text:
    State of Connecticut v. Gilbert Delgado
    (5399)
    Spallone, Stoughton and Norcott, Js.
    Argued October 14 —
    decision released December 29, 1987

      Caren A. Senter, with whom, on the brief, was Anne D. Dexter, for the appellant (defendant).

      Christopher Malany, deputy assistant state’s attorney, with whom, on the brief, were Frank D ’Addabbo,
      assistant state’s attorney, and Alice Osedach, legal intern, for the appellee (state).
   Norcott, J.

After a trial by jury, the defendant was convicted of the crimes of assault in the first degree in violation of General Statutes § 53a-59 and carrying a pistol without a permit in violation of General Statutes § 29-35. He appeals from the judgment of conviction.

The defendant claims that the trial court erred (1) in its instructions to the jury, (2) in denying the defendant’s motion to suppress a statement he gave after the police arrested him at his home, (3) in sustaining the state’s objection to certain evidence of the victim’s propensity for violence, and (4) in permitting the state to amend the information to include the charge of carrying a pistol without a permit only one week prior to trial. We find no error.

Evidence was presented from which the jury could have found the following facts. On March 20, 1985, Cynthia Vares, Danny Googe, and the defendant had an altercation near Tony’s Pizza Shop in Hartford during which Googe threatened the defendant with a butcher knife. As a result of this incident, Googe was arrested and spent eight days in jail.

Thereafter, the defendant heard from Vares’ brother that Googe had been released from jail and was looking for him. As soon as he heard this news, the defendant went home and armed himself with a gun for his protection. He had no permit for the gun. The defendant then walked down to Tony's Pizza where he talked to some friends. After a short time, the defendant walked over to a friend’s house. During this walk, the defendant saw Googe on the street. Nothing was said. At approximately 10:45 p.m., the defendant returned to Tony’s Pizza and stood outside. While standing outside, the defendant again encountered Googe.

Googe and the defendant became involved in a tense, heated verbal exchange. Googe’s tone of voice was loud and he threatened to kill the defendant who had caused his arrest on March 20, 1985. Googe approached the defendant making gestures with one hand while the other hand was either in his pocket or at his side hidden under his jacket. As Googe approached, the defendant retreated warning Googe not to “walk up on him.”

What happened next is subject to dispute. Googe testified at trial that, after attempting to show the defendant that he was unarmed, he was shot by the defendant. The defendant’s witnesses testified that after Googe approached threateningly close, the defendant pulled the gun and shot Googe after the latter had made one last threatening move.

It is clear that the defendant then shot Googe a second time, immediately left the scene and went to his home. The defendant told his mother, with whom he lived, of the shooting.

Shortly thereafter, the police came to the Delgado home. Detectives Stanley Lukas and Ocell Blocker and other members of the Hartford police department had come to the Delgado home acting on the statement of an eyewitness to the shooting. Upon their arrival, Lukas and Blocker knocked on the front door, identified themselves, requested and received permission to enter. They entered the home accompanied by two or three other officers. Upon entering, they saw the defendant standing in the living room. The officers patted down the defendant, took him outside, and read him his Miranda rights.

The police then took the defendant to the police station and placed him in an interrogation room. Approximately one and one-half hours passed before an officer came in and asked the defendant if he would give a statement. The defendant proceeded to give a statement in which he indicated that he bought the gun because he “wanted to be prepared,” that Googe took a small step backward after the defendant pointed the gun at him, that the defendant shot Googe the second time after Googe had turned to run. At trial, the defendant denied making these comments or asking for their inclusion in this statement.

At trial, the defendant admitted having shot Googe. His sole claim was that he was acting in self-defense when he fired the gun.

I

A

The defendant’s first claim on appeal is that the trial court erred in giving an instruction on flight as consciousness of guilt. The defendant contends that the issue of flight was irrelevant in this case because he admitted having shot Googe. He further contends that by giving an instruction on the irrelevant issue of flight the trial court allowed the jury to find him guilty without considering his claim of self-defense.

We note first that the defendant failed to preserve this claim properly in the trial court. We will review this claim for the first time on appeal, however, because it invokes the defendant’s constitutional right to present a defense. State v. Corchado, 188 Conn. 653, 660, 453 A.2d 427 (1982); State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973).

It has long been established that “ ‘ “[t]he flight of the person accused of crime is a circumstance which, when considered together with all the facts of the case, may justify an inference of the accused’s guilt. It does not raise a presumption of guilt.” . . .’ State v. Rosa, 170 Conn. 417, 433, 365 A.2d 1135 [1976].” (Citations omitted.) State v. Piskorski, 177 Conn. 677, 722-23, 419 A.2d 866, cert, denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979); see also United States v. Allen, 164 U.S. 492, 499, 17 S. Ct. 154, 41 L. Ed. 2d 528 (1896). Before a court gives an instruction on flight, however, the evidence of flight must be both relevant and probative. State v. Piskorski, supra, 723. “ ‘One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable.’ ” State v. Schaffer, 168 Conn. 309, 317, 362 A.2d 893 (1975).

We find that evidence of flight was relevant in this case even though the defendant admitted to shooting Googe. The evidence of flight introduced by the prosecutor tended to show that the defendant believed that what he had done was not merely an act of self-defense but, rather, was something that was considered wrong in the eyes of the law. While this evidence was not absolute proof of guilt, it was sufficient to allow the jury to infer a consciousness of guilt on behalf of the defendant. Therefore, we conclude that evidence of flight was admissible. B. Holden & J. Daly, Connecticut Evidence §67.

Since the evidence of flight was relevant, it was proper for the jury to consider it in its deliberations. In considering the evidence, the jurors were free either to reject it or to accept it as they saw fit. They were not required to find that the defendant was guilty merely because he fled. State v. Rosa, supra, 433. Accordingly, we find no merit in the defendant’s claim that the instruction on flight precluded the jury from considering the defendant’s claim of self-defense.

B

The defendant’s second claim of instructional error is that the trial court erred in refusing to give the defendant’s requested instruction that he had a right to go out in public and continue his legitimate business despite the threats of Googe. We disagree.

The record indicates that the defendant’s requested instruction on self-defense covered over five pages of text. Included in the defendant’s requested instruction was a statement that the fact that the defendant went out in public after learning of Googe’s threats did not necessarily make him the aggressor. The defendant also requested that the jury be instructed that he had a right to go out in public and continue his lifestyle despite the threats of Googe. The trial court denied the defendant’s request and proceeded to charge at length on the law of self-defense. The defendant took exception to the trial court’s denial of his request and to the subsequent charge on self-defense. When the trial court asked that the defendant provide some meaningful authority for his requested instruction, the defendant replied that he was relying on the “language at page 666” in State v. Corchado, supra. The trial court inspected the defendant’s citation and declined to amend its charge.

“When a proper request is filed pursuant to Practice Book § 852 or exception is taken pursuant to § 854 the test is whether the charge properly covered the substance of the written request or properly and adequately covered the specific subject matter of the exception.” State v. Kurvin, 186 Conn. 555, 561, 442 A.2d 1327 (1982). “ ‘[T]he charge must be considered from the standpoint of its effect on the jury in guiding them to a proper verdict.’ State v. Bell, 153 Conn. 540, 544, 219 A.2d 218 (1966).” State v. Williams, 182 Conn. 262, 269, 438 A.2d 80 (1980). “ ‘The trial court is not under a duty in a criminal proceeding to charge in the identical language requested if its charge is accurate, adequate and, in substance, properly includes material portions of the defendant’s request; its responsibility is performed when it gives instructions to the jury in a manner calculated to give them a clear understanding of the issues presented for their consideration, under the offenses charged and upon the evidence, and when its instructions are suited to their guidance in the determination of those issues.’ State v. Harden, 175 Conn. 315, 322-23, 398 A.2d 1169 (1978).” State v. Harrell, 199 Conn. 255, 269, 506 A.2d 1041 (1986); see also State v. Fuller, 199 Conn. 273, 279, 506 A.2d 556 (1986); State v. Timmons, 7 Conn. App. 457, 463, 509 A.2d 64 (1986). Viewing the trial court’s instructions against these standards, we find that the defendant’s claim is meritless.

With respect to the self-defense charge, the trial court began its instructions by reciting the pertinent parts of General Statutes § 53a-19. The court stated further that a self-defense claim was valid if an aggressor’s “act” created a reasonable belief that “danger was actual, real, imminent, or unavoidable.” The court went on to equate the “aggressor” with one who was actually “using or about to use deadly physical force.” The court then charged that the relevant inquiry was who was the aggressor, and that this determination depended upon what the defendant did during the actual confrontation.

The trial court’s instruction on self-defense, as noted above, was an adequate and accurate explanation of the law of self-defense. Further, the instruction sufficiently encompassed the defendant’s requests concerning his claim that he was not the aggressor. The defendant was not entitled to an instruction with the specific language he requested. “It is irrelevant that the court chose not to use the precise wording or language which the defendant requested if ‘ “the charge properly covered the substance of the written request.” ’ State v. Harrell, 199 Conn. 255, 269, 506 A.2d 1041 (1986); State v. Cooper, 182 Conn. 207, 211, 438 A.2d 418 (1980).” State v. Timmons, supra, 469. Our review of this claim indicates that the trial court’s instructions to the jurors as a whole fairly presented the case to them so that it is not reasonably possible that they were misled. State v. Corchado, supra 660.

II

The defendant’s next claim of error is that the trial court erred in denying his motion to suppress the statement he gave after his arrest. The defendant claims that the statement was the fruit of an illegal warrant-less arrest in that the consent given by the defendant’s mother to enter the house was not voluntary.

A warrantless entry into a home by the police to make a routine felony arrest is illegal, absent either exigent circumstances or consent. Payton v. New York, 445 U.S. 573, 577-78, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980); State v. Cardona, 6 Conn. App. 124, 134, 504 A.2d 1061 (1986). This rule is based on the principle that “[a]t the very core of the Fourth Amendment stands the right of the accused to retreat into his own home and there be free from unreasonable government intrusion.” Silverman v. United States, 365 U.S. 505, 511, 81 S. Ct. 679, 51 L. Ed. 2d 734 (1961). When an arrest is made after a warrantless entry, the state has the burden of proving either the existence of exigent circumstances or that consent to enter was obtained from one authorized to give consent. State v. Jones, 193 Conn. 70, 78-79, 475 A.2d 1087 (1984).

When the entry is justified on the basis of consent, the state has the additional burden of showing that the consent was voluntarily given. State v. Cobbs, 7 Conn. App. 656, 659, 510 A.2d 213 (1986). To be voluntary, consent must be the “free and unconstrained choice”; Schneckloth v. Bustamonte, 412 U.S. 218, 223, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973); of the one giving it, and it cannot be obtained by duress or coercion, express or implied. Id. Consent is more than just “a mere acquiescence to a claim of lawful authority.” Dotson v. Warden, 175 Conn. 614, 619, 402 A.2d 790 (1978). Whether consent is voluntary is “a question of fact to be determined from the totality of the circumstances.” Schneckloth v. Bustamonte, supra, 227. The trial court’s finding of consent must stand unless it is clearly erroneous. State v. Reddick, 189 Conn. 461, 469, 456 A.2d 1191 (1983).

The defendant concedes that the trial court could have found that consent was given in this case. The only question is whether that consent was the result of coercion or duress. We find that it was not.

The record reveals that on the night of the shooting, the defendant’s mother was at home with her daughter when her son arrived home. The defendant proceeded to tell his mother of the shooting. Mrs. Delgado then suggested that she and her son go to the police station. Thus, when the police arrived at the Delgado home a short while later, it is unlikely that Mrs. Delgado was unaware of their purpose.

When the police arrived, only two of the officers approached the door. One of the officers identified himself as a member of the police force and requested permission to enter. It is true that the officer did not advise Mrs. Delgado of her right to refuse entry, but it has been held that “such advice is not a prerequisite to a voluntary consent.” State v. Van Der Werff, 8 Conn. App. 330, 341, 513 A.2d 154 (1986), citing Schneckloth v. Bustamonte, supra, 248-49. We cannot say, given these facts, that under the “totality of the circumstances” the consent given by the defendant’s mother was not voluntary.

Ill

The defendant’s next assignment of error involves the trial court’s refusal to permit the defendant to cross-examine the victim regarding prior criminal offenses. The defendant claims that the court’s ruling violated his constitutional right of confrontation in that such cross-examination was essential to his claim of self-defense.

At trial, the defendant sought to cross-examine the victim about a prior conviction for robbery, several prior convictions for breach of peace, a pending charge of breach of peace, and the fact that the victim carried a knife. The defendant argued that such evidence was probative of the victim’s violent nature, and was, therefore, admissible. After an objection by the prosecution, the trial court ruled that the victim could be cross-examined about both the robbery conviction and the fact that he carried a knife. The trial court, however, prohibited cross-examination on the other matters.

Ordinarily, upon a showing of a proper foundation for a claim of self-defense, the “defendant may introduce evidence of the violent character of the victim .... State v. Miranda, 176 Conn. 107, 405 A.2d 622 (1978).” State v. Delgado, 8 Conn. App. 273, 286, 513 A.2d 701 (1986). Before evidence of the victim’s character is admissible, however, the defendant must make a showing that the proffered evidence is relevant to his propensity for violence. State v. Delgado, supra, 281.

In this case, the trial court ruled that a proper foundation had been laid for the defendant’s claim of self-defense. The trial court found, however, that the evidence concerning the defendant’s breach of peace violations was not relevant to the issue of self-defense. We agree.

With regard to the breach of peace convictions, we note that it is possible to commit the crime of breach of peace, as that crime is defined in General Statutes § 53a-181, without engaging in violent behavior. We note further that the defendant made no showing in this case that the victim’s convictions of breach of peace were the result of violent behavior. We find, therefore, that the victim’s convictions did not indicate a propensity for violence. Absent a showing that it tends to indicate a propensity for violence, a misdemeanor conviction for breach of peace has no relevance in this case.

With regard to the then pending charge of breach of peace, we find that it too was inadmissible. First, we note that a mere arrest is indicative of nothing. The fact of an arrest is as consistent with innocence as it is with guilt. 3A J. Wigmore, Evidence (Chadbom Rev.) § 980a; see Lawrence v. Kozlowski, 171 Conn. 705, 711-12 n.4, 372 A.2d 110 (1976), cert, denied, 431 U.S. 969, 97 S. Ct. 2930, 53 L. Ed. 2d 1066 (1977). Second, we note that evidence of the facts underlying the arrest were adduced later in the trial. The defendant had the opportunity to call the victim as his own witness and question him as to that incident. Accordingly, we find no error in the court’s restriction of the defendant’s cross-examination of the victim.

IV

The defendant’s final claim is that he was prejudiced in the preparation of his defense because the trial court allowed the state to amend the information only one week before the commencement of trial. After affording this claim the appropriate scope of review, we find that it is completely without merit. State v. Ramos, 176 Conn. 275, 279, 407 A.2d 952 (1978); State v. Huff, 10 Conn. App. 330, 345, 523 A.2d 906 (1987).

There is no error.

In this opinion the other judges concurred.

         The court’s instruction on flight was as follows: “We also have testimony that immediately after the incident the defendant left the scene. The conduct of a person in leaving the scene of a crime, if proven that he was, in fact, at the scene, may be considered in determining the guilt, since if unexplained it tends to prove a consciousness of guilt. The flight of the person accused of a crime is a circumstance which when considered together with all the facts of the case may justify an inference of the accused’s guilt. However, flight, if shown, is not conclusive. Flight is to be given the weight to which the jury thinks it is entitled under the circumstances shown. Whether the action of the defendant in the present case in leaving the scene of the incident on Blue Hills Avenue is such as to indicate flight, and the weight to be given to such action in determining guilt, if you find it to constitute flight, is for you, the jury, to decide.”

       The fourth amendment prohibitions against unreasonable searches and seizures were made applicable to the states via the fourteenth amendment to the United States constitution in the case of Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961). The defendant also claims that the entry was made in violation of his rights under article I, § 7 of the Connecticut constitution. As was noted in State v. Zindros, 189 Conn. 228, 456 A.2d 288 (1983), cert, denied, 465 U.S. 1012, 104 S. Ct. 1014, 79 L. Ed. 2d 244 (1984), the protection afforded under article I, § 7 of the Connecticut constitution is commensurate with that afforded by the fourth amendment.

       General Statutes § 53a-181 (a) provides in relevant part: “A person is guilty of breach of peace when, with intent to cause inconvenience, annoyance or alarm, or recklessly creates a risk thereof, he: (1) engages in fighting or in violent, tumultuous or threatening behavior in a public place; or (2) assaults or strikes another; or (3) threatens to commit any crime against another person or his property; or (4) publicly exhibits, distributes, posts up or advertises any offensive, indecent or abusive matter concerning any person; or (5) in a public place, uses abusive or obscene language or makes an obscene gesture; or (6) creates a public, hazardous or physically offensive condition by any act which he is not licensed or privileged to do.”


source: Caselaw Access Project

author: Bieluch, J.

license: Public Domain

text:
    Housing Authority of the Town of East Hartford v. Elizabeth Hird
    (5334)
    Spallone, Bieluch and Stoughton, Js.

      Argued October 14, 1987 —
    decision released January 5, 1988

      Bruce J. Batts, with whom, on the brief, was Geoffrey Plank, for the appellant (defendant).

      Ralph J. Alexander, with whom, on the brief, was Michael E. Wolf, for the appellee (plaintiff).
   Bieluch, J.

This is an appeal by a tenant from a judgment of possession for her landlord in a summary process action based on nonpayment of rent. The tenant, the defendant Elizabeth Hird, claims that the trial court erred by concluding that a rental agreement existed between the parties in January, 1986. In addition, the defendant maintains that even if a rental agreement did exist, the court erroneously concluded that she was not excused from a duty to tender rent for January, 1986. We find no error.

The facts are undisputed. The parties executed a written lease on January 9,1981, for the rental of an apartment in Veterans Terrace, East Hartford. The lease was for only a one month term beginning February 1, 1981, but provided for automatic renewals for successive one month terms until termination by either party. Paragraph 9 of the lease provided for automatic termination and immediate possession by management if any rent was in arrears and unpaid for a period of ten days after becoming due, or if the tenant defaulted or failed to comply with its covenants, or if the tenant vacated the premises.

On June 7, 1985, the defendant was sent a written notice of proposed eviction by the plaintiff pursuant to General Statutes § 47a-15. The notice alleged that the defendant had violated the lease by maintaining the premises in an unsanitary condition and by keeping pets on the premises. On July 15,1985, the defendant was served with a statutory notice to quit possession. This supplemented the prior written notice to correct breach of lease and alleged the same lease violations for eviction. It also recited the following: “Notice: All payments made by you, on or after the date of this notice, shall be accepted as Use and Occupancy Only without prejudice to the Housing Authority of East Hartford’s right to evict you.” A subsequent summary process action ended with judgment for the defendant on November 6, 1985.

A second notice to quit possession was served on the defendant on November 15, 1985. This notice alleged as the reason for eviction “nonpayment of rent for the month of November.” This second eviction notice contained the same advisory language as the July 15,1985 notice that all future payments would be accepted only as use and occupancy payments. The summary process action based on this second notice to quit possession was withdrawn on January 29,1986, in response to the defendant’s filing of a motion to dismiss the action for failure to comply with applicable federal regulations. While this action was pending, however, the defendant’s counsel sought to make arrangements for the reinstatement of the defendant as a tenant. The plaintiff refused such consideration and advised the counsel that the defendant owed the plaintiff a total of $1497.60, including $1224 for rent as of January 6, 1986. The defendant had in fact stopped paying rent in July of 1985, making only one payment of $250 on November 20,1985, which the trial court characterized as a “payment on account.”

On January 31,1986, the defendant was served with a third notice to quit possession. This notice claimed as the plaintiff’s reason for eviction “nonpayment, month of: January, 1986.” The plaintiff’s amended two count complaint alleged in the first count that the parties had entered into an automatically renewable month-to-month written lease on January 9, 1981, under which the defendant was still in possession of the leased premises. The second count of the complaint alternatively alleged that the parties’ relationship as lessor and lessee existed under a parol month-to-month lease. The defendant by special defense denied that any lease was in effect in January, 1986, and claimed, therefore, that she could not “be evicted for nonpayment of rent for that month.”

The trial court rendered judgment of possession for the plaintiff, ruling that the defendant “was then occupying her apartment under her lease as a tenant at will” in January, 1986. Consequently, she had a duty to tender rent for that month’s tenancy, which she breached. This appeal followed.

The defendant’s first claim on appeal is that the trial court erred in concluding that a rental agreement existed between the parties on January 1, 1986. Specifically, the defendant argues that the court erred in holding that the written rental agreement entered into on January 9,1981, had not been terminated, since the summary process action initiated in July of 1985 terminated with judgment for the defendant on November 6, 1985, and the second summary process action was withdrawn on January 29, 1986.

The trial court found that the defendant was occupying her apartment under her lease as a tenant at will on January 1,1986, because the judgment rendered on November 6,1985, in the defendant’s favor did not terminate the lease, and, therefore, had “revived” the original lease arrangement, and because the eviction action following the November 15, 1985 notice to quit possession having been withdrawn, had no legal effect or consequence on the preexisting lease between the parties. We agree with the trial court’s holding.

Summary process is a statutory remedy which enables a landlord to recover possession of rental premises from the tenant upon termination of a lease. General Statutes § 47a-23. It is preceded by giving the statutorily required notice to quit possession to the tenant. Webb v. Ambler, 125 Conn. 543, 552-53, 7 A.2d 228 (1939). Service of a notice to quit possession is typically a landlord’s unequivocal act notifying the tenant of the termination of the lease. The lease is neither voided nor rescinded until the landlord performs this act and, upon service of a notice to quit possession, a tenancy at will is converted to a tenancy at sufferance. Mayron’s Bake Shops, Inc. v. Arrow Stores, Inc., 149 Conn. 149, 156, 176 A.2d 574 (1961); Chapel-High Corporation v. Cavallaro, 141 Conn. 407, 411, 106 A.2d 720 (1954); Bushnell Plaza Development Corporation v. Fazzano, 38 Conn. Sup. 683, 686, 460 A.2d 1311 (1983). It is necessary to prove the allegations of the notice to quit possession in order to obtain a judgment for possession.

Service of the July 15,1985 notice to quit possession upon the defendant was an explicit act by the plaintiff in recognition of the existence of the defendant’s lease. When the November 6, 1985 judgment was rendered in favor of the defendant in the subsequent summary process action, the trial court had determined thereby that the defendant had not committed the lease violations alleged by the plaintiff in the underlying notice and complaint. The court’s decision then that the plaintiff was not entitled to possession was necessarily predicated upon a finding that the lease had not been terminated and that the defendant continued to have a valid lease on November 6, 1985. The service of the notice to quit possession on July 15,1985, did not compromise the tenant rights of the defendant because the subsequent trial and judgment on the merits in the summary process action predicated on this notice did not uphold the allegations of the complaint asserting the termination of the lease by this notice to quit possession. The trial court, therefore, correctly concluded that the defendant’s lease survived the judgment of November 6, 1985, in her favor. The parties were returned to their status quo before July 15, 1985, by this judgment.

Of similar import is the subsequent summary process action predicated upon the notice to quit possession served on November 15,1985. After the defendant filed a motion to dismiss that action based on noncompliance with applicable federal regulations, the plaintiff on January 29, 1986, withdrew this summary process action pursuant to its statutory right. General Statutes § 52-80. Marrinan v. Hamer, 5 Conn. App. 101,103, 497 A.2d 67 (1985). We conclude that the defendant’s lease also survived this summary process action because of its withdrawal by the plaintiff before a hearing and judgment thereon. The right of a plaintiff to withdraw his action before a hearing on the merits, as allowed by § 52-80, is absolute and unconditional. Under our law, the effect of a withdrawal, so far as the pendency of the action is concerned, is “strictly analogous to that presented after the rendition of a final judgment or the erasure of a case from the docket.” Lusas v. St. Patrick’s Roman Catholic Church Corporation, 123 Conn. 166, 170, 193 A. 204 (1937); Salonia v. Salonia, 16 Conn. Sup. 86, 88 (1949). The withdrawal of the summary process action on January 29, 1986, effectively erased the court slate clean as though the eviction predicated on the November 15,1985 notice to quit possession had never been commenced. The plaintiff and the defendant were “back to square one,” and the continuation of their lease of January 9, 1981, was restored.

The defendant also maintains that even if the rental agreement did exist in January, 1986, the court erroneously concluded that she was not excused from her obligation to tender rent for that month. The defendant argues that the lease automatically terminated prior to January, 1986, under its own provisions for such termination if rent was unpaid for a period of more than ten days. The defendant also claims that the plaintiffs anticipatory breach when it refused to reinstate her as a tenant on January 7,1986, excused her from the obligation to tender and pay rent for that month. We disagree.

The statutory obligations of the landlord and tenant continue even when there is no longer a rental agreement between them. Termination of the lease does not terminate the tenancy since, upon service of a notice to quit possession, a tenancy at sufferance is created. Rivera v. Santiago, 4 Conn. App. 608, 610, 495 A.2d 1122 (1985); Bushnell Plaza Development Corporation v. Fazzano, supra. Even though a tenant at sufferance is excused from a duty to pay the stipulated rent under the lease, the obligation to pay a fair rental value for the use and occupancy of the dwelling unit remains. Lonergan v. Connecticut Food Store, Inc., 168 Conn. 122, 131, 357 A.2d 910 (1975); Rivera v. Santiago, supra. Therefore, even if the defendant believed that the lease had ended and that she was relieved from a duty to pay a stipulated rent, her obligation to pay for her use and occupancy of the premises continued. Her failure to pay rent or a fair rental value for use and occupancy for the month of January, 1986; General Statutes § 47a-3c; authorized the plaintiff to issue a notice to quit possession under the provisions of General Statutes § 47a-23 (a) preliminary to an action for summary process.

When the defendant requested reinstatement as a tenant during the pendency of the second eviction action, the plaintiff replied through its attorney on January 7,1986, that “the Housing Authority does not wish to have Ms. Hird as a tenant any longer and has instructed me to obtain a judgment of possession as soon as legally possible.” The defendant’s claim that this was an anticipatory breach excusing her from payment of rent for that month ignores the further statement in the referenced letter that “Ms. Hird owes $1,224 for rent as of January 6, 1986; [together with fees of $273.60] for a total of $1,497.60.” The court, citing Mayron’s Bake Shops, Inc. v. Arrow Stores, Inc., supra, 156, found that this letter “was not such an unequivocal declaration that tender would be refused so as to excuse any attempt at production.” We will not disturb that finding of the trial court. It is not clearly erroneous in view of the evidence and pleadings. See Practice Book § 4061; Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

There is no error.

In this opinion the other judges concurred.

       The lease provided in relevant part: “This lease shall be automatically renewed for successive terms of one month each, at the rental of One Hundred Fifty-One Dollars ($151.00) per month, or at such monthly rental as the Management shall determine in accordance with its rules and regulations, payable in advance on the first day of each calendar month, until terminated as herein provided. The rental herein stipulated shall continue for each successive term until Tenant is notified in writing by Management of an adjustment in the amount of the monthly rental, in which case, Tenant shall pay said adjusted rental on the first day of the month following the date of said notice. The Management may terminate this tenancy at any time by giving Tenant not less than Thirty (30) days prior notice in writing and said tenancy shall terminate on the day provided for in said notice, but this provision shall not apply to Paragraph 4(a) or Paragraph 9. Tenant may terminate this tenancy at any time by giving Management not less than Fifteen (15) days prior notice in writing and said tenancy shall terminate on the day provided for in said notice; and in such case, any unearned rent paid by Tenant and held by Management on the date of quitting possession shall be refunded to Tenant.”

       Paragraph 9 of the lease provided: “If any rent shall be in arrears and unpaid for a period of Ten (10) days after the same shall be and become due and payable as aforesaid, or if Tenant shall default in or fail to comply with any of the covenants herein contained on his part to be kept and fulfilled, excepting where otherwise provided, or if the Tenant executing this lease shall vacate the premises, then and in any such event, this lease shall terminate automatically, and Tenant agrees that Management shall be entitled to immediate possession of said premises without any previous demand or notice whatsoever.”

       General Statutes (Rev. to 1985) § 47a-15 provides in relevant part: “Except in the case in which the landlord elects to proceed under sections 47a-23 to 47a-23b, inclusive, to evict based on nonpayment of rent or based on conduct by the tenant which is illegal, if there is a material noncompliance with section 47a-ll which materially affects the health and safety of the other tenants or materially affects the physical condition of the premises, or if there is a material noncompliance by the tenant with the rental agreement or a material noncompliance with the rules and regulations adopted in accordance with section 47a-9, the landlord may deliver a written notice to the tenant specifying the acts or omissions constituting the breach and that the rental agreement shall terminate upon a date not less than thirty days after receipt of the notice.”

