text:
    State of Connecticut v. Melvin E. Knighton
    (2528)
    Hull, Spallone and Daly, Js.
    Argued January 15 —
    decision released April 29, 1986

      F. Mac Buckley, for the appellant (defendant).

      Susan C. Marks, deputy assistant state’s attorney, with whom, on the brief, were Warren Maxwell, assistant state’s attorney, and James G. Clark, deputy assistant state’s attorney, for the appellee (state).
   Hull, J.

The defendant was indicted for the crime of murder, a violation of General Statutes § 53a-54a, and was convicted, after a trial to a jury, of manslaughter in the first degree in violation of General Statutes § 53&-55. He now appeals from his judgment of conviction claiming that the trial court erred in some of its evidentiary rulings, in several aspects of its charge to the jury and in its denial of his motion for judgment of acquittal. We conclude that the trial court’s actions were correct and, accordingly, we find no error.

The following testimony and facts are relevant to a discussion of the issues the defendant raises on appeal. On the evening of March 22,1980, the defendant shot the victim, William “Micky” Mathis, to death. Earlier in the day, the defendant had been at Players After Dark, a nightclub in Hartford. While at the club, the defendant was accosted in a hostile manner by Mathis, a man known in the community to be violent. Both men left the bar after this confrontation. Later in the evening, Mathis returned, and sometime after that the defendant also returned. The testimony at trial conflicted as to whether the defendant approached Mathis on his own initiative or whether he was called over by Mathis. Equally disputed is what happened once the defendant reached Mathis. At trial, the defendant contended, and offered testimony to show, that the victim was about to draw a gun and that he shot the victim solely to protect himself. Other witnesses testified that they did not see Mathis reach for a gun and one witness testified that he saw Mathis with his hands in the air just prior to the shooting. What is clear, however, is that the defendant went over to where Mathis was standing, drew a gun and shot Mathis four times. After the shooting, the defendant left the bar. Minutes later, he was admitted at St. Francis Hospital and treated for a gunshot wound to his left leg which he had apparently inflicted on himself when he shot the victim.

The defendant claims on appeal that the trial court erred in seven respects: (1) in limiting his cross-examination of one of the state’s key witnesses; (2) in charging the jury that it could consider whether, by leaving the scene of the shooting, the defendant had displayed consciousness of guilt; (3) in refusing to admit evidence of violent acts Mathis allegedly committed, to show his propensity for violence and to show the defendant’s state of mind; (4) in refusing to charge the jury that the state was required to show as part of its “prima facie” case that the defendant did not act in self-defense; (5) in charging the jurors on recklessness and on the defendant’s duty to retreat prior to using deadly force; (6) in charging the jurors that they could consider manslaughter in the first degree as a lesser included offense of murder; and (7) in finding that the state had put on sufficient evidence to withstand a motion for judgment of acquittal.

The defendant first challenges the trial court’s limitation of his cross-examination of one of the witnesses. The state called the owner of Players After Dark who was present in the club on the night of the shooting. The owner testified that he saw the defendant approach Mathis without invitation and, contrary to the defendant’s claim that Mathis was reaching for a gun when he shot him, Mathis’ hands were in the air. The defendant sought to impeach the owner’s visual acumen by cross-examining him about an event that had occurred one or two months prior to the shooting. The state objected and the defendant made an offer of proof to the effect that the witness had, during a break-in at the bar, twice shot at and missed an intruder who was only eight to ten feet away from him. The court excluded the evidence as irrelevant, and the defendant excepted.

The defendant asserts that the trial court should not have limited his cross-examination of the owner. In pressing his argument, however, the defendant cites no legal authority for his claim. Nor does he refer to any standard by which the trial court’s actions should be tested. His brief contains nothing more on this point than an unsupported contention that the trial court erred. Our Supreme Court, when faced with similar circumstances, held that the bare assertion of error without citation to legal authority may constitute an abandonment of the claim. Rodriguez v. Mallory Battery Co., 188 Conn. 145, 148-49, 448 A.2d 829 (1982). Accordingly, we consider this ground of error to be abandoned, and decline to review it.

The defendant’s second claim is that the trial court erred by twice charging the jurors that they could infer that the defendant, by leaving the club after the shooting, had displayed consciousness of guilt. In its original charge, the trial court instructed the jurors that if they found “that the defendant had fled from the scene to avoid detection,” then they could consider the legal principle of consciousness of guilt. That principle, the court charged, “applies when a defendant does an act from which one can infer that he had attempted to avoid detection or avoid facts which would lead to his conviction, as being a consciousness of guilt.” The defendant excepted to this portion of the charge. During deliberation, the jurors requested further instruction on the possible verdicts and also on retreat and intent. The trial court recharged the jurors on the topics they had requested, and, in so doing, again instructed on consciousness of guilt. The defendant again excepted. The defendant argues that the charge was inappropriate because his conduct equally could have supported a completely innocent inference: that he left merely to get medical attention.

As with his first ground of error, the defendant does not refer to any legal authority in support of this claim. Nor did the defendant raise the particular ground he now asserts, ambiguity as to the reason for his flight, dining his exceptions to the trial court’s charge. Rather, the defendant then objected and excepted on the basis that the state never indicated that it would request a consciousness of guilt charge, and thereby prevented him from introducing evidence to show that his flight was completely innocent. Because the defendant’s exception during trial did not properly advise the court of the ground of error he now raises; see State v. Carter, 198 Conn. 386, 395-96, 503 A.2d 576 (1986); State v. Alston, 5 Conn. App. 571, 574-75, 501 A.2d 764 (1985); and because he cites no legal authority in support of this claim; Rodriguez v. Mallory Battery Co., supra; we decline to consider it.

The defendant’s third claim, which he did preserve and present properly, is that the court erred in refusing to allow either a police officer or the defendant to testify about specific acts of violence Mathis allegedly committed. According to the defendant, the officer’s testimony should have been admitted to show the victim’s propensity for violence, and his own testimony should have been admitted to show his state of mind when he confronted Mathis in the club. The state argues that the court did not err in excluding this evidence.

Where the accused in a homicide prosecution claims that he killed the victim in self-defense, he may introduce evidence of the victim’s violent character to attempt to show that the victim was the aggressor. State v. Miranda, 176 Conn. 107, 109-11, 405 A.2d 622 (1978). Similarly, a defendant may, if he first shows that he was aware of the victim’s violent nature, introduce such evidence to show his own state of mind at the time he confronted the victim, and thereby show the reasonableness of his belief that the use of force was necessary. Id., 109. A victim’s violent character may be proven by reputation or opinion evidence or by evidence showing convictions for crimes of violence. Id. It may not, however, be proven by evidence of other specific acts. Id., 112-13. The defendant acknowledges this principle but argues that the policy reasons behind this rule — to avoid surprise, prejudice, confusion, and undue delay — would not have been abridged in this case by admitting the evidence. He asserts that the trial court therefore erred by excluding the evidence.

The defendant is correct that the rule prohibiting the admission of evidence of specific acts of violence was motivated by the policy reasons he lists. Id. He is incorrect, however, in claiming that an exception to this rule applies where these reasons are absent. Our Supreme Court addressed this issue recently and recognized no such exception. Rather, it stated unequivocally that “[ejxcept where character is directly in issue, a person’s violent character may not be established by evidence of specific acts. State v. Miranda, supra, 112.” State v. Gooch, 186 Conn. 17, 21, 438 A.2d 867 (1982). It is not, in light of State v. Gooch, supra, and State v. Miranda, supra, proper for this court to create an exception to this rule as urged by the defendant. See O’Connor v. O’Connor, 4 Conn. App. 19, 20, 492 A.2d 207 (1985). We decline to do so.

In his fourth claim, the defendant argues that the court erred in its charge on self-defense as a justification for the homicide. The substance of this argument is unclear. It appears, however, that the defendant is not contending that the trial court stated the law incorrectly, but rather that it did not properly emphasize the state’s burden of disproving the defendant’s claim of self-defense. This argument is without merit. A party is not entitled to a charge which is “beyond criticism in every particular. State v. Kurvin, [186 Conn. 555, 561, 442 A.2d 1327 (1982)].” State v. Harman, 198 Conn. 124, 134, 502 A.2d 381 (1985). Rather, a charge is adequate if it is “legally correct and presents] the case to the jury in a just and fair manner.” State v. Candito, 4 Conn. App. 154, 160, 493 A.2d 250 (1985). This standard was satisfied by the trial court’s instructions.

Once “any evidence ha[s] come into the case, whether or not offered by the defendant, on which a reasonable doubt as to self-defense could be predicated, the state ha[s] the burden of negating self-defense as incident to its overall burden of proving guilt beyond a reasonable doubt.” State v. Jenkins, 158 Conn. 149, 154, 256 A.2d 223 (1969). Here, the defendant did introduce evidence sