and look around the scene. She stated that he was wearing camouflage clothing and had dreadlocks. After the passenger got back into the vehicle, Pilgrim heard several more shots fired and the vehicle then drove off.

The police recovered various items of ballistics evidence from the scene, including fourteen shell casings and bullet fragments. The ten identifiable shell casings were all .45 caliber and had been fired from two different .45 caliber firearms. The subsequent police investigation into the shooting uncovered the following additional evidence.

On November 19, 1994, the day before the shooting, three men, including Brockenberry’s friend, Dana Kelly, and the defendant’s brother, Anthony Rogers, had been injured in a shooting on Whalley Avenue in New Haven. Also on November 19,1994, Isaac Council, a good friend of the defendant, was with his girlfriend, Safira McLeod, and he told her that the defendant’s brother had been shot. On November 20, 1994, Council and Larry McCo-wen picked up McLeod in a rented Mercury Sable. Early in the afternoon of November 20, 1994, Council, who was driving, took a gun from under the driver’s seat of the car and placed it on his lap. Council then drove down Whalley Avenue and turned onto County Street where he drove slowly past a house with several people in front. Council stated to McCowen, “There goes those guys. There goes those guys.”

Council then drove the rented car to Ashmun Street, approximately one minute’s drive from County Street, to the apartment of the defendant’s girlfriend, Dana Edwards. Council parked the car on Ashmun Street, and he and McCowen conferred with the defendant in Edwards’ living room while McLeod and Edwards sat in the adjacent kitchen. The conversation between the three men in the living room involved “the guys on County Street.”

Shortly thereafter, the three men left Edwards’ apartment through the front door. Council was wearing a black coat with a hood, McCowen was wearing a camouflage army coat and the defendant was wearing a black coat with a hood. Council had a gun with him. Approximately ten minutes later, the three men returned to Edwards’ apartment, entering through the back door at a fast pace. The men went directly into the living room where they talked and laughed about a shooting where someone was hit. Both Council and the defendant had guns with them at that time, both of which were black and had barrels less than twelve inches in length.

Council then gave the key to the rented car to McLeod, and directed McLeod and Edwards to take the car to the car wash to have it cleaned and vacuumed. McLeod and Edwards took the car to Four Brothers Car Wash in West Haven. While vacuuming the interior of the car, Edwards found a shell casing on the passenger side and showed it to McLeod before vacuuming it.

After leaving the car wash, McLeod and Edwards returned to the apartment where they eventually had a discussion with Council and the defendant in which McLeod learned that someone had died in the shooting. Council had formulated an alibi for himself whereby McLeod agreed to say that he was with her the entire day. Later that day, Council received a telephone call from the defendant at McLeod’s apartment during which they discussed the fact that the police were looking for three to four black males with masks and for a particular type of car in connection with the County Street shooting.

I

The defendant first challenges the sufficiency of the evidence to support his conviction for criminal possession of a firearm. Specifically, the defendant claims that the state failed to prove beyond a reasonable doubt that (1) he possessed a firearm “near the area of 69 County Street” on November 20, 1994, at 2:30 p.m. as was charged in the information, (2) the firearm was operable and (3) the firearm had a barrel less than twelve inches in length. The defendant acknowledges that his trial counsel did not move for a judgment of acquittal of this crime at the end of the state’s case or at the close of all of the evidence, and he therefore seeks review of this claim pursuant to the principles of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Golding review is warranted since “[un]preserved sufficiency claims are reviewable on appeal because such claims implicate a defendant’s federal constitutional right not to be convicted of a crime upon insufficient proof. See State v. Adams, 225 Conn. 270, 275-76 n.3, 623 A.2d 42 (1993).” State v. Laws, 37 Conn. App. 276, 281, 655 A.2d 1131, cert. denied, 234 Conn. 907, 659 A.2d 1210 (1995).

“When reviewing sufficiency of the evidence claims, we impose a two part analysis. First, we construe the evidence in the light most favorable to sustaining the verdict. . . . Second, we determine whether, from that evidence and all the reasonable inferences which it yields, a [trier of fact] could reasonably have concluded that the defendant was guilty beyond a reasonable doubt. . . . State v. Rivera, 32 Conn. App. 193, 200-201, 628 A.2d 996, cert. denied, 227 Conn. 920, 632 A.2d 698 (1993).” (Internal quotation marks omitted.) State v. Laws, supra, 37 Conn. App. 281. “[I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence.” State v. Sivri, 231 Conn. 115, 646 A.2d 169 (1994). “On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.” Id., 134.

A

First the defendant claims that the state failed to prove, as alleged in the information, that he possessed a firearm “near the area of 69 County Street.” The testimony in the case revealed that the defendant was in possession of a gun in an apartment on Ashmun Street, several blocks away from County Street, just after the shooting. The evidence also revealed that the defendant was with Council and McCowen in an apartment just prior to the shooting on County Street, that the three men had discussed the people gathered on County Street just prior to leaving the apartment together, and that the men were gone only ten minutes when they returned together, talking and laughing about the shooting. The evidence further revealed that the defendant and Council wore black hooded jackets on the day of the incident, and McCowen wore a hooded camouflage jacket. Eyewitnesses to the shooting saw more than two people in the vehicle, two of whom sat in the front and wore black hooded jackets, and a third who sat in the rear seat and wore a camouflage jacket. The evidence also revealed that Council was the individual who rented the Mercury, who had the key to the car when it was given to McLeod to be taken to the car wash and who had been driving the car earlier in the day.

The jury reasonably could infer from this evidence that the defendant left the Ashmun Street apartment with Council and McCowen, and rode with them to County Street, that Council was the driver of the car during the shooting, that McCowen was the rear passenger and, by process of elimination, that the defendant was the individual in the front passenger seat who was observed firing shots from a gun, and that the three returned shortly after the shooting to the Ashmun Street apartment talking and laughing about the shooting. In the process of reviewing the sufficiency of the evidence, “it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.” (Internal quotation marks omitted.) State v. Salz, 226 Conn. 20, 31, 627 A.2d 862 (1993). Accordingly, we conclude that the jury reasonably could have determined from the evidence presented that the defendant was guilty beyond a reasonable doubt.

B

The defendant also claims that even if the state sufficiently proved that he possessed a firearm, it failed to prove both that the firearm was operable and that the barrel on the firearm possessed by the defendant was less than twelve inches in length. One of the necessary elements that the state must prove for a conviction for criminal possession of a firearm is that the firearm that the defendant is alleged to have possessed is operable. State v. Bradley, 39 Conn. App. 82, 90, 663 A.2d 1100 (1995), cert. denied, 236 Conn. 901, 670 A.2d 322 (1996). “The operability of a pistol or firearm can be proved by either direct or circumstantial evidence.” State v. Hopes, 26 Conn. App. 367, 376, 602 A.2d 23, cert. denied, 221 Conn. 915, 603 A.2d 405 (1992). Since the jury reasonably could have determined that the defendant was the individual in the rented Mercury who fired shots from the front passenger seat, the element of operability of the gun was satisfied.

The defendant claims that there was insufficient evidence regarding the length of the barrel of his firearm. McLeod testified, however, that she saw the defendant holding a gun at the Ashmun Street apartment shortly after the shooting, and that the gun had a barrel length of less than twelve inches. The jury reasonably could have credited this undisputed testimony. See State v. Crosby, 36 Conn. App. 805, 820-21, 654 A.2d 371, cert. denied, 232 Conn. 921, 656 A.2d 669 (1995) (state not required to produce direct numerical evidence of length of gun barrel to support conviction under § 53a-217); see State v. Williams, 231 Conn. 235, 251-52, 645 A.2d 999 (1994).

II

The defendant next challenges the sufficiency of the evidence for the charge of illegal possession of a weapon in a motor vehicle in violation of § 29-38. Specifically, the defendant claims that the state failed to prove beyond a reasonable doubt that (1) he was in the rented Mercury at the time of the shooting, (2) he possessed a gun in the vehicle or knew that anyone else in the vehicle had a gun and (3) the gun that he possessed subsequent to the shooting, which McLeod testified was less than twelve inches in length, was the same gun that he possessed in the vehicle. Since the defendant did not file a motion for judgment of acquittal on this issue, we review it pursuant to State v. Golding, supra, 213 Conn. 239-40.

As set forth in part I of this opinion, in view of the evidence and the reasonable inferences drawn therefrom, the jury reasonably could have concluded that the defendant was the individual firing a gun from the passenger side of the rented Mercury. The defendant claims, however, that the state failed to connect the gun that he possessed shortly after the shooting at the Ashmun Street apartment with the gun used to fire shots on County Street.

The defendant concedes that he was at the Ashmun Street apartment with Council and McCowen shortly before the shooting. Further, the testimony reflected that the defendant was gone from the Ashmun Street apartment with Council and McCowen for only ten minutes before returning to the apartment where he was observed talking and laughing about the shooting, and in possession of a gun with a barrel less than twelve inches in length. The time frame of the incidents reasonably supports the inference that the gun that the defendant had in his possession when he entered the Ashmun Street apartment less than ten minutes after the shooting was the gun that the defendant had with him in the vehicle during the shooting. We conclude that the evidence was sufficient to convict the defendant of a violation of § 29-38.

Ill

The defendant next claims that he was denied his constitutional rights to a fair trial, due process of law and his right not to testify due to improper remarks made by the prosecutor during his closing argument to the jury. The defendant did not object to any of the prosecutor’s remarks at trial, nor did he file a motion for a mistrial and, accordingly, seeks review of this unpreserved claim pursuant to St,ate v. Golding, supra, 213 Conn. 239-40. In the alternative, the defendant seeks to invoke this court’s supervisory authority over the administration of justice to order a new trial. See State v. Fullwood, 194 Conn. 573, 584, 484 A.2d 435 (1984); State v. Pouncey, 40 Conn. App. 624, 639-40, 673 A.2d 547 (1996) (Spear, J., dissenting), aff'd, 241 Conn. 802, 699 A.2d 901 (1997).

“We will not afford Golding review to [unpreserved] claims of prosecutorial misconduct where the record does not disclose a pattern of misconduct pervasive throughout the trial or conduct that was so blatantly egregious that it infringed on the defendant’s right to a fair trial.” (Internal quotation marks omitted.) State v. Williams, supra, 231 Conn. 246. “In determining whether a prosecutor’s conduct was so egregious as to deny a defendant a fair trial, we note that some leeway must be afforded to the advocates in offering arguments to the jury in final argument. [I]n addressing the jury, [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . State v. Haggood, 36 Conn. App. 753, 772, 653 A.2d 216 [cert. denied, 233 Conn. 904, 657 A.2d 644] (1995), quoting State v. Williams, supra, [246].” State v. Hansen, 39 Conn. App. 384, 395, 666 A.2d 421, cert. denied, 235 Conn. 928, 667 A.2d 554 (1995).

The defendant claims that during the prosecutor’s rebuttal remarks, the prosecutor made several improper personal attacks on the defendant, appealed to the emotions of the jurors, commented on the defendant’s failure to testify and made misstatements of

the law regarding the presumption of innocence. Our review of the entire transcript of the trial and the arguments of counsel, however, leads us to conclude that the defendant has not proved the existence of a pattern of misconduct such that the fairness of the entire trial was compromised. The acts of claimed misconduct consist, at most, of isolated instances that occurred in the course of legitimate rebuttal arguments and do not disclose a pattern repeated throughout the trial or conduct that is blatantly egregious. See State v. Tweedy, 219 Conn. 489, 509, 594 A.2d 906 (1991). The defendant cannot prevail because he was not deprived of a fair trial. Given the lack of deliberate prosecutorial misconduct or otherwise egregious or unduly offensive behavior, we also decline to exercise our supervisory powers over the administration of justice to order a new trial. See State v. Pouncey, 241 Conn. 802, 808-809, 699 A.2d 901 (1997) (court has supervisory power to order new trial to deter prosecutorial misconduct that is “unduly offensive to the maintenance of a sound judicial process”); State v. Sherman, 38 Conn. App. 371, 384, 662 A.2d 767, cert. denied, 235 Conn. 905, 665 A.2d 905 (1995) (same).

IV

The defendant next claims that he was denied his right to due process of law because the trial court’s instructions to the jury on “adoptive admissions” permitted the jury to make a preliminary factual determination regarding whether the evidence supported an adoptive admission by silence. The defendant claims that the preliminary factual determination should have been made by the court. The defendant concedes that he neither filed a request to charge nor excepted to the instruction that he now challenges and, therefore, he seeks review of his unpreserved claim under State v. Golding, supra, 213 Conn. 239-40.

We will review the defendant’s claim, as the record is adequate for review and the alleged violation is of constitutional magnitude because it involves his due process right to an adequately instructed jury. See State v. Schiappa, 44 Conn. App. 731, 739-40, 692 A.2d 820, cert. granted, 241 Conn. 908, 695 A.2d 541 (1997). We conclude, however, that the defendant has failed to show that the alleged violation clearly exists and clearly deprived him of a fair trial as to the convictions of murder, conspiracy to commit murder and attempt to commit murder.

“A challenge to a jury instruction requires a review to determine whether it is reasonably possible that a jury was misled; State v. Ortiz, 217 Conn. 648, 667, 588 A.2d 127 (1991); and the instruction is to be read as a whole to judge its total effect rather than its individual parts. State v. Leroy, 232 Conn. 1, 8, 653 A.2d 161 (1995).” State v. Schiappa, supra, 44 Conn. App. 740.

The state presented evidence through McLeod that just after the shooting, the defendant, Council and McCowen returned to the Ashmun Street apartment and had a conversation in the living room. McLeod testified that although she could not hear all of the specifics of the conversation from the kitchen where she was during the conversation, she did hear talk about a shooting, people running and someone being hit. The defendant and the others were laughing. She heard the defendant’s voice but she testified that she could not tell which of the three men said any of the things of which she testified. She also testified that she did not hear the defendant denying participation or disputing what the other two men were saying.

The state filed a written request to charge on adoptive admissions based on this evidence. The defendant did not object. The defendant did, however, object to the introduction of McLeod’s testimony during the trial on the ground that it was hearsay. The state did not claim the testimony as an exception to the hearsay rule, namely, an adoptive admission. The trial court overruled the defendant’s objection without giving any rationale for its ruling.

The defendant relies on State v. Schiappa, supra, 44 Conn. App. 740, in seeking a new trial. We held in Schiappa that the trial court improperly permitted the jury to make a preliminary factual determination of the content of a statement claimed as an adoptive admission of the defendant by the state, and improperly allowed the jury to make a similar determination as to whether the defendant acquiesced in the statement by silence or answer, which determinations should have been preliminarily decided by the trial court. Because the court’s instructions to the jury were improper in this regard, we concluded that the defendant’s due process right to an adequately instructed jury was violated and, therefore, ordered a new trial as to the defendant’s conviction of manslaughter in the first degree. Id., 741-43.

The statement at issue in Schiappa required a preliminary factual determination of whether another participant said, in the defendant’s presence, “I” (referring to himself only) or “we” (referring to both defendants) “killed the victim.” The witness to whom the statement was made testified at trial that the other defendant used the word “I,” but in a prior statement the witness had said that he was not sure if the other defendant had said “I” or “we.” Id., 740-41.

Schiappa is factually different from the present case because in this case there is no particular statement that is attributed to a particular defendant, there is no dispute as to the exact wording of any statement and because none of the statements testified to by McLeod implicates the defendant as the shooter of the murder victim, although the statements arguably place the defendant at the crime scene. Also, the statements do not implicate the defendant in a conspiracy to commit murder because none of the statements relates to an agreement to engage in conduct constituting a crime followed by an overt act in furtherance of the conspiracy. See State v. Lynch, 21 Conn. App. 386, 392, 574 A.2d 230, cert. denied, 216 Conn. 806, 580 A.2d 63 (1990). The Schiappa statement is directly related to the commission of the crime, manslaughter, of which the defendant in that case was found guilty, as opposed to the statements here, which do not relate to the commission of the crimes of murder, conspiracy to commit murder or attempt to commit murder. In this sense, the statements testified to by McLeod were not “accusatory in nature” in that they did not relate directly to an element of the murder related crimes with which the defendant was charged. See State v. Estrada, 26 Conn. App. 641, 652, 603 A.2d 1179, cert. denied, 221 Conn. 923, 608 A.2d 688 (1992) (court must first address question of whether “statement was sufficiently accusatory in import to call naturally for a response from the defendant”); State v. Torrice, 20 Conn. App. 75, 90, 564 A.2d 330, cert. denied, 213 Conn. 809, 568 A.2d 794 (1989) (“ ‘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’ ”).

Many cases discuss the admissibility of adoptive admission statements. To admit a statement into evidence as an adoptive admission, the defendant must be aware of the statement, have had an opportunity to speak and, under circumstances that required a reply, remained silent or affirmatively acquiesced in the statement. See, e.g., Batick v. Seymour, 186 Conn. 632, 642, 443 A.2d 471 (1982); Obermeier v. Nielsen, 158 Conn. 8, 11, 255 A.2d 819 (1969); State v. Lynch, supra, 21 Conn. App. 394-95. Case law indicates that in terms of admissibility into evidence, the trial court must first determine what the statement was and if the defendant adopted it. See State v. Moye, 199 Conn. 389, 393, 507 A.2d 1001 (1986); State v. Lawson, 23 Conn. App. 358, 363, 580 A.2d 87 (1990); State v. Lynch, supra, 391.

Only a handful of cases discuss the consequences of an erroneous jury instruction that it should decide the preliminary questions that our decisions hold are for the court first to decide. The reason for placing this burden on the trial court initially is that the threshold determination involves a question of law. See State v. Savage, 34 Conn. App. 166, 171, 640 A.2d 637, cert. denied, 229 Conn. 922, 642 A.2d 1216 (1994); State v. Lynch, supra, 21 Conn. App. 398; State v. Luca, 19 Conn. App. 668, 672, 563 A.2d 752 (1989). A jury cannot be responsible for making a factual determination that was for the court to make as a matter of law. State v. Luca, supra, 672.

If we had to review only a trial court’s ruling that McLeod’s testimony was properly admissible into evidence as containing adoptive admissions of the defendant, based on case law our conclusion would clearly be that the court’s ruling was correct. Here, the evidence established that the defendant did not disagree with the statements made, the defendant heard the statements and the statements were made in the presence of the defendant and the other men. The evidence was very similar to that in State v. John, 210 Conn. 652, 680, 557 A.2d 93, cert. denied, 493 U.S. 829, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989), and State v. Reddick, 36 Conn. App. 774, 785, 654 A.2d 761, cert. denied, 232 Conn. 922, 656 A.2d 671 (1995), and was properly admitted into evidence. We must, however, determine more than the question of admissibility into evidence. We must decide whether there was instructional error, given our conclusion that the statements were properly admitted into evidence as adoptive admissions.

There are instances in our case law other than adoptive admissions that also require preliminary factual determinations to be made by a trial court rather than a juiy, and such cases provide useful analogies. In State v. Luca, supra, 19 Conn. App. 669-70, it was conceded by the state that the trial court, not the jury, should have decided preliminarily whether the defendant had introduced substantial evidence to show that the defendant was drug-dependent in a prosecution for the sale of cocaine by a person who was not drug-dependent. Because the jury instructions improperly required the juiy to answer that question, the defendant was awarded a new trial as to the charges of sale of cocaine by a person who was not drug-dependent. General Statutes § 21a-278 (b). State v. Luca, supra, 674. Luca also held that if an instructional error has no impact on a conviction because the question the jury was improperly asked to decide did not relate to an element of a crime of which the defendant was convicted, any error would have no effect on the outcome of that conviction and, therefore, that conviction must be upheld. Thus, in Luca, the defendant’s conviction of possession with intent to sell cocaine under General Statutes § 21a-277 (a) was upheld because any question improperly considered by the jury as to drug dependency was irrelevant to that charge.

Although Luca is analogous to the present case in that a preliminary question for the court was given to the jury to decide, it is not determinative of the present case as to the impropriety of the instruction because in Luca the trial court had never made any prior ruling during the trial relating to the defendant’s drug dependency, nor had the trial court had any prior occasion to consider the question. In the present case, the trial court had an occasion to consider the admissibility of the statement as an adoptive admission.

The case of State v. Lynch, supra, 21 Conn. App. 386, is more like the present case. In Lynch, the defendant claimed that the trial court should have made a preliminary ruling that the state had established a prima facie case of conspiracy rather than instruct the juiy that it should determine this question, and instructed it that if the jury found that aprima facie case was established, to consider the statement in question. We held that it was plain error to allow the jury to consider the preliminary question.

Lynch concerned a conviction for conspiracy to commit larceny by extortion. During the trial, the court admitted into evidence an out-of-court statement made by a codefendant in the hearing and presence of the defendant, without first having made an independent preliminary determination as to whether the state had proven a prima facie case of conspiracy and allowed the jury to make that determination when it instructed the jury. The statement was that the only way a certain transaction could get through the town planning and zoning commission of Enfield is to cobroke the commission with the defendant and that the defendant would take care of the codefendant. The defendant, in response, said that he would expect nothing if the deal did not go through. At the close of the state’s case, the defendant moved for a judgment of acquittal, claiming that without the statement, the state had not proved a prima facie case of conspiracy. The court denied the motion.

After holding that the submission to the jury of the preliminary question was plain error, we reviewed the evidence to determine if the trial court, had it considered the question, could have found by a fair preponderance of the evidence that a conspiracy existed, without consideration of the statement. We concluded that the court could not have found the conspiracy to have existed by a fair preponderance of the evidence without the statement. We then went on to determine whether, if the trial court had considered the inculpatory statement as a putative adoptive admission, it would have abused its discretion in failing to admit the statement into evidence as an adoptive admission. The statement to which the defendant had responded in an inculpatory manner had been admitted into evidence over the defendant’s objection, but no claim was made by the state that it was an adoptive admission. As is true in this case, the objection was a general one and the court did not rule on the testimony’s admissibility as an adoptive admission. We held that as a matter of law, the trial court would have had to admit the statement as an adoptive admission. Id., 393. To reach that conclusion, this court undertook a review to consider the question the court should have preliminarily determined before submitting it to the jury. We concluded that the court would have to have found, by a fair preponderance of the evidence, that the statement was made and adopted by the defendant. Since this was so, the question given to the jury pursuant to the court’s instruction was proper because, as a matter of law, the court could not have made any other preliminary determination. Lynch relied on State v. Vessichio, 197 Conn. 644, 654, 500 A.2d 1311 (1985), cert. denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed. 2d 187 (1986), for our appellate authority to review the evidence to determine what the trial court would have had to conclude, as a matter of law, had the preliminary questions been ruled on by the trial court.

We determine that had the trial court in this case considered whether the statements testified to by McLeod were made, and whether, under the circumstances, they were adopted by the defendant, it would have been an abuse of discretion, given the decision in State v. John, supra, 210 Conn. 680, to answer the preliminary questions other than affirmatively and to refuse to admit them into evidence. On the basis of the teachings of Lynch and under the facts of this case, we conclude that the instructions to the jury were not improper.

We further conclude that Schiappa does not apply. Even if the instructions were improper, we would not conclude that the defendant was deprived of due process because the statements had no direct effect on the murder related crimes for which the defendant was convicted. See State v. Luca, supra, 19 Conn. App. 673.

The defendant cannot prevail on his unpreserved claim because he has failed to show that the alleged violation of his due process rights clearly exists and clearly deprived him of a fair trial as to his conviction of murder, conspiracy to commit murder and attempt to commit murder.

V

The defendant finally claims that the trial court improperly instructed the jury regarding the correlation between the intent required for the count of murder and the intent required for the count of attempt to commit murder by failing to inform the jurors that they could find the defendant guilty on one count and not guilty on the other. He claims that the improper instruction was tantamount to a directed verdict of guilty on both charges if the jury found the requisite intent. The defendant failed to preserve this claim at trial and now seeks review under State v. Golding, supra, 213 Conn. 239-40. Since the record is adequate for review and the alleged violation is of constitutional magnitude because it involves his due process right to an adequately instructed jury, we will review this claim. See State v. Washington, 15 Conn. App. 704, 711, 546 A.2d 911 (1988) (claim that judge improperly instructed jury on element of offense reviewable even if not raised at trial). We conclude, however, that the defendant has failed to show that the alleged violation clearly exists and clearly deprived him of a fair trial.

“In reviewing a constitutionally based challenge to the court’s instructions to the juiy, we must examine the charge as a whole to determine whether it is reasonably possible that the jury was misled by the challenged instruction.” State v. Barnes, 33 Conn. App. 603, 607, 637 A.2d 398 (1994), aff'd, 232 Conn. 740, 657 A.2d 611 (1995). Our review of the jury charge in its entirety indicates that the trial court did not invite the jury to consider the two separate charges as one, nor did the charge direct a verdict of guilty on both counts.

The defendant claims that the jury could have interpreted the trial court’s instruction to mean that if they found that the defendant possessed the requisite intent to kill, they could not return a verdict of not guilty on one of the charges of either murder or attempt to commit murder. We disagree that this would be a reasonable conclusion.

Prior to the challenged instruction, the trial court cautioned the jury to consider separately each of the five counts charged against the defendant, stating: “[T]he information has five separate counts, five sections, we call those counts, each contains a complete statement of the crime with which this accused is charged. These constitute allegations of separate claims joined together for the convenience of trial in one information. It will be your duty to consider each charge separately and when you return to the courtroom you’ll be asked whether or not the accused is guilty as charged on each of the counts . . . .” (Emphasis added.) The trial court’s charge with respect to the intent requirement merely informed the jury that if it found that the defendant did not possess the intent to kill, then the intent requirement would not be met for either of the two counts of murder or attempted minder. The trial court does not indicate that a finding of intent alone is enough to convict the defendant on either count. In fact, the charge included the caution that “if you find that the state has failed to prove . . . beyond a reasonable doubt any one of those elements, then you should find the defendant not guilty . . . .” (Emphasis added.) From this charge, the jury could not reasonably have concluded that it was not permitted to find that the defendant was guilty of one crime but not guilty of the other. There is nothing in the instruction to indicate that the two crimes should not be considered independently. Therefore, the defendant has failed to demonstrate that a constitutional violation clearly exists as required by Golding for unpreserved claims.

The judgment is affirmed.

In this opinion the other judges concurred.

       At trial, the defendant’s brother, Anthony Rogers, testified that although he had been shot on November 19, 1994, the defendant was not angry nor was he seeking retribution against the person who had shot him because the defendant had been reassured that his brother was going to be fine and that the individual who had shot him was more seriously injured in the shoot-out.

       Council and McCowen are the alleged coconspirators of the defendant in the crime of conspiracy to commit murder.

       After McLeod gave her statement to the police on November 27, 1994, the police searched the trash at Four Brothers Car Wash, but were unable to locate the shell casing.

       General Statutes (Rev. to 1993) § 53a-217 provides: “Criminal possession of a firearm or electronic defense weapon: Class D felony, (a) A person is guilty of criminal possession of a firearm or electronic defense weapon when he possesses a firearm or electronic defense weapon and has been convicted of a capital felony, a class A felony [with one exception], a class B felony [with listed exceptions], a class C felony [with listed exceptions], or a class D felony [under the listed statutory sections]. For purposes of this section, ‘convicted’ means having a judgment of conviction entered by a court of competent jurisdiction.
      “(b) Criminal possession of a firearm or electronic defense weapon is a class D felony for which two years of the sentence imposed may not be suspended or reduced by the court.”

       The defendant was charged in the fourth count of the information with criminal possession of a firearm as follows: “The Assistant State’s Attorney further accuses Thomas Rogers of Criminal Possession of a firearm and charges that at the Cily of New Haven, on or about the 20th day of November 1994, at approximately 2:30 p.m. near the area of 69 County Street, the said Thomas Rogers did possess a firearm, having been previously convicted of a class D Felony, said conduct being in violation of § 53a-217 of the Connecticut General Statutes.”

       General Statutes § 29-38 provides in relevant part: “Any person who knowingly has, in any vehicle owned, operated or occupied by him, any weapon for which a proper permit has not been issued . . . shall be fined not more than one thousand dollars or imprisoned not more than five years or both, and the presence of any such weapon in any vehicle shall be prima facie evidence of a violation of this section by the owner, operator and each occupant thereof. The word ‘weapon’, as used in this section means any pistol or revolver . . . .”
      General Statutes § 29-27 defines “pistol” and “revolver” as used in § 29-38 as “any firearm having a barrel less than twelve inches in length.”

       This claim relates to the prosecutor’s single reference to the defendant as a “killer.” The prosecutor stated: “The defense talks about the importance of this case to [the defendant]. Let’s talk about what else is important in this case. What’s also important is that a killer, [the defendant], be brought to justice. That’s also a responsibility [of] jurors. A sixteen year old man, William Broclcenberry, is dead and he’s not coming back. So, when we talk about what’s important and what’s not, let’s not forget about Mr. Brockenberry.”

       This claim relates to the prosecutor’s reference to this case as involving “street violence,” and his statement: “I’m going to leave you with this thought. You’ve listened to this case, you’ve seen street violence now in all its viciousness, all its ugliness, all its irrationality. Before you came here, maybe some of you thought that the police were the people who enforced the law; maybe some of you thought the state’s attorney’s office enforces the law; maybe some of you think maybe the judge enforces the law. But really, who enforces the law is you. The jury enforces the law.”

       In this claim, the defendant argues that the prosecutor’s comment on a conversation of the defendant, Council and McCowen was an indirect comment on the defendant’s failure to testify. In reply to the defendant’s argument that McLeod said that she could not hear all of that conversation, the prosecutor stated: “The defense says, well, Miss McLeod couldn’t say she heard it all, and I covered that, I think, already, but think about this. I don’t know about you, but if I was not involved in a murder or if I was the innocent passenger in a car or if I had gone out for a cup of coffee, you’d be sure that I’d be screaming bloody murder about it to Mr. Council and Mr. McCowen, my friends, loud enough for all to hear at 152 Ashmun Street and at Miss McLeod’s house. Which, by the way, I didn’t hear discussed at all during the defense argument, that little alibi discussion that occurred at Miss McLeod’s apartment after the fact. The defendant apparently wants you to believe that he whispered his objections in disapproval to his friends, apparently. I don’t know.”

       This claim relates to the prosecutor’s comments on the defendant’s right to the presumption of innocence. In response to the defendant’s closing, which emphasized the presumption of innocence and the state’s heavy burden in overcoming the presumption, the prosecutor stated: “No question [the defendant] is entitled to the presumption of innocence. That’s the law, and what that means is that he’s entitled to a fair trial, nothing more, nothing less. [The defendant] has now had his fair trial, he’s had his due process, he is not entitled to any preferential treatment.”

       The trial court charged the jury with respect to adoptive admissions as follows: “Now, the state has offered evidence through the witness Safira McLeod that the defendant, Thomas Rogers, along with Isaac Council and Larry McCowen . . . engaged in certain conversations both prior to and subsequent to the crimes at issue. Miss McLeod testified that on both occasions prior to and subsequent to the crimes charged she heard all three individuals participate in the conversations, although she could not recall precisely the language used by each. She further indicated that at no time did she hear the defendant, or for that matter, anyone else, disavow or disagree with anything that was said or any of the conduct that she heard had occurred.
      “Admissions may be introduced against a party who made the admission. A defendant can be held to have adopted a statement as his own, however, when his conduct indicates that he accedes to or adopts a statement made by another person even if a defendant makes no response to a statement made within his hearing. That statement may be introduced when the circumstances show that he heard and understood the statement, had the opportunity to speak and circumstances naturally called for a reply from him if the statement were not true. Such an admission by one cries out for denial by the other. In the absence of such a denial, it is admissible as an admission against both.
      “Now, of course, in connection with that evidence the defendant points out that the witness testified that she did not hear everything that was said. It 'is for you to determine whether, in fact, you believe such statements were made, were in fact made by the defendant, by Council or by McCowen, and whether or net the defendant’s conduct or silence indicated an adoption of those statements.’’ (Emphasis added.)

       The Schiappa court does not discuss the fact that the defendant was charged with conspiracy to commit murder and the relevance of that fact to whether the word “I” or the word “we” was used. At the conclusion of the trial, the jury did not find the defendant guilty of conspiracy to commit murder but of manslaughter in the first degree.

       In its instructions to the jury regarding the relationship between the intent to kill for the count of murder and the requisite intent for the count of attempt to commit murder, the trial court stated: “Now, with respect to the murder charge, just the murder charge, not the lesser includeds, and the attempt to commit conspiracy—attempt to commit murder charge, the killing of Mr. Brockenberry and the wounding of Mr. Gallman occurred essentially at the same time, the same place.
      “Now, in order for you to find this defendant guilty of the charge of murder, one of the elements is that you must find proven beyond a reasonable doubt that the defendant had the intent that another person be killed. And if you—so, if you should find the defendant not guilty of the crime of murder because you find that intent to kill has not been proven, then you must also find the defendant not guilty on the charge of attempted murder as well because there would also be no intent to attempt to kill and no intent to kill on the attempt charge. So, the intent, if you find him not guilty on murder, because you find the state has not proven intent to kill, then you must also find him not guilty of attempted murder because the same intent would apply to both of those charges. Keep in mind, I am not talking about any of the lesser includeds on the first count, I’m only talking about the murder charge and the attempt to commit murder charge. If you find that the state has proven beyond a reasonable doubt each of the elements of the crime of attempted murder, then you should find him guilty. If, on the other hand, if you find that the state has failed to prove him—if you find the state has failed to prove beyond a reasonable doubt any one of those elements, then you should find the defendant not guilty on the third count.”


source: Caselaw Access Project

author: SPEAR, J.

license: Public Domain

text:
    STATE LIBRARY v. FREEDOM OF INFORMATION COMMISSION ET AL. CITY OF NORWICH ET AL. v. FREEDOM OF INFORMATION COMMISSION ET AL.
    (AC 14415)
    (AC 14416)
    O’Connell, C. J., and Landau and Spear, Js.

      Argued December 15, 1997
    officially released September 22, 1998

      Victor Perpetua, with whom, on the brief, were Catherine Wassel-Nasto, commission counsel, and Mitchell W. Pearlman, general counsel, for the appellant (named defendant).

      Shelley G. Partridge, with whom, on the brief, were Jane Richardson and James C. McGuire, for the appellants (defendant Maria T. Hileman et al.).

      Linsley J. Barbato, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Ralph E. Urban and Bernard F. McGovern, Jr., assistant attorneys general, for the appellee (plaintiff in the first case).

      Marc S. Mandell, for the appellees (plaintiffs in the second case).

      Jeffrey F. Gostyla filed a brief for Connecticut Police Chiefs Association, as amicus curiae.
   Opinion

SPEAR, J.

This case comes to us on remand from our Supreme Court. The principal issue that remains is whether the contract clause of the federal constitution prohibits the freedom of information commission (commission) from requiring the disclosure of the transcripts of hearings that were conducted in 1964 regarding the activities of members of the Norwich police department, where a 1973 agreement between the plaintiffs, the Connecticut State Library (library) and the city of Norwich (city), provides that the transcripts be sealed for fifty years. We conclude that the contract clause would be violated if the Freedom of Information Act (General Statutes § l-18a et seq.) was applied to require the disclosure of these transcripts. Accordingly, we affirm the judgments of the trial court.

There is no dispute about the facts. The defendant Maria T. Hileman, a reporter for the New London Day newspaper (Day), requested that the library release the transcripts of testimony taken during the 1964 investigation of the Norwich police department. The Norwich city council adopted a resolution on March 7,1966, that the transcripts of the 1964 hearings should be retained by the city clerk until December 7, 1971, at which time they would be destroyed. When approval for the destruction of the transcripts was subsequently sought, the state archivist and the administrator of public records determined that the transcripts had historical value and should be permanently retained at the library. Thereafter, the city and the public records administrator entered into the subject agreement. The library refused to release the transcripts because of the 1973 agreement, which provided that the library would store the transcripts and prevent their disclosure for a period of fifty years.

Hileman and the Day filed a complaint with the commission. The commission granted intervenor status to both the city and the Norwich police department, and also granted party status to Richard Abele and James McGeowan. After a hearing, the commission found that “[approximately fifty-four individuals were called to testily before the [Norwich city council] and were questioned about a range of topics concerning the [Norwich police department] including: on and off-duty conduct of Norwich police officers, the administration of the [Norwich police department], the handling of police benevolent funds, whether there was improper use of firearms and keys to public buildings, and whether [the Norwich police department’s] instruction/training were up-to-date. ... It is also found that the state’s attorney’s office took the position that the proper investigatory agent was the city of Norwich and not its own office due to the administrative nature of the problems then allegedly plaguing the [Norwich police department].”

In ordering disclosure, however, the commission stated that “[d]ue to the unique circumstances of this case and the compelling testimony of Messrs. Abele and McGeowan, this commission declines to order disclosure of the content of the testimony of Messrs. Abele and McGeowan. Such testimony may be redacted prior to disclosure as ordered in paragraph one of the order . . . .”

The commission also ordered that “the [library] may redact all references to the private affairs of personally identifiable individuals, including references to their marital status, religion, family members and personal financial matters, including any matter that does not relate to the operations of the [Norwich police department].”

The commission dismissed the plaintiffs constitutional claim that disclosure of the transcripts would impair the obligation of the contract between the city and the library in violation of the contract clause. The commission concluded that the respondent “failed to establish that: (a) the contract clause applies under the facts of this case, or (b) prior to the passage of the [Freedom of Information] Act, public agencies could have contracted to be, in effect, exempt from the provisions thereof.”

The commission noted in reaching its conclusions that “the record contains no evidence to indicate that either the city clerk or [the library] would be prejudiced by an order of disclosure of the transcripts. Furthermore, at no time has either party had any financial obligation under the subject agreement. This commission also notes that legislation reasonable and necessary to serve important public interests may pass constitutional muster.”

The library, the city, Abele and McGeowan appealed to the Superior Court from the commission’s decision. The trial court found that the commission’s order violated the contract clause of the United States constitution because it nullified the contract between the library and the city. The trial court sustained the appeals and ordered that the transcripts remain under seal as provided by the agreement. The commission, Hileman and the Day then appealed to this court.

The defendants claim that (1) the trial court failed to adhere to the proper standard of review because it (a) substituted its judgment for that of the commission, (b) failed to give proper deference to the commission’s construction of the Freedom of Information Act and (c) failed to hold the plaintiffs to their burden of proving that the records are exempt from disclosure. The defendants also claim that (2) the trial court improperly invoked the contract clause of the United States constitution because there was no financial consideration here and, therefore, there was no contract and, even if there was a contract, the contract clause does not apply because no property interests are involved, and (3) there was no substantial impairment of the contract because of the commission’s redaction order. We disagree with all of the claims.

I

A

The trial court reviewed the actions of the commission pursuant to General Statutes § 4-183 (j), the relevant portion of which provides that on appeal “[t]he court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions . . . .” (Emphasis added.)

The defendants claim that the trial court failed to adhere to the proper standard of review because it substituted its judgment for that of the commission. In making that claim, the defendants do not identify any facts that supposedly were found by the trial court.

Although the trial court stated that “[t]he [commission] made no finding of fact as to the legality or propriety of the special committee’s conduct of the investigation,” the trial court did not purport to make such findings. The court also noted that “[t]he testimony before the [commission] indicates that the 1964 Norwich city council proceeding in question operated contrary to constitutionally mandated procedural and substantive due process safeguards; while the Norwich city council had authority to conduct the investigation, it was done in an illegal manner.” (Emphasis added.) We conclude that the trial court was merely referring to testimony that was given. The trial court also stated that “[t]he [commission] made no finding of fact with regard to any agreement or contract between Abele or McGeowan and the Norwich city council and the effect any such agreement or contract would have on the agreement between the [library] and [the city of] Norwich.” We construe that statement to be an observation by the trial court with respect to the commission’s failure to find a fact. The statement did not, in and of itself, constitute fact-finding by the court. Moreover, the trial court’s statement that there was uncontroverted testimony from Abele and McGeowan that they relied on promises from the city to keep their testimony confidential was, again, only a reference to testimony and not fact-finding.

In its discussion, the trial court did refer to certain contracts other than the 1973 agreement that is at issue here. The commission made no mention of those other contracts. Even if we conclude that reference to those other contracts constituted improper fact-finding, the defendants fail to show how they were prejudiced or affected in any way with respect to the contract at issue.

We conclude that although the trial court referenced certain testimony and the failure of the commission to find certain facts, it did not substitute its judgment for that of the commission.

B

The trial court did not agree with the commission’s legal conclusions regarding the application of the contract clause of the United States constitution to this case. The trial court, however, was not required to give deference to the agency’s decision with respect to this question of law. The trial court had every right to substitute its judgment for that of the agency in considering whether the contract clause applied and was, in fact, violated. General Statutes § 4-183 (j) (1).

Our Supreme Court has held, in the context of a workers’ compensation appeal, that “[w]here . . . the appeal involves an issue of statutory construction that has not yet been subjected to judicial scrutiny, this court has plenary power to review the administrative decision. See Davis v. Norwich, 232 Conn. 311, 317, 654 A.2d 1221 (1995) (state agency not entitled to special deference when its construction of statute has not undergone previous judicial scrutiny).” Doe v. Stamford, 241 Conn. 692, 697, 699 A.2d 52 (1997). The reasoning in Doe applies here to the agency’s construction of the contract clause of the United States constitution.

Because we conclude that the trial court was not required to defer to the agency’s construction of the constitutional provision, the defendants’ claim is without merit.

C

The defendants next claim that the trial court failed to hold the plaintiffs to their burden of proving an exception to disclosure. Because the trial court sustained the appeal on the ground that application of the Freedom of Information Act under the circumstances here would violate the contract clause of the United States constitution, discussed previously, there is no need to address this claim.

II

Asserting that there was no consideration, the defendants claim that there was no contract here and, therefore, there could be no violation of the contract clause. They cite no authority and provide no analysis for their proposition, articulated at oral argument, that only an exchange involving money can constitute legal consideration. In its brief, the commission footnotes the fact that the city was denied permission to destroy the transcripts and that the denial was not conditioned on either the storage or the sealing of the records. The commission provides no analysis, however, as to why this demonstrates that there was no consideration for the 1973 agreement.

The defendants further assert that even if a contract existed, it did not involve property interests and, therefore, the contract clause does not apply here. In support of this proposition, the plaintiffs cite United States Trust Co. of New York v. New Jersey, 431 U.S. 1, 97 S. Ct. 1505, 52 L. Ed. 2d 92 (1977), and R. Hale, “The Supreme Court and the Contract Clause,” 57 Harv. L. Rev. 512 (1944). The United States Trust Co. of New York case states that “[c]ontract rights are a form of property” but makes no statement that only contracts that involve properly rights are protected by the contract clause. United States Trust Co. of New York v. New Jersey, supra, 19 n.16. The defendants offer no analysis to support their proposition that the contract clause is limited to only those cases involving property interests.

We consider both of those claims to be inadequately briefed. “Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Internal quotation marks omitted.) State v. Henderson, 47 Conn. App. 542, 558, 706 A.2d 480, cert. denied, 244 Conn. 908, 713 A.2d 829 (1998). Our Supreme Court has stated that “[w]e are not required to review issues that have been improperly presented to this court through an inadequate brief.” Connecticut National Bank v. Giacomi, 242 Conn. 17, 44-45, 699 A.2d 101 (1997).

We therefore decline to review the defendants’ claims that there was no contract because of a lack of consideration and that the contract clause protects only contracts that involve property interests.

Ill

We now turn to the question of whether the trial court properly concluded that applying the Freedom of Information Act to the subject contract would violate the contract clause of the United States constitution. Before doing so, we must address a threshold consideration. The plaintiffs do not claim that the act is unconstitutional; rather, they assert that applying it to this contract under these circumstances would violate the contract clause. The defendants make no claim that the act cannot be challenged as being unconstitutional in its application. We do not address the constitutionality of the act, but decide only that it would be improper to apply it here in light of the contract clause.

General Statutes § 1-3 provides: “If any provision of any act passed by the General Assembly or its application to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of such act.” (Emphasis added.)

Our Supreme Court has said that “[t]o determine whether legislation is valid as to one and invalid as to another is consonant with principles long established. ... By General Statutes § 1-3 the legislature has shown its intention that there is to be a presumption of separability of the provisions and of the applications of statutes. ... A statute may operate in a manner consistent with constitutional requirements when applied to one set of circumstances, although as to another it may produce a result which makes its operation unconstitutional.” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Menillo, 171 Conn. 141, 145-46, 368 A.2d 136 (1976), quoting State v. Sul, 146 Conn. 78, 81, 147 A.2d 686 (1958). We address the applicability of the act only to the circumstances of this case.

“Although the language of the Contract Clause is facially absolute, its prohibition must be accommodated to the inherent police power of the State to safeguard the vital interests of its people.” (Internal quotation marks omitted.) Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U.S. 400, 410, 103 S. Ct. 697, 74 L. Ed. 2d 569 (1983). The court in Energy Reserves Group, Inc., set out a three part test to determine whether the contract clause has been violated. First, the “threshold inquiry is whether the state law has, in fact, operated as a substantial impairment of a contractual relationship.” (Internal quotation marks omitted.) Id., 411. Second, “[i]f the state regulation constitutes a substantial impairment, the State, in justification, must have a significant and legitimate public purpose behind the regulation .... The requirement of a legitimate public purpose guarantees that the State is exercising its police power, rather than providing a benefit to special interests.” (Citations omitted.) Id., 411-12. Third, once “a legitimate public purpose has been identified, the next inquiry is whether the adjustment of the rights and responsibilities of contracting parties [is based] upon reasonable conditions and [is] of a character appropriate to the public purpose justifying [the legislation’s] adoption.” (Internal quotation marks omitted.) Id., 412.

A

The first part of the three part test of Energy Reserves Group, Inc., is whether the state law poses a substantial impairment of the contract. “This [substantial impairment] inquiry has three components: whether there is a contractual relationship, whether a change in law impairs that contractual relationship, and whether the impairment is substantial.” General Motors Corp. v. Romein, 503 U.S. 181, 186, 112 S. Ct. 1105, 117 L. Ed. 2d 328 (1992). We conclude, pursuant to our discussion in part II of this opinion, that there was a contractual relationship between the library and the city. Except for the claimed lack of consideration, that contractual relationship has not been challenged by the defendants.

The second component of General Motors Corp. v. Romein, supra, 503 U.S. 186, is also satisfied because applying the Freedom of Information Act to this contract would definitely affect and impair the contractual relationship. The contract’s purposes are to preserve the records indefinitely and to protect their confidentiality for a period of fifty years. Despite the commission’s redaction order, the confidentiality aspect of the contract would be impaired severely by applying the act in this case. We cannot be certain that the redaction that is allowed by the commission’s order will eliminate or even lessen the severity of that impairment. Those redactions would apply only to private matters concerning those particular individuals. The provisions of the contract provide for much broader protection. No disclosure is allowed because as the agreement states, “disclosure of the contents of the transcripts would adversely affect the reputation or character of persons now living . . . .” Moreover, the line between the private and public affairs of a public servant, such as a police officer, often may be difficult to ascertain, and reasonable people could easily disagree as to precisely where such a line should be drawn.

We also note that the commission’s language in its order is facially permissive. The order states that the library may redact certain references. Even if the word may is construed to require the library to redact the references that are mentioned in the order, it is likely that disagreements would arise over what should be redacted. Such disagreements could result in litigation. Because, as we have noted, reasonable minds could disagree, disclosure could be ordered that would adversely affect now protected reputations.

Additionally, as the trial court pointed out, the contract complies with the relevant state statutes that were in effect at the time that the contract was made. The defendants do not attack that conclusion in their briefs. “[W]e must be mindful that the contracts clause is designed to enable individuals to order their personal and business affairs according to their particular needs and interests. Once arranged, those rights and obligations are binding under the law, and the parties are entitled to rely on them. . . . The obligations protected by the clause [include] not only the express terms [of the contract] but also the contemporaneous state law pertaining to interpretation and enforcement.” (Citation omitted; internal quotation marks omitted.) Whirlpool Corp. v. Ritter, 929 F.2d 1318, 1322 (8th Cir. 1991).

The last prong of General Motors Corp. v. Romein, supra, 503 U.S. 186, is the first inquiry under Energy Reserves Group, Inc. v. Kansas Power & Light Co., supra, 459 U.S. 400: Is the impairment substantial? “The Supreme Court, however, has provided little specific guidance as to what constitutes a ‘substantial’ contract impairment.” Baltimore Teachers Union v. Mayor & City Council of Baltimore, 6 F.3d 1012, 1017 (4th Cir. 1993), cert. denied, 510 U.S. 1141, 114 S. Ct. 1127, 127 L. Ed. 2d 435 (1994). It appears that the Supreme Court has assumed “that an impairment is substantial at least where the right abridged was one that induced the parties to contract in the first place.” Id. If the act were applied to this contract, confidentiality, a major inducement for the original making of the contract, would be severely affected. That the redaction order offers some protection against improper disclosure is not dispositive because “[tjotal destruction of contractual expectations is not necessary for a finding of substantial impairment.” Energy Reserves Group, Inc. v. Kansas Power & Light Co., supra, 411. We conclude that the impairment is substantial.

The second inquiry under Energy Reserves Group, Inc., whether the act has a legitimate public purpose, requires little discussion. As the trial court appropriately noted, the act “expresses a strong legislative policy in favor of the open conduct of government and free public access to government records.” Wilson v. Freedom of Information Commission, 181 Conn. 324, 328, 435 A.2d 353 (1980). While we acknowledge the worthwhile public purposes that the act serves, we nonetheless conclude that the rights of the contracting parties should prevail under the circumstances here.

The final inquiry under Energy Reserves Group, Inc., is whether applying the act under these circumstances would be based on “reasonable conditions and [be] of a character appropriate to the public purpose justifying [the legislation’s] adoption.” (Internal quotation marks omitted.) Energy Reserves Group, Inc. v. Kansas Power & Light Co., supra, 459 U.S. 412. It is important to keep in mind that this investigation took place in 1964, and a public report was issued on January 4,1965. The report concluded that the chief of police “has not taken the firm administration and disciplinary measures needed to [correct the situation of those policemen who do no credit to the city].” There are other negative comments in the report concerning the chiefs lack of administrative and managerial abilities that allowed certain officers to take advantage of him.

The report also disclosed that alcohol abuse might have been a problem with a “small segment of the department” and that “keys to certain commercial buildings in Noiwich are kept in police headquarters hanging on hooks in the open so that it was possible for an unscrupulous person to duplicate them.” Other disclosures included that the chief failed to keep his officers properly informed and to maintain good morale, the rules and regulations needed updating, there was no regular training program for new police officers, police coverage of the city was not adequate, there was a shortage of street sergeants and the detective division was understaffed.

The report further noted that operation of the department was not secure in that reporters “have been allowed to read police teletype infoimation as a matter of course . . . and attorneys defending persons arrested have been aided in the preparation of their cases beyond any requirement of the law by being given access to the arresting officer’s report and other material.” There was also preferential treatment of certain officers that caused a decline in morale. The concluding paragraph of the report noted that three policemen had refused to respond to questions regarding Police Benevolent Association activities. The committee concluded that officers “with nothing to conceal would not hide behind an attorney’s advice when asked questions about their off duty activities.”

We may reasonably assume that during the nearly thirty years between the investigation report and the commission’s order, those matters were addressed in some fashion. It is highly unlikely that disclosure of the details of the testimony now would advance the cause of open government that was envisioned by the act and referred to in Wilson v. Freedom of Information Commission, supra, 181 Conn. 328. The other policy cited in Wilson deals with public access to the records. Such access to these thirty-four year old records will be delayed, but not denied, by enforcing the fifty year sealing provision that was specified in the contract. The historical value of the records will not be significantly affected by this additional passage of time. Disclosure, however, will destroy a major purpose of the contract. Such an application of the act is not reasonable or appropriate under the circumstances here and would violate the contract clause of the United States constitution.

The judgments are affirmed.

In this opinion the other judges concurred.

       In State Library v. Freedom of Information Commission, 41 Conn. App. 641, 677 A.2d 470 (1996), rev’d, 240 Conn. 824, 694 A.2d 1235 (1997), we determined that the trial court’s failure to take evidence as to the plaintiffs’ claims of aggrievement deprived the court of jurisdiction over the plaintiffs’ appeals. The Supreme Court reversed our decision in State Library v. Freedom of Information Commission, 240 Conn. 824, 694 A.2d 1235 (1997), concluding that the record sufficiently established that the plaintiffs were aggrieved. Thus, there was no need lor the plaintiffs to put on evidence of aggrievement.

       The constitution of the United States, article one, § 10, provides in relevant part,: “No State shall . . . pass any . . . Law impairing the Obligation of Contracts . . . .”

       General Statutes § 1-19 provides in relevantpart: “(a) Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to inspect such records . . . .”

       The trial court also stated that the commission's order nullified the contract “between Abele and [the city], the contract between McGeowan and [the city], and the contracts made between others who testified and [the city].” The commission made no findings that such contracts existed.

       See footnote 4.

       “The doctrine of consideration is of course fundamental in the law of contracts, the general rule being that in the absence of consideration an executory promise is unenforceable. In defining the elements of the rale, we have stated that consideration consists of a benefit to the party promising, or a loss or detriment to the party to whom the promise is made. ... An exchange of promises is sufficient consideration to support a contract.” (Citations omitted; internal quotation marks omitted.) Osborne v. Locke Steel Chain Co., 153 Conn. 527, 530-31, 218 A.2d 526 (1966).


text:
    STATE OF CONNECTICUT v. JOEL TUCKER
    (AC 16427)
    Laveiy, Schaller and Spear, Js.

      Argued May 28
    officially released September 22, 1998

      James A. Shanley, Jr., special public defender, for the appellant (defendant).

      Stephen J. Sedensky III, senior assistant state’s attorney, with whom, on the brief, was Jonathan C. Benedict, state’s attorney, for the appellee (state).
   Opinion

SPEAR, J.

The defendant, Joel Tucker, appeals from the judgment of conviction, rendered after a jury trial, of risk of injury to a child in violation of General Statutes (Rev. to 1995) § 53-21, and from the judgment of violation of probation. The defendant claims that (1) § 53-21 is unconstitutionally vague as applied to the facts of this case, (2) given the trial court’s instructions regarding what constitutes an act under § 53-21, there was insufficient evidence to sustain the jury’s verdict, and (3) the trial court improperly refused to set aside the violation of probation charge that was based on the conviction in this case. We disagree and affirm the judgments of the trial court.

The jury reasonably could have found the following facts. On September 28, 1995, the defendant went to the home of his eleven year old daughter, the victim, at 150 Whitney Avenue in Bridgeport. The victim had been home from school for several days with tonsillitis and had called the defendant at his mother’s home earlier that day requesting that the defendant bring her some money. After using the bathroom, the defendant entered the living room, where the victim was sitting on the couch. As the victim got up to go into the kitchen, the defendant grabbed her arm, causing her to fall to the floor on her back. The defendant positioned himself on top of the victim, face to face, and tried to force his tongue into her mouth. In between repeated attempts to force his tongue into the victim’s mouth, the defendant held his hand over her mouth to prevent her from screaming. While resisting the defendant, the victim bit her own tongue. When the defendant eventually got off of the victim after several unsuccessful attempts to force his tongue into her mouth, she grabbed a knife and told him to leave. The defendant left $20 for the victim on a table and told her, as he departed, to keep the incident between them. The victim immediately called her grandmother, the defendant’s mother, to report the defendant’s behavior. Thereafter, the police, an ambulance and the victim’s relatives arrived at the victim’s home.

The next day, several police officers arrived at the home of the defendant’s mother to look for the defendant. The defendant was hiding in the attic and did not respond to the officers’ repeated calls for him. Eventually, the officers found the defendant hiding behind boxes in the attic. He was arrested at that time.

At the time of his arrest, the defendant was on probation for a conviction of sexual assault. As a result of the incident with the victim, the defendant was charged with violating his probation. The state’s substitute information charged the defendant with one count of risk of injury to a child in violation of § 53-21 and one count of unlawful restraint in the second degree in violation of General Statutes § 53a-96. The jury returned a verdict of guilty on the charge of risk of injury to a child and acquitted the defendant on the charge of unlawful restraint in the second degree. Because of the conviction, the court subsequently found the defendant to be in violation of his probation. This appeal followed.

I

The defendant first claims that § 53-21 is unconstitutionally vague as applied to the facts of this case. “Our Supreme Court has recognized that vague statutes fail to give fair warning to persons who may be affected as to what conduct is prohibited. A statute should be reasonably specific and direct so that a person of ordinary intelligence has a reasonable opportunity to govern his or her behavior by reference to the words of the statute together with judicial gloss.” State v. Ryan, 48 Conn. App. 148, 153, 709 A.2d 21, cert. denied, 244 Conn. 930, 711 A.2d 729 (1998). Moreover, although “[t]he constitutional requirement of definiteness applies more strictly to penal laws than to statutes that exact civil penalties”; (internal quotation marks omitted) State v. Erzen, 29 Conn. App. 591, 594, 617 A.2d 177 (1992); “[a] penal statute may survive a vagueness attack solely on a consideration of whether it provides fair warning.” (Internal quotation marks omitted.) Id.

Our Supreme Court has described the principle of fair warning as a “principle which mandates that as a matter of due process a penal statute must be sufficiently definite to enable a person to know what conduct he must avoid. ... [A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.” (Internal quotation marks omitted.) State v. Pickering, 180 Conn. 54, 59-60, 428 A.2d 322 (1980). “Lack of precision, however, is not, in or of itself, offensive to the requirement of due process.” (Internal quotation marks omitted.) Seals v. Hickey, 186 Conn. 337, 344, 441 A.2d 604 (1982). “Ambiguity is, unfortunately, a common statutory ailment. A degree of vagueness is endemic in many statutes. ... If the meaning of a statute can fairly be ascertained through judicial construction, however, it need not be stricken for vagueness. . . . References to judicial opinions involving the statute, the common law, legal dictionaries, or treatises may be necessary to ascertain a statute’s meaning to determine if it gives fair warning.” (Citations omitted; internal quotation marks omitted.) State v. Proto, 203 Conn. 682, 698-99, 526 A.2d 1297 (1987).

“A determination of fair warning is ascertained in several ways. We review prior case law to determine whether the defendant had fair warning that his acts violated § 53-21 [and we] . . . also look to see whether a person of ordinary intelligence would reasonably know what acts are permitted or prohibited by the use of his common sense and ordinary understanding.” State v. Erzen, supra, 29 Conn. App. 594. Because prior case law that “delineate[s] a statute’s reach can constitute sufficient notice of the acts prohibited to render the statute constitutional as applied to the particular facts of a case”; State v. Pickering, supra, 180 Conn. 63; we conclude that prior case law on this issue, in conjunction with the exercise of common sense, constituted fair warning to the defendant that his actions were in violation of § 53-21.

Our Supreme Court previously reviewed the legislative history of § 53-21 and concluded that the statute was intended “to proscribe two general types of behavior likely to injure physically or to impair the morals of a minor under sixteen years of age: (1) deliberate indifference to, acquiescence in, or the creation of situations inimical to the minor’s moral or physical welfare . . . and (2) acts directly perpetrated on the person of the minor and injurious to his moral or physical well-being.” (Citation omitted.) State v. Dennis, 150 Conn. 245, 250, 188 A.2d 65 (1963). It is against this background that we now analyze the defendant’s vague as applied challenge to § 53-21.

The defendant specifically argues that the language of § 53-21 stating that “any act likely to impair the health or morals of any such child” is unconstitutionally vague as applied to the facts of this case because this language did not give him fair warning that his conduct toward the victim was proscribed under the statute. General Statutes (Rev. to 1995) § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

With respect to the morals provisions in the second prong of § 53-21, “the meaning of the words ‘acts likely to impair the . . . morals of any child [under the age of sixteen years]’ have been repeatedly and explicitly elucidated through several opinions of [the Supreme Court].” State v. Pickering, supra, 180 Conn. 63; see also State v. Schriver, 207 Conn. 456, 463, 542 A.2d 686 (1988); State v. Anderson, 152 Conn. 196, 197, 205 A.2d 488 (1964).

Our Supreme Court addressed a vague as applied challenge to the morals provisions in the second prong of § 53-21 in State v. Pickering, supra, 180 Conn. 54. Subsequent case law has since “invoked Pickering as the controlling standard for evaluating vagueness challenges to the morals provision of § 53-21.” State v. Schriver, supra, 207 Conn. 463; see State v. Perruccio, 192 Conn. 154, 161, 471 A.2d 632, appeal dismissed, 469 U.S. 801, 105 S. Ct. 55, 83 L. Ed. 2d 6 (1984); State v. Smith, 183 Conn. 17, 20-21, 438 A.2d 1165 (1981). In Pickering, where a defendant had sexually molested his daughter, the court held not only that “the deliberate touching of the private parts of a child under the age of sixteen in a sexual and indecent manner is violative of [§ 53-21]”;State v. Pickering, supra, 64; butthat“[t]he defendant’s behavior rendered him a hard-core violator as to whom the statute was not vague, whatever its implications for those engaged in different conduct.” (Emphasis added; internal quotation marks omitted.) Id, 65.

The defendant misconceives the Pickering standard, as evidenced by his argument that “[i]f Pickering is the standard by which to test whether one has violated the second prong of Section 53-21, [his] conviction for impairment of a minor’s morals cannot stand because there is no proof that he deliberately touched the private parts of a minor in a sexual or indecent manner.” We do not interpret Pickering to stand for the proposition that a defendant violates the second prong of § 53-21 only if he deliberately touches a minor’s private parts in a sexual or indecent manner. Rather, we interpret Pickering to mean that while a defendant who deliberately and improperly touches the private parts of a minor is clearly a hard-core violator of § 53-21, such conduct is not necessarily the only type of conduct that is proscribed under the statute. Here, the defendant grabbed the victim’s arm and lay on top of her, face to face, while holding his hand over her mouth to maintain her silence during his repeated attempts to force his tongue into her mouth. We are satisfied that these acts violated the proscriptions of § 53-21 pursuant to the Pickering standard.

The defendant specifically relies on State v. Schriver, supra, 207 Conn. 463-64, for the proposition that he did not have fair warning that his conduct violated § 53-21. He argues that his conduct, like that of the defendant in Schriver, did not consist of the deliberate touching of the private parts of a minor in a sexual and indecent manner, which is required pursuant to Pickering. His reliance is misplaced here because the conduct that was at issue in Schriver is factually distinguishable from the defendant’s conduct here. Specifically, the defendant in Schriver approached a fully clothed minor female in public, grabbed her around her waist, and whispered a sexually suggestive remark in her ear. Id., 457. The Schriver court concluded that “[u]nder the Pickering test . . . grabbing the waist of a fully clothed minor while uttering a sexually suggestive remark is not the type of lewd conduct that § 53-21 proscribes. Accordingly, the defendant had no reasonable opportunity to know that his conduct was prohibited by the impairment of morals clause of § 53-21.” Id., 466. The defendant here grabbed the victim’s arm, lay on top of her, face to face, held his hand over her mouth and repeatedly attempted to force his tongue into her mouth. We are persuaded that this factual scenario more closely resembles that in Pickering than that in Schriver.

Having considered the defendant’s conduct here within the context of prior case law on this issue, we conclude that the defendant had fair warning that his actions toward the victim violated the second prong of § 53-21. Accordingly, the defendant’s vague as applied challenge to § 53-21 necessarily fails.

II

The defendant next claims in his brief that the evidence presented at trial was insufficient to sustain the jury’s verdict. Specifically, the defendant maintains that because the trial court’s instructions to the jury defined the term act as it applied to both the health and morals provisions of § 53-21, there was insufficient evidence presented from which a juiy could find him guilty. Although we believe that the actual gravamen of this claim is that the trial court improperly instructed the jury with respect to what constitutes an act under § 53-21, we will also address the defendant’s insufficiency claim.

It is well established that when we “review a challenge to the sufficiency of the evidence to support a conviction, we undertake a two part analysis. State v. Sivri, 231 Conn. 115, 126, 646 A.2d 169 (1994); State v. Wideman, 36 Conn. App. 190, 202, 650 A.2d 571 (1994) [cert. denied, 232 Conn. 903, 653 A.2d 192 (1995)]. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom, the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . State v. Sivri, supra, 126, quoting State v. Greenfield, 228 Conn. 62, 76, 634 A.2d 879 (1993) . . . .” (Internal quotation marks omitted.) State v. Haggood, 36 Conn. App. 753, 760, 653 A.2d 216, cert. denied, 233 Conn. 904, 657 A.2d 644 (1995).

The defendant argues that with respect to the morals provisions of the second prong of § 53-21 and, specifically, the committing of an act under the statute, the trial court neither defined the statutory terms “sexual and indecent manner” nor made reference to what the defendant refers to as “the Pickering requirement that there be a deliberate touching of the private parts of the child.” At trial, evidence was presented that the defendant was lying on top of the victim while holding his hand over her mouth and repeatedly attempting to force his tongue into her mouth.

It does not strain standard notions of credulity that a jury might reasonably infer from the factual scenario in this case that the defendant’s actions were done in a sexual and indecent manner. Moreover, we have already stated that Pickering does not stand for the proposition that a violation of the second prong of § 53-21 can result only from the deliberate touching of a minor’s private parts, as was the factual scenario in that case. Notwithstanding, we are aware of no authority that would obligate the trial court to convey the Pickering standard to the jury in the course of its charge regarding § 53-21.

Accordingly, in light of those facts and the exercise of common sense, we conclude that the trial court properly instructed the jury in this case. Furthermore, there was sufficient evidence presented from which the jury reasonably could have inferred that the defendant’s actions constituted conduct of a sexual and indecent nature. This claim, therefore, is without merit.

Because we have concluded that the defendant’s first two claims are without merit, we need not address his final claim.

The judgments are affirmed.

In this opinion the other judges concurred.

       On October 1, 1995, Public Acts 1995, No. 95-142, § 1, amended General Statutes § 53-21. The version of § 53-21 that preceded the current amended version of the statute is applicable in this case. General Statutes (Rev. to 1995) § 53-21, as it applied to the defendant on September 28,1995, provided: “Injury or risk of injury to, or impairing morals of, children. Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       The defendant did not cite any constitutional provisions in his brief. We assume from the cases that he does cite, however, that his challenge is based on an alleged violation of article first, § 8, of the constitution of Connecticut and the fourteenth amendment to the United States constitution.

       See footnote 1.

       The state’s substitute information misstated the statutory language of § 53-21 in the charge as “health and morals” instead of “health or morals.” That fact is immaterial because both parties here have conceded that the trial court correctly instructed the jury that the state need prove only one of the allegations. “Where a charging document alleges, in the conjunctive, that an offense has been committed in more than one way, a guilty finding may stand if the evidence supports a conviction based upon any one of the statutory alternatives.” State v. Wohler, 231 Conn, 411, 415, 650 A.2d 168 (1994); see State v. Chapman, 229 Conn. 529, 543, 643 A.2d 1213 (1994); State v. Eason, 192 Conn. 37, 42, 470 A.2d 688 (1984), overruled in part on other grounds, Paulsen v. Manson, 203 Conn. 484, 491, 525 A.2d 1315 (1987). We will therefore address only the morals provisions of § 53-21 in this case.

       The defendant maintains and the state concedes that this claim, which was not raised in the trial court, is reviewable under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), “because it implicates the fundamental due process right to fair warning and the record is adequate to facilitate review.” State v. Schriver, 207 Conn. 456, 459, 542 A.2d 686 (1988). We will therefore review this claim.

       The void for vagueness doctrine generally embodies the two principles of fair warning and a guarantee against standardless law enforcement. State v. Schriver, 207 Conn. 456, 459-60, 542 A.2d 686 (1988); see Mitchell v. King, 169 Conn. 140, 142-43, 363 A.2d 68 (1975). The latter principle is relevant only w'hen a statute is challenged as being unconstitutional on its face. State v. George, 37 Conn. App. 388, 390 n.2, 656 A.2d 232 (1995); see State v. Pickering, supra, 180 Conn. 57-58. Because the defendant’s claim here is that § 53-21 is unconstitutional as applied to the facts of this case, we address the principle of fair warning only within the context of this vagueness challenge.

       We are further persuaded that the defendant was aware of the criminal nature of his conduct by the fact that he not only hid in his mother’s attic when police officers arrived at her home looking for him, but he also remained hidden despite the officers’ repeated calls for him.

       The trial court instructed the jury that the term act within the context of the health provisions of § 53-21 referred to “blatant physical abuse that endangers the child’s physical well-being.” The jury reasonably could have inferred from the facts that the defendant grabbed the victim’s arm, fell on top of her on the floor, held his hand over her mouth and attempted to force his tongue into her mouth that the defendant’s actions constituted blatant physical abuse that endangered the victim’s physical well-being.


author: DALY, J.

text:
    MICHAEL E. NAZARKO ET AL. v. ZONING COMMISSION OF THE TOWN OF EAST LYME ET AL.
    (AC 17165)
    (AC 17188)
    Landau, Sullivan and Daly, Js.
    Argued June 9
    officially released September 29, 1998

      Edward B. O’Connell, for the appellant (named defendant).

      Theodore A. Harris, for the appellant (defendant Niantic Sportsmen’s Club, Inc.).

      David F. Sherwood, for the appellees (plaintiffs).
   Opinion

DALY, J.

The plaintiff abutting property owners appealed to the trial court from the decision of the defendant zoning commission of the town of East Lyme (commission) granting the application of the defendant Niantic Sportsmen’s Club, Inc. (club), for a special permit to operate a skeet shooting range on the club’s property, and a special exception concerning the width and surface of its access road. After a hearing on the merits, the trial court held that the published notice of the public hearing was inadequate and misleading and, thus, sustained the appeal. The defendants bring these appeals upon certification by this court. We affirm the judgment of the trial court.

The notice published by the commission provided in relevant part: “The East Lyme Zoning Commission will hold a public hearing on July 7th, 1994 at 6:30 p.m. at the East Lyme High School on Chesterfield Road to consider the following items: 1. The application of the Niantic Sportsmen’s Club, Inc., for a Special Permit to operate a Commercial Club (Skeet and Trap Ranges) on property off Plants Dam Road, East Lyme, Connecticut, further identified as Lot #10, East Lyme Assessor’s Map 65.”

“The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. . . . This court cannot retry the facts or pass upon the credibility of the witnesses.” (Citations omitted; internal quotation marks omitted.) Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn 1, 14, 664 A.2d 719 (1995).

Zoning commissions are required to provide adequate published notice of a public hearing to be held on an application or request for a special permit or special exception. “Notice of the time and place of such hearing shall be published in the form of a legal advertisement appearing in a newspaper having a substantial circulation in such municipality . . . .” General Statutes § 8-3 (a). “Specifically, this court has held that the purpose behind the notice requirement of § 8-3 is fairly and sufficiently to apprise those who may be affected by the proposed action of the nature and character of the proposed action so as to enable them to prepare intelligently for the hearing.” (Internal quotation marks omitted.) Jarvis Acres, Inc. v. Zoning Commission, 163 Conn. 41, 47, 301 A.2d 244 (1972). “There is no requirement that the published notice describe the proposed action in detail or with exactitude.” Welles v. East Windsor, 185 Conn. 556, 559, 441 A.2d 174 (1981); see Woodbum v. Conservation Commission, 37 Conn. App. 166, 178, 655 A.2d 764, cert, denied, 233 Conn. 906, 657 A.2d 645 (1995).

“Compliance with prescribed notice requirements is a prerequisite to a valid action by a zoning board of appeals and failure to give proper notice constitutes a jurisdictional defect.” Wright v. Zoning Board of Appeals, 174 Conn. 488, 491, 391 A.2d 146 (1978). “Without proper public notice, zoning authority actions are null and void.” Cocivi v. Plan & Zoning Commission, 20 Conn. App. 705, 707, 570 A.2d 226, cert. denied, 214 Conn. 808, 573 A.2d 319 (1990). “A defect in the content of the notice cannot be cured by proof that some members of the public received actual notice, or appeared at the hearing.” Peters v. Environmental Protection Board, 25 Com. App. 164, 168, 593 A.2d 975 (1991). The burden of proving that the notice was defective rests on the persons asserting its insufficiency. Id., 170.

The trial court found that the club owns two parcels of land in East Lyme. The original parcel, shown as lot nine on the assessor’s map, consists of approximately ninety-one acres and was acquired by the club in 1957. The second parcel, shown as lot ten on the assessor’s map, consists of approximately seventy-one acres and was purchased in 1991. The club had operated skeet shooting fields on the ninety-one acre parcel for over thirty-five years and, when it attempted to relocate the skeet range to the seventy-one acre parcel, the question arose whether a special permit was necessary. The club then filed the subject application. The application also requested an exception regarding the width and surface of an access driveway from Plants Dam Road.

The trial court, relying on Peters v. Environmental Protection Board, supra, 25 Com. App. 164, determined that the published notice was inadequate and misleading. The published notice failed to describe the subject property by metes and bomds, by specific address or by reference to the nearest street. We conclude that the notice was insufficient in that it describes the subject property as lot ten on the assessor’s map without referring to lot nine, even though the application seeks a special exception to improve an access driveway that traverses both parcels.

The judgment is affirmed.

In this opinion the other judges concurred.