       Because of federal housing assistance payments under contract with the owner, the apartment development where the defendant resides is governed for purposes of summary process by 24 C.F.R. § 881.607.

       General Statutes § 52-80 provides in relevant part: “The plaintiff may withdraw any action so returned to and entered in the docket of any court, before the commencement of a hearing on the merits thereof.”

       General Statutes § 47a-23 provides in relevant part: “notice to quit possession of premises, form, service, (a) When a rental agreement or lease of any land or building or of any apartment in any building, or of any dwelling unit . . . whether in writing or by parol, terminates by lapse of time, or by reason of any expressed stipulation therein ... or where one originally had the right or privilege to occupy such premises but such right or privilege has terminated, and the owner or lessor, or his legal representatives, or his attorney-at-law, or in-fact, desires to obtain possession or occupancy of the same, at the termination of the rental agreement or lease, if any, or at any subsequent time, he or they shall give notice to the lessee or occupant to quit possession of such land, building, apartment or dwelling unit, at least eight days before the termination of the rental agreement or lease, if any, or before the time specified in the notice for the lessee or occupant to quit possession or occupancy.”


author: Borden, J.

text:
    Spectrum of Connecticut, Inc. v. Planning and Zoning Commission of the Town of Ellington
    (5370)
    Borden, Bieluch and O’Connell, Js.
    Argued November 12, 1987 —
    decision released January 5, 1988

      Susan Boyan, with whom, on the brief, was Atherton B. Ryan, town attorney, for the appellant (defendant).

      Martin A. dayman, with whom was Holly Abery-Wetstone, for the appellee (plaintiff).
   Borden, J.

The planning and zoning commission of the town of Ellington (commission) appeals from the judgment of the trial court granting the appeal of Spectrum of Connecticut, Inc. (Spectrum), from a decision of the commission denying Spectrum’s application to renew a special permit to operate a game room. The commission contends that the trial court erred (1) in concluding that the denial of a special permit was unwarranted because it imposed an unauthorized semi-policing obligation on Spectrum, and (2) in holding that there was no evidence presented to the commission to support its denial of the special permit renewal application. We find error.

The facts relevant to this appeal are as follows: Spectrum owns and operates a video arcade located in a shopping center in Ellington. The shopping center is in a commercial zone. Ellington zoning regulations require a special permit to operate an amusement enterprise, such as a video arcade, in a commercial zone.

On July 1, 1983, Spectrum was granted a one year special permit to use its location as a game room, subject to the condition, among others, that it “shall control loitering and other nuisance occurrences from the public which may disrupt the quiet enjoyment of area residents and other businesses occupying the shopping center.” Spectrum did not challenge the validity of this condition.

In 1984, Spectrum applied for renewal of its special permit. At a public hearing before the commission, testimony was adduced from nearby business owners and residents concerning noise, litter, vandalism, loitering and use of drugs and alcohol in the shopping center by patrons of Spectrum. The commission unanimously denied the application for the renewal of the special permit on the ground that Spectrum “failed to control loitering and nuisances which have disrupted the quiet enjoyment of neighbors and the other businesses in the area.”

Spectrum appealed the commission’s decision to the Superior Court. The court sustained the appeal, holding that the commission could not “impose a semi-policing obligation upon a special permit applicant,” and that “there was no evidence presented to the commission from which [it] could conclude that [Spectrum] created or maintained any nuisance or supported any loitering.” We granted certification for appeal to this court.

I

The commission first claims that the court erred because Spectrum did not appeal the 1983 special condition requiring it to control loitering and nuisances, and therefore the validity of that condition was not an issue before the trial court in this case. We agree.

When Spectrum applied for renewal of its special permit in 1984, it did so with full knowledge that attached to the special permit was a condition requiring it to control “loitering and other nuisance occurrences.” Of critical significance here is the fact that after accepting the conditions imposed in 1983 without legal challenge, Spectrum sought a renewal of the special permit which included those conditions. Spectrum did not contest the imposition of the conditions before the commission with respect to the renewal of the permit. Just as a party may not ordinarily ask for a certain result and then challenge its validity on appeal; State v. Weidenhof, 205 Conn. 262, 275, 533 A.2d 545 (1987); State v. Gonzalez, 13 Conn. App. 40, 43, 534 A.2d 623 (1987); see also Giulietti v. Connecticut Ins. Placement Facility, 205 Conn. 424, 429, 534 A.2d 213 (1987); a party may not challenge on appeal the validity of a preexisting condition to a special permit which it seeks to renew. Having failed to challenge it when it was imposed, Spectrum was in no position to contest the validity of the condition when the commission evaluated Spectrum’s renewal application by looking to its noncompliance with the condition.

Spectrum, citing Parish of St. Andrews Church v. Zoning Board of Appeals, 155 Conn. 350, 354, 232 A.2d 916 (1967), argues that an unauthorized condition upon a special permit is void, and therefore any denial of the renewal of a permit based upon a failure to comply with that condition is arbitrary, capricious and unreasonable. The Parish of St. Andrews Church decision is distinguishable. That case involved a direct challenge to a condition attached to a special permit. Here, Spectrum accepted the condition imposed upon its special permit and acquiesced in the validity of that condition by its application for renewal. Spectrum has not directed our attention to any case in which a special permit condition was declared void in a similar collateral attack on its validity. Finally, we note that if we held otherwise, and allowed an applicant to challenge the validity of a special permit condition which was not questioned until after the applicant’s noncompliance, a special permit applicant would have it both ways, making the system of land use regulation contemplated by General Statutes § 8-2 impractical and unworkable.

II

The trial court also concluded that there was no evidence that Spectrum “created or maintained any nuisance or supported any loitering.” This conclusion was not justified.

“ ‘Courts are not to substitute their judgment for that of the board . . . and decisions of local boards will not be disturbed so long as honest judgment has been reasonably and fairly exercised after a full hearing. . . . “Upon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons.” ’ (Citations omitted.) Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 654, 427 A.2d 1346 (1980). Since the ‘credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency’; Feinson v. Conservation Commission, 180 Conn. 421, 425, 429 A.2d 910 (1980); the court must determine the correctness of the conclusions from the record on which they are based. Housatonic Terminal Corporation v. Planning & Zoning Board, 168 Conn. 304, 306, 362 A.2d 1375 (1975).” Torsiello v. Zoning Board of Appeals, 3 Conn. App. 47, 49-50, 484 A.2d 483 (1984).

“Where a zoning authority has stated the reasons for its action, a reviewing court may only determine if the reasons given are supported by the record and are pertinent to the decision. Goldberg v. Zoning Commission, 173 Conn. 23, 25-26, 376 A.2d 385 (1977) ... The decision of a zoning authority will only be disturbed if it is shown that it was arbitrary, illegal or an abuse of discretion. Beit Havurah v. Zoning Board of Appeals, 177 Conn. 440, 444, 418 A.2d 82 (1979).” Id., 50.

The commission’s decision was based upon a finding that Spectrum failed to control loitering and nuisances by its patrons which disrupted the quiet enjoyment of nearby residents and businesses. The issue of whether Spectrum “created” or “supported” those activities was not relevant to an evaluation of the commission’s conclusion. The evidence presented to the commission amply supported its determination that Spectrum had failed to control, or even attempt in good faith to control, the disruptive behavior of its patrons. In passing upon an application for a special permit, Ellington zoning regulations mandate the commission to consider, inter alia, “the need for the proposed use; existing and future character of the neighborhood . . . and protection of neighborhood property values. ...” Ellington Zoning Regulation 4.1 (f). Having concluded that Spectrum had not fulfilled a condition of its special permit and had failed to control the objectionable conduct of its patrons, the commission’s conclusion was based on the evidence before it and was properly guided by the standards set forth in the applicable statutes and regulations.

There is error, the judgment is set aside and the case is remanded to the trial court with direction to dismiss the appeal of the plaintiff.

In this opinion the other judges concurred.

       The commission enumerated other reasons for its decision to deny renewal of the special permit. The trial court concluded that these other reasons could not support the decision of the commission. The commission does not challenge the trial court’s conclusion in this regard. Since the commission’s decision must be upheld if supported by any one reason given; Hoagland v. Zoning Board of Appeals, 1 Conn. App. 285, 290, 471 A.2d 655 (1984); and since the commission contests the trial court’s conclusion only with respect to the validity of the commission’s action based on its finding that Spectrum failed to control loitering and nuisances, our review is limited to this issue.


author: Per Curiam.

text:
    Paul Colburn et al. v. Zoning Commission of the Town of Marlborough
    (5856)
    Spallone, Bieluch and Stoughton, Js.
    Argued December 16, 1987 —
    decision released January 5, 1988

      Philip M. Block, for the appellants (plaintiffs).

      Eugene Scalise, Jr., for the appellee (defendant).
   Per Curiam.

The plaintiffs are appealing the judgment of the trial court dismissing their administrative appeal.

The plaintiffs’ citation, as it appears in the appeal to the Superior Court, is incorrect as it directed the sheriff to serve “the chairman or clerk of that commission or .. . the Town Clerk of Marlborough.” General Statutes § 8-8 (b) provides that notice shall be given by serving “the chairman or clerk of said board, and by serving . . . the clerk of the municipality.” (Emphasis added.) Such failure of the appeal to conform to the mandate of General Statutes § 8-8 (b) renders it subject to dismissal. Simko v. Zoning Board of Appeals, 205 Conn. 413, 418, 533 A.2d 879 (1987).

There is no error.


text:
    State of Connecticut v. Helen Smith Wilson, Administratrix (Estate of William Smith)
    (5529)
    Spallone, Bieluch and Stoughton, Js.
    Argued December 16, 1987 —
    decision released January 5, 1988

      Marc Ford Greene, with whom, on the brief, was F. Woodward Lewis, Jr., for the appellant (defendant).

      Patricia M. Strong, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellee (state).
   Per Curiam.

The defendant administratrix of the estate of William Smith appeals from the judgment of the trial court dismissing her counterclaim.

Our study of the record, transcripts and briefs, along with our review of applicable law, fails to disclose that the trial court abused its discretion in concluding that the defendant’s counterclaim presented substantially different issues of fact and law. Nor does our study show that separate trials would require almost no duplication of effort. See, e.g., Conservation Commission v. Price, 193 Conn. 414, 433, 479 A.2d 187 (1984); Wallingford v. Glen Valley Associates, Inc., 190 Conn. 158, 161, 459 A.2d 525 (1983); Jackson v. Conland, 171 Conn. 161, 166-67, 368 A.2d 3 (1976).

There is no error.


text:
    Ronnie Maebry v. William McNeil et al.
    (5281)
    Daly, Norcott and Foti, Js.
    Submitted on briefs November 19, 1987 —
    decision released January 5, 1988

      Max F. Brunswick filed a brief for the appellants (defendants).

      David M. Lesser and William H. Clendenen, Jr., filed a brief for the appellee (plaintiff).
   Per Curiam.

This is an appeal by the defendants from a judgment rendered after a trial to the court which resulted in an award of damages to the plaintiff. The defendants claim that there was insufficient evidence to support the trial court’s findings (1) that the fire in question was caused by a defective furnace under the control of the defendants, and (2) that the fire was the proximate cause of the plaintiff’s injuries. We find no error.

The court could reasonably have found the following facts. In 1983, the defendants owned a building at 97-99 Sheffield Avenue, New Haven. The plaintiff was the first floor tenant with other tenants occupying the second and third floors. The basement of the building contained three furnaces; each furnace supplied heat to an apartment on one of the floors.

On the evening of November 16, 1983, at approximately 10 p.m., a fire started in the basement of the building. The plaintiff, in an attempt to extinguish the fire, repeatedly poured water through a broken window in the basement. As a consequence of these efforts, the plaintiff sustained severe injuries to his right wrist and hand. The plaintiff required surgical treatment for his injuries, and remains permanently scarred.

The court found that the cause of the fire was a defective furnace, which the defendants negligently maintained. The court concluded that an excessive amount of fuel was brought into the furnace’s chamber before ignition, and when the fuel finally ignited, an explosion resulted which caused the fire.

The defendants’ first claim is that there was insufficient evidence to support a finding that their negligence caused the fire. At trial, the named defendant, William McNeil, testified that the fire was started by the furnace for the second floor apartment and that it was the defendants’ responsibility to maintain the furnace. In addition, two members of the New Haven fire department testified that the fire had started because of a faulty fuel gun in the furnace.

“[T]he issues of negligence and contributory negligence are ordinarily ones of fact. See Pisel v. Stamford Hospital, 180 Conn. 314, 331, 430 A.2d 1 (1980); Salvatore v. Milicki, 163 Conn. 275, 279, 303 A.2d 734 (1972).” Trzcinski v. Richey, 190 Conn. 285, 295, 460 A.2d 1269 (1983). We will not disturb the factual findings of the court unless they are clearly erroneous; Rodriguez v. New Haven, 183 Conn. 473, 476-77, 439 A.2d 421 (1981); nor will we substitute our judgment for that of the trier. State v. Navikaukas, 12 Conn. App. 679, 683, 533 A.2d 1214 (1987). Here, there was ample evidence to support the court’s conclusion that the fire resulted from the defendants’ negligence.

The defendants’ second claim is that the trial court erred in finding the fire was the proximate cause of the plaintiff’s injuries. Our Supreme Court has held that an appellate court cannot find facts nor draw conclusions from primary facts found, but can only review such findings to see whether they might be legally, logically and reasonably found. Appliances, Inc. v. Yost, 186 Conn. 673, 676-77, 443 A.2d 486 (1982); Brody v. Dunnigan, 162 Conn. 605, 608, 291 A.2d 227 (1971); Waterford v. Grabner, 155 Conn. 431, 434, 232 A.2d 481 (1967); Wiegert v. Pequabuck Golf Club, Inc., 150 Conn. 387, 391, 190 A.2d 43 (1963). “It is well settled that it is the province of the trier of fact to weigh the evidence presented and to determine its credibility and effect. Hally v. Hospital of St. Raphael, 162 Conn. 352, 359, 294 A.2d 305 (1972).” Reynolds v. Ramos, 188 Conn. 316, 320, 449 A.2d 182 (1982).

The issue of proximate cause is ordinarily a question of fact for the trier. The test for finding proximate cause is whether the harm which occurred was a foreseeable risk created by the defendants’ negligence. Tetro v. Stratford, 189 Conn. 601, 605, 458 A.2d 5 (1983).

The trial court found that the defendants’ negligence caused the fire. It also found that the plaintiff’s injuries were the proximate result of the fire. Finally, the court concluded that the plaintiff had acted reasonably under the circumstances in attempting to extinguish the fire.

In this case the factual findings of the court were supported by the evidence.

There is no error.


author: Stoughton, J.

text:
    Jason Pearl v. Norman Nelson
    (5412)
    Dupont, C. J., Spallone and Stoughton, Js.
    Submitted on briefs September 14, 1987 —
    decision released January 5, 1988

      Joseph Neiman filed a brief for the appellant (defendant).

      Robert L. Hirtle, Jr., and Randall Hayes filed a brief for the appellee (plaintiff).
   Stoughton, J.

This is an action seeking payment for legal services rendered to the defendant. The defendant filed a counterclaim alleging malpractice by the plaintiff. Judgment was rendered after verdicts for the plaintiff on his complaint and on the defendant’s counterclaim. The defendant appealed to this court. We find no error.

The defendant retained the services of the plaintiff, a member of the Connecticut bar, on July 13,1984, to obtain a dissolution of his marriage and a property settlement. The plaintiff instituted an action for dissolution and, on December 17, 1984, dissolution was obtained. The defendant paid the plaintiff $1973.42 for legal services and disbursements, but refused to pay the balance of the plaintiff’s final bill of $15,000. Thereupon, the plaintiff brought this action in three counts against the defendant seeking payment. The plaintiff alleged in his complaint that he had rendered professional services the value of which was $15,000 and that $13,200 was then still owing, that he had relied upon a promise by the defendant to pay for the services rendered, and that the defendant had been unjustly enriched. The defendant’s counterclaim, sounding in malpractice, sought the return of the sums paid as fees, and other damages. He alleged that he had instructed the plaintiff to obtain a dissolution upon the ground of desertion, that the plaintiff had instead sought a dissolution on the ground of irretrievable breakdown, and that this had resulted in a costly property settlement.

The jury returned a general verdict on the complaint for the plaintiff in the amount of $11,000. On the counterclaim, the trial judge directed a verdict in favor of the plaintiff.

The defendant has briefed three claims of error. His claims are (1) that the court erred in allowing expert testimony as to the reasonable value of the services rendered instead of limiting the evidence to a determination of the contract price, (2) that the court erred in failing to charge on breach of contract when the counterclaim alleged such a breach along with a claim of malpractice, and (3) that the court erred in ruling that an expert witness is required in a legal malpractice case based upon an alleged breach of contract and in directing a verdict because such an expert was not produced by the defendant.

The agreement between the parties concerning the fee to be charged, as stated in the defendant’s reply brief, provided: “$1,000 plus expenses if the suit were not contested and either ‘more’ if Mr. Pearl’s version is believed or ‘a little more’ if Mr. Nelson’s version prevails in the trier’s mind.” It is apparent that the action for dissolution of marriage was not tried as an uncontested matter and, thus, that the agreement between the parties did not fix the amount of the fee. Counsel for the plaintiff called, as an expert witness, a practicing lawyer, whose qualifications were admitted, to testify as to the reasonableness of the fee charged. Counsel for the defendant objected that the complaint did not claim recovery in quantum meruit and that the contract controlled the amount of the fee. The complaint did seek recovery in quantum meruit. The trial court allowed the testimony on the question of the reasonableness of the fee, and we find no error in the ruling of the court. Courts have a general knowledge of what would be a reasonable attorney’s fee for services which are fairly stated and described; Appliances, Inc. v. Yost, 186 Conn. 673, 680, 443 A.2d 486 (1982); but the subject is not one which is within the ordinary knowledge and experience of jurors. When recovery is sought under a contract which provides for payment of reasonable attorney’s fees, an evidentiary showing of reasonableness is required. Id. Here, there was an agreement for services to be performed and, since the fee was not fixed, the agreement contemplated a reasonable fee.

The defendant’s counterclaim asserts a cause of action for malpractice based in part on allegations of breach of contract in failing to follow instructions. The defendant claims that the court erred in failing to charge the jury with respect to the breach of contract claim. Because the court directed a verdict on the counterclaim, there was no charge given. The defendant claims that he had instructed the plaintiff to allege desertion as a ground for dissolution, but that the plaintiff instead alleged irretrievable breakdown and therefore breached his contract. The plaintiff, however, had amended the complaint in the dissolution action to allege desertion. The trial court did not err, therefore, in directing the verdict as to the breach of contract aspect of the counterclaim.

The defendant also based his counterclaim on the alleged lack of professional skill on the part of the plaintiff. It is well settled that expert testimony is required in a medical malpractice case to establish the standard of proper professional skill or care; Shelnitz v. Greenberg, 200 Conn. 58, 66, 509 A.2d 1023 (1986); except in cases of gross want of care or skill. There is no reason for a different rule where legal malpractice is claimed. See Dunham v. Dunham, 204 Conn. 303, 317, 528 A.2d 1123 (1987). This was not a case of such gross want of care or skill as to make it unnecessary to present expert testimony. Therefore, the trial court properly directed the verdict as to the defendant’s assertion of legal malpractice in his counterclaim.

There is no error.

In this opinion the other judges concurred.


text:
    Connecticut Bank and Trust Company v. Sylvan Katske et al.
    (5218)
    Daly, Norcott and Foti, Js.
    Argued December 8, 1987 —
    decision released January 5, 1988

      William H. Clendenen, Jr., with whom, on the brief, was Robert F. Carter, for the appellants (named defendant et al.).

      Mary E. Holzworth, for the appellee (plaintiff).
   Per Curiam.

This is an appeal by the defendants from a judgment of strict foreclosure in favor of the plaintiff on a mortgage securing a guaranty on a note in the principal amount of $218,700. The defendants asserted special defenses alleging unconscionable acts and violations of the Connecticut Unfair Trade Practices Act by the plaintiff.

The sole issue of this appeal is whether the trial court erred in finding that the defendants had failed to sustain their burden of proof on the special defenses.

The trial court filed a detailed memorandum of decision; Connecticut Bank & Trust Co. v. Katske, 40 Conn. Sup. 560, 535 A.2d 836 (1987); which adequately discusses the facts and sole issue. After examining the record and the briefs of the parties, we conclude that no further articulation of the law or facts is necessary. See Faith Center, Inc. v. Hartford, 192 Conn. 434, 436, 472 A.2d 16 (1984); Hinchliffe v. American Motors Corporation, 192 Conn. 252, 253, 470 A.2d 1216 (1984). The trial court memorandum should be referred to for a detailed discussion.

There is no error. The case is remanded to the trial court to set new law days.


author: Daly, J.

text:
    State of Connecticut v. Robert Summerville
    (5611)
    Borden, Daly and O’Connell, Js.
    Argued on September 30, 1987 —
    decision released January 5, 1988

      Stephen F. Donahue, with whom was Elaine M. Scanlon, for the appellant (defendant).

      Harry Weller, deputy assistant state’s attorney, with whom, on the brief, were David Cohen, assistant state’s attorney, and Thomas O’Brien, legal intern, for the appellee (state).
   Daly, J.

The defendant was convicted by a jury of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (l) and possession of cocaine in violation of General Statutes § 21a-279. He claims that the court erred (1) in limiting his cross-examination, (2) in denying his motion for admission of the results of a polygraph test, (3) in failing to strike the testimony of the state’s expert rebuttal witness, and (4) in failing to grant his motions for judgment of acquittal, for a new trial, and for judgment of acquittal notwithstanding the verdict. We find no error.

The jury could have reasonably found the following facts. On October 12,1985, the defendant and the victim, who had been friends for several years, met in a bar in Bridgeport. The victim invited the defendant to attend a party in Stamford later that evening. Instead of attending the party, the two checked into a hotel room in Stamford at approximately 11:30 p.m. that evening. Both the victim and the defendant remained in the room for several hours drinking, socializing, and ingesting cocaine.

At approximately 5:30 a.m. the following morning, the defendant summoned a security guard to the room claiming that the victim had suffered a stroke. When the security guard entered the room, he observed the victim on the floor partially covered by a bed sheet. He checked for a pulse but found none. The security guard called the police for assistance. Terrance Shea, a Stamford fireman and emergency medical technician, responded to the scene shortly thereafter. Shea checked the victim’s pulse and upon finding none began efforts to resuscitate the victim. Resuscitation efforts continued until the victim arrived at Stamford Hospital, but the victim never responded and was pronounced dead.

At trial, the state produced Arkady Katsnelson, an associate chief medical examiner, who testified that the victim died as a result of manual strangulation. Katsnelson further testified that he found an abrasion on the victim’s neck below the left ear which seemed to have been caused by someone’s fingernail. Katsnelson also noted a separation of the victim’s hyoid bone, a U-shaped bone deep inside of the neck, hemorrhages to the victim’s neck, eye, heart, and lungs, and cocaine in the victim’s blood and nose.

The defendant called Elliot Gross, the former chief medical examiner in Connecticut, to support his theory that the victim died of cocaine intoxication. Gross, after reviewing the records and examining the larynx, tongue and hyoid bone which were made available to him through the chief medical examiner’s office, testified that the victim’s injuries and hemorrhages were due to the resuscitation efforts. On cross-examination, Gross conceded that microscopic slides of the areas of hemorrhaging could determine if the injuries had occurred before or after death, but that he did not order such slides in this case.

The state then called William Q. Sturner, chief medical examiner for the state of Rhode Island, as a rebuttal witness. Sturner rebutted Gross’ opinion by testifying that the injuries he observed were inconsistent with resuscitation. He based his testimony in large part on his examination of microscopic slides made from the area of hemorrhaging, the type of slides the defendant’s expert chose not to order. By examining the microscopic slides of where the hemorrhaging occurred, Sturner was able to determine that the hemorrhages occurred before the victim stopped breathing, and therefore were not the result of resuscitation efforts. Sturner concluded that the death of the victim was by strangulation.

I

In his first claim of error, the defendant contends that the trial court erred in limiting the defendant’s examination of Sergeant Robert C. Tymon. The defendant claims (1) that his cross-examination of Tymon was impermissibly restricted, and (2) that he should have been allowed to introduce certain hearsay evidence through Tymon on direct examination. We disagree.

A

Tymon, the officer in charge of the detective squad which investigated the victim’s death, testified in the state’s case-in-chief about his involvement in the case. On direct examination, Tymon identified the defendant as the person he took to the hospital for treatment. Additionally, Tymon testified that he took fingernail scrapings from the defendant. It is evident from the record that Tymon was called by the state to elicit information regarding the identification of the defendant as the one from whom he took fingernail scrapings.

On cross-examination, the defendant sought to question Tymon regarding the investigation and his interviewing of witnesses. The state objected to the questions on the basis that the questions were outside the scope of direct examination. The defendant’s response was simply that questions regarding areas of the investigation were permissible. The defendant did not claim that his questions went to the matter of the credibility of the witness. The court sustained the state’s objection and ruled that the defendant could call Tymon in his case.

It is a well established rule that cross-examination is restricted to matters covered on direct. State v. Pierson, 201 Conn. 211, 224, 514 A.2d 724 (1986); State v. Scott, 11 Conn. App. 102, 107, 525 A.2d 1364, cert, denied, 204 Conn. 811, 528 A.2d 1157 (1987). “A question [on cross-examination] is within the scope of the direct examination if it is designed to ‘rebut, impeach, modify, or explain any of the defendant’s direct testimony.’ ” State v. Sharpe, 195 Conn. 651, 657, 491 A.2d 345 (1985), quoting State v. Zdanis, 173 Conn. 189, 196, 377 A.2d 275 (1977). The trial court is given broad discretion to determine whether a particular line of cross-examination is within the scope of the direct examination. State v. McCarthy, 197 Conn. 247, 261, 496 A.2d 513 (1985); State v. Apostle, 8 Conn. App. 216, 230, 512 A.2d 947 (1986). A review of the record in this case indicates that the trial court did not abuse its discretion in limiting the defendant’s cross-examination.

B

The defendant called Tymon on direct examination and inquired about his investigation of the death of the victim. Tymon testified that he had questioned Gordon Anderson of California, who was staying in the room next to the one shared by the victim and the defendant on the night in question. The state objected to any testimony concerning the conversation between Anderson and the witness on the grounds of hearsay. The state’s objection was sustained. The defendant concedes that the testimony was hearsay but argues that the testimony should have been admitted under the “residual exception” to the hearsay rule.

“When a defendant offers evidence that is hearsay, his proffer runs counter to our well established preference for having a witness appear personally in court, under oath, so that his testimony can be subjected to cross-examination and his credibility adjudged in accordance with his demeanor.” State v. Aillon, 202 Conn. 385, 390, 521 A.2d 555 (1987). Hearsay evidence, however, can be admissible if it is both reliable and necessary. State v. Sharpe, supra, 664. “The necessity factor, [our Supreme Court has said], is reflected in the prerequisite that the declarant be unavailable.” State v. Frye, 182 Conn. 476, 480, 438 A.2d 735 (1980). The moving party has the burden of proving the declarant’s unavailability. Id.; C. McCormick, Evidence (3d Ed. 1984) § 253. “Absent a showing by the proponent of the proffered hearsay statement of the unavailability of the declarant, the declarant’s statement will be excluded from evidence.” State v. Frye, supra, 481. In meeting his burden of proving the unavailability of a declarant, the proponent of proffered hearsay testimony must demonstrate that he has used due diligence to procure the attendance of the absent witness. State v. Weinrib, 140 Conn. 247, 251, 99 A.2d 145 (1953). All that is required by the proponent of the hearsay testimony is a good faith effort to procure the declarant’s attendance. State v. Aillon, supra, 392.

In this case, the defendant failed to prove unavailability. The defendant’s mere assertion that he could not find “any Gordon Anderson in Corbalitos, California” does not amount to a good faith effort. Since we conclude that Anderson was not shown to be unavailable, we need not reach the issue of trustworthiness. State v. Frye, supra, 480.

II

The defendant’s second claim of error is that the trial court erred in denying the admission of the results of a polygraph test. The defendant correctly recognizes that our Supreme Court has consistently held polygraph evidence to be inadmissible, but urges this court to reassess this position. We see no reason to do so at this time. Our Supreme Court has recently rejected the use of polygraph tests. State v. Miller, 202 Conn. 463, 484-86, 522 A.2d 249 (1987). In Miller, the court ruled in accordance with the well established rule of this state that the “questionable accuracy” of polygraph tests serves as a compelling reason for excluding such evidence. Id., 486. It is not our function to overrule established Supreme Court precedent. O’Connor v. O’Connor, 4 Conn. App. 19, 20, 492 A.2d 207 (1985), rev’d on other grounds, 201 Conn. 632, 519 A.2d 13 (1987).

Ill

The defendant’s third claim is that the trial court erred in ruling that the rebuttal testimony of Sturner was admissible. Sturner’s testimony was largely based on medical slides that were examined the day before testifying. After examining these slides, Stumer established that the victim’s death was caused by strangulation. The defendant argues that the testimony of Sturner should have been stricken because (1) it was inappropriate for rebuttal, and (2) the slides that were the basis of his testimony were never made available to the defendant pursuant to his discovery request.

A

We first note that rebuttal testimony is necessarily limited to refuting evidence and impeaching or rehabilitating witnesses, not for merely bolstering one’s case. “The admission of rebuttal evidence is ordinarily within the sound discretion of the trial court.” State v. Lisella, 187 Conn. 335, 337, 445 A.2d 922 (1982); see also B. Holden & J. Daly, Connecticut Evidence (Sup. 1983) § 12; State v. Addazio, 169 Conn. 416, 427, 363 A.2d 153 (1975); Vazzano v. Slater, 6 Conn. App. 1, 5, 502 A.2d 440 (1986). “Unless the court in its discretion permits it, the state is not permitted on rebuttal to present witnesses who merely support the state’s case, but is confined to testimony which is directed at refuting the evidence given by the defendant.” State v. Addazio, supra, 427.

It is abundantly clear from the record that Sturner’s testimony refuted Gross’ testimony. It was, therefore, appropriate for rebuttal.

B

The defendant also argues that the rebuttal testimony should have been stricken because the slides used by Sturner were never made available to him. The defendant relies on three arguments in support of this claim of error. First, the defendant cites Practice Book § 741 (6), which prohibits the introduction of any results of scientific tests that are not submitted to the other party. The defendant also argues that testimony concerning the slides should have been stricken under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Finally, the defendant argues that he was deprived of his constitutional right of confrontation of witnesses against him under the sixth and fourteenth amendments to the United States constitution.

“The purpose of criminal discovery is to prevent surprise and to afford the parties a reasonable opportunity to prepare for trial.” State v. Festo, 181 Conn. 254, 265, 435 A.2d 38 (1980). There was no such element of surprise in this case.

The defendant’s expert, a former chief medical examiner for Connecticut, was aware of the use of microscopic slides in the manner used by Sturner. Furthermore, the defendant’s expert testified on cross-examination that medical slides would be helpful in determining when the death occurred but that he chose not to use such slides. The state fully cooperated with Gross’ requests for specimens retained from the autopsy, including his request to have the larynx prepared in a certain way. The state should not be punished, when it has fully cooperated with the defendant’s expert, but has presented an expert who performed a more thorough evaluation of the cause of death.

The defendant’s assertion that the surprise was due to the state’s withholding of information is without merit. The record indicates that Sturner examined the slides the day before he testified. Although this left little time for the defendant to examine the slides, the state informed the defendant that they were agreeable to a continuance. The defendant, however, rejected the offer of a continuance and cannot now be heard to argue that he had no time to prepare. State v. Weiderihoff, 205 Conn. 262, 275, 533 A.2d 545 (1987), quoting State v. Scognamiglio, 202 Conn. 18, 25, 519 A.2d 607 (1987) (“Action induced by an appellant cannot ordinarily be a ground of error.”); State v. Gonzalez, 13 Conn. App. 40, 44-45, 534 A.2d 623 (1987).

We find the defendant’s argument fails for these two reasons. The record indicates that the slides were not available until the day before Sturner’s testimony was given. If the defendant accepted the state’s offer for a continuance, the defendant would have had the time to examine the slides. The trial court, having no motion for a continuance before it, did not err in concluding that the defendant had sufficient time to examine the slides and to prepare a proper cross-examination.

IV

The defendant’s final claim is that the trial court erred in denying the motion to acquit, motion for a new trial, and motion for acquittal notwithstanding the verdict. After reviewing each claim, we find that the trial court did not err.

The defendant first argues that the trial court erred in not granting his motion to acquit, made at the conclusion of the state’s case and renewed after the close of all the evidence, based on insufficient evidence. “Although the defendant was indicted for murder, his subsequent conviction of the lesser included offense of manslaughter implicitly acquitted him of the murder charge. State v. Rodriguez, 180 Conn. 382, 398-99, 429 A.2d 919 (1980). In these circumstances, his challenge to the indictment is academic, and thus we need not address that claim. See State v. Nardini, 187 Conn. 109, 112, 445 A.2d 304 (1982).” State v. Shipman, 195 Conn. 160, 162, 486 A.2d 1130 (1985).

The defendant’s additional claims of error with respect to the denial of the motion for a new trial and the motion for acquittal notwithstanding the verdict are, in essence, challenges to the sufficiency of evidence. Our Supreme Court has concisely summed up our scope of review for such claims in State v. Simino, 200 Conn. 113, 116, 509 A.2d 1039 (1986): “When a claim on appeal challenges the sufficiency of the evidence, we undertake a two part task. We first review the evidence presented at trial, construing it in the light most favorable to sustaining the jury’s verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt.” Id., 116-17.

The evidence in this case overwhelmingly supports the jury’s verdict. The central factual issue was whether the victim was manually strangled. The state presented expert medical testimony to establish the defendant’s guilt, which was contradicted by the defendant. See id. A careful review of the evidence indicates that the evidence, if believed by the jury, was sufficient to convict the defendant of manslaughter in the first degree.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-55 (a) provides in pertinent part: “A person is guilty of manslaughter in the first degree when: (1) with intent to cause serious physical injury to another person, he causes the death of such person. ...”

       Although the defendant was convicted of the offense of possession of cocaine, we note that he has not raised any claim of error regarding this particular conviction. Our review is, therefore, limited to the manslaughter conviction. See, e.g., Butsch v. Planning & Zoning Commission, 6 Conn. App. 686, 688 n.2, 506 A.2d 1093 (1983).

       We note, further, that even if the restriction on cross-examination was error, it would have been harmless since the defendant was granted the opportunity to call the witness in his case-in-chief, which was eventually done. B. Holden & J. Daly, Connecticut Evidence (Sup. 1983) § 10c (2).


text:
    Claire Mailly v. Emil Mailly
    (4960)
    Daly, Stoughton and Norcott, Js.
    Argued November 18, 1987 —
    decision released January 5, 1988

      Charles E. Oman, with whom, on the brief, was Timothy C. Moynahan and Sharon A. Kaskie, for the appellant (defendant).

      Nicholas W. Rosa, with whom, on the brief, was Thomas W. Calkins, for the appellee (plaintiff).
   Stoughton, J.

In this action for dissolution of marriage, the defendant appealed following the denial of his motion to open the judgment. The defendant amended his appeal to include the order granting postjudgment counsel fees, expenses and temporary alimony. We find no error.

The plaintiff wife instituted an action in which she sought a dissolution of marriage, an assignment of the defendant’s estate, alimony and counsel fees. The defendant instituted a separate action in which he sought a dissolution of marriage and reconveyance of real and personal property. The defendant also filed a counterclaim in the plaintiff’s action in which his claims for relief were the same as those made in his separate action. The two actions were consolidated for trial and referred to the Han. Robert A. Wall, state trial referee.

The state trial referee rendered judgment on December 23, 1985. He found that the defendant had been guilty of intolerable cruelty to the plaintiff, as alleged in her complaint, and dissolved the marriage. He ordered the defendant to pay certain expert witness fees, to pay $10,000 towards the plaintiffs counsel fees, to pay $700 to reimburse the plaintiff for storage fees and to pay the plaintiff $80,000 as lump sum alimony. He also made certain orders respecting real and personal property.

The defendant moved to open the judgment and requested a rehearing. The motion was granted on January 21, 1986, and referred to the state trial referee. On February 20,1986, the state trial referee held a hearing, vacated the order of January 21,1986, and denied the motion. The defendant appealed from the denial of the motion to open the judgment on March 6, 1986, and thereafter the plaintiff moved for an allowance to defend the appeal and for temporary alimony pending the appeal. On June 10, 1986, the state trial referee ordered the defendant to pay $5000 for attorney’s fees and expenses of $1030.92, the cost of the transcript. He also ordered the defendant to pay $100 per week as temporary alimony pending the appeal. On June 27,1986, the defendant filed an amended appeal from the judgment in the original action, from the judgment on the motion to open the judgment, and from the judgment on the plaintiff’s motion for alimony and attorney’s fees pending appeal.

The defendant claims that the court abused its discretion when it issued its financial orders, including the award of attorney’s fees. In his amended appeal, the defendant claims that the trial court abused its discretion in granting counsel fees to defend the appeal and temporary alimony pending the appeal.

The plaintiff contends that because the initial appeal was from the denial of a motion to open the judgment, this court is without jurisdiction-to hear the appeal and the appeal should be dismissed. The denial of a motion to open a judgment is generally an appealable final judgment. Norwich v. Lebanon, 193 Conn. 342, 346 n.4, 477 A.2d 115 (1984); State v. Fahey, 146 Conn. 55, 59, 147 A.2d 476 (1958). We note, also, that the defendant amended his appeal not only to include a challenge to postjudgment orders made by the trial court; Practice Book § 4006; but also to recite that the appeal encompassed a challenge to the original judgment as well as the denial of the motion to open. Because the plaintiff failed to file a motion to dismiss within ten days of the filing of the amended appeal, she has waived any claim that review of the original judgment is barred on lateness grounds. Practice Book § 4056.

The state trial referee rendered judgment after a fully contested hearing. He found that the defendant had been guilty of intolerable cruelty to the plaintiff in several respects, that these acts of cruelty rendered the continuation of any relationship between the parties impossible and that they forced the plaintiff to leave the defendant to live with her daughter. He found that since the plaintiff left the defendant, the defendant had failed to provide her with any support. He also found that the defendant was not a credible witness because of financial and other misrepresentations. In response to a motion for articulation, he found that the plaintiff is deeply in debt due to the expenses of the trial and dependency on her daughter.

Our review of decisions by the trial court in domestic relations cases is confined to two questions: (1) whether the court correctly applied the law; and (2) whether it could reasonably have concluded as it did. We do not retry the facts. See Palazzo v. Palazzo, 9 Conn. App. 486, 488, 519 A.2d 1230 (1987).

It was conceded at oral argument that none of the financial awards made by the state trial referee had been paid. The court considered the financial abilities and positions of the parties and the statutory criteria of General Statutes §§ 46b-81 and 46b-82 in making the awards of alimony and counsel fees. We have reviewed the record and arguments presented in this appeal and conclude that the state trial referee determined all of the financial awards by correctly applying the law after carefully reviewing the evidence presented. Griffiths v. Griffiths, 12 Conn. App. 807, 808, 531 A.2d 1203 (1987).

There is no error.

In this opinion the other judges concurred.

       The plaintiff moved for an allowance to defend the appeal and for temporary alimony during the pendency of the appeal because the appeal acted to stay the awards of alimony and counsel fees. These motions were granted, and the defendant amended his appeal to claim error in these rulings. See Bielan v. Bielan, 135 Conn. 163, 165, 62 A.2d 664 (1948).

       The defendant also claimed that the state trial referee erred in (1) stating that it could not order a reconveyance of real estate held in trust because it did not arise out of the same transaction or the same subject of the action; (2) stating that it could not order a reconveyance of real estate held in trust because the complaint failed to state a claim upon which relief could be granted; and (3) not requiring corroboration as to serious allegations of misconduct and incidents and not drawing a negative inference from failure to call any witnesses. These additional issues have been withdrawn.


text:
    Shelby Mutual Insurance Company v. Bishop, Kirk and Saunders, Inc.
    (4540)
    Dupont, C. J., Spallone and Stoughton, Js.
    Argued October 15, 1987 —
    decision released January 5, 1988

      Jeffrey D. Lynch, with whom, on the brief, was Thomas M. Murtha, for the appellant (defendant).

      Stephen R. Beilis, for the appellee (plaintiff).
   Stoughton, J.

This is an appeal from a judgment for the plaintiff rendered by the court upon the decision of an arbitrator. The sole issue presented is whether the right of the defendant to trial by jury under our state constitution was violated. We find no error.

The plaintiff brought this action for breach of contract, alleging that the defendant, an insurance agency, had failed to comply with insurance underwriting rules and regulations. The defendant filed its answer to the complaint, and filed a claim for the jury trial list. After giving notice to the parties, the court referred the case to an arbitrator appointed pursuant to General Statr utes § 52-549W, and the matter was assigned for April 26, 1985. Neither the defendant nor its counsel appeared for the arbitration hearing. The arbitrator proceeded with the hearing and made a decision, pursuant to General Statutes § 52-549y, finding for the plaintiff. The defendant filed a motion for trial de novo, an objection to which was sustained. A motion to open the judgment was also denied.

The defendant claims that General Statutes § 52-549u is unconstitutional because it effectively abolished the defendant’s right to trial by jury. We disagree.

Section 52-549u permits the judges of the Superior Court to make rules providing a procedure under which the court may refer to an arbitrator certain civil actions in which a claim for a trial by jury and a claim for the trial list have been filed. These rules are found in Practice Book § 546L et seq. The plaintiff first argues that this claim should not be considered at all because it was not raised until the defendant, on appeal, filed its preliminary statement of issues. A challenge to the jurisdiction of a court to render judgment may, however, be raised at any time. Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 499, 508 A.2d 415 (1986).

Article IV of the amendments to the constitution of Connecticut provides, inter alia, that the right of trial by jury “shall remain inviolate.” It is clear that the right to a jury trial may not be abolished as to causes triable to the jury prior to the constitution of 1818, and extant at the time of its adoption. Gentile v. Altermatt, 169 Conn. 267, 298, 363 A.2d 1 (1975), appeal dismissed, 423 U.S. 1041, 96 S. Ct. 763, 46 L. Ed. 2d 631 (1976). This is such a case. Nevertheless, such a right may be subjected to reasonable conditions and regulations. Kredi v. Benson, 1 Conn. App. 511, 515, 473 A.2d 333, cert, denied, 193 Conn. 803, 474 A.2d 1260 (1984). The provision by the legislature for an alternative means of dispute resolution through the use of arbitrators to hear cases claimed for jury trial was but part of an effort to alleviate court congestion. See Seal Audio, Inc. v. Bozak, Inc., supra. The right to a trial by jury in these cases is preserved inviolate by General Statutes § 52-549z and Practice Book § 546S. Each of these sections provides for a claim for a trial de novo within twenty days of the filing of the arbitrator’s decision. Once a claim for trial de novo is filed in accordance with the rules, a decision of an arbitrator becomes null and void. Under the provisions of § 52-549z (c) and § 546S (c), however, only a party who has appeared at the hearing may claim a trial de novo. This is a reasonable requirement and does not operate to abolish the right to a trial by jury. It is not unreasonable to require that a party attend a hearing when a case has been assigned by the court. The defendant did not attend the hearing before the arbitrator, and the objection to its motion for trial de novo was properly sustained.

It is well settled that a party who challenges a statute on constitutional grounds has no easy burden for every intendment will be made in favor of constitutionality, and invalidity must be established beyond a reasonable doubt. University of Connecticut Chapter, AAUP v. Governor, 200 Conn. 386, 390, 512 A.2d 152 (1986), citing State v. Darden, 171 Conn. 677, 679, 372 A.2d 99 (1976). The defendant has failed to meet this heavy burden. The statute and the rule are reasonable in their requirements and, therefore, not unconstitutional as applied to the defendant here.

There is no error.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 52-549w. appointment of arbitrators, compensation. powers, (a) Upon publication of a notice in the Connecticut Law Journal, any commissioner of the superior court admitted to practice in this state for at least five years, who is willing and able to act as an arbitrator, may submit his name to the office of chief court administrator for approval to be placed on a list of available arbitrators for one or more judicial districts. The criteria for selection and approval of arbitrators shall be promulgated by the judges of the superior court. Upon selection and approval by the chief court administrator, for such term as he may fix, the arbitrators shall be sworn or affirmed to try justly and equitably all matters at issue submitted to them. The chief court administrator, in his discretion, may at any time revoke any such approval.
      “(b) Each arbitrator shall receive one hundred dollars for each day he is assigned to a courthouse facility to conduct proceedings as an arbitrator

        and an additional twenty-five dollars lor each decision filed with the court. In difficult or extraordinary cases, the chief court administrator may, in his discretion, make a further allowance not to exceed two hundred dollars for services rendered attendant to but not part of the hearing.
      “(c) Such arbitrators shall have the power to: (1) Issue subpoenas for the attendance of witnesses and for the production of books, papers and other evidence, such subpoenas to be served in the manner provided by law for service of subpoenas in a civil action and to be returnable to the arbitrators; (2) administer oaths or affirmations; and (3) determine the admissibility of evidence and the form in which it is to be offered.”

       “[General Statutes] Sec. 52-549y. failure to appear, judgment. MOTION TO OPEN OR SET ASIDE JUDGMENT. DISMISSAL OF ACTION. PAYMENT OF arbitration fee. (a) Where a party fails to appear at the hearing, the arbitrator shall nonetheless proceed with the hearing and shall make a decision, as may be just and proper under the facts and circumstances of the action, which shall be entered as a judgment forthwith by the court. Such judgment may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which it was rendered. If the court opens or sets aside the judgment, it may resubmit the actions to the arbitrator. Any order opening or setting aside the judgment may be upon condition that the moving party pay into the court an amount not greater than the total fees then payable to the arbitrator for services in the case.
      “(b) If all parties fail to appear at the hearing, the arbitrator shall file a request with the court to dismiss the action. If the court does not dismiss the action, it may be heard by the arbitrator upon order of the court. Such order may provide for the payment by any party to the court of an amount not greater than one hundred dollars.”

       “[General Statutes] Sec. 52-549u. arbitration of certain civil actions. RULES OF PROCEDURE. In accordance with the provisions of section 51-14, the judges of the superior court may make such rules as they deem necessary to provide a procedure in accordance with which the court, in its discretion, may refer to an arbitrator, for proceedings authorized pursuant to this chapter, any civil action in which the amount, legal interest or property in demand is less than fifteen thousand dollars exclusive of interest and costs and in which a claim for a trial by jury and a claim for the trial list have been filed.”

       “[General Statutes] Sec. 52-549z. appeal, trial de novo, (a) A decision of the arbitrator shall become a judgment of the court if no appeal from the arbitrator’s decision by way of a demand for a trial de novo is filed in accordance with subsection (d) of this section.

        “(b) A decision of the arbitrator shall become null and void if an appeal from the arbitrator’s decision by way of a demand for a trial de novo is filed in accordance with subsection (d) of this section.
      “(c) For the purpose of this section the word ‘decision’ shall include a decision and judgment rendered pursuant to subsection (a) of section 52-549y, provided the appeal is taken by a party who did not fail to appear at the hearing, and it shall exclude any other decision or judgment rendered pursuant to said section.
      “(d) An appeal by way of a demand for a trial de novo must be filed with the court clerk within twenty days of the filing of the arbitrator’s decision and it shall include a certification that a copy thereof has been served on each counsel of record, to be accomplished in accordance with the rules of court.”

       “[Practice Book] Sec. 546S. —claim for trial de novo; judgment “(a) A decision of the arbitrator shall become a judgment of the court if no claim for a trial de novo is filed in accordance with subsection (c).
      “(b) A decision of the arbitrator shall become null and void if a claim for a trial de novo is filed in accordance with subsection (c).
      “(c) A claim for a trial de novo must be filed with the court clerk within twenty days of the filing of the arbitrator’s decision. Only a party who appeared at the arbitration hearing may file a claim for a trial de novo.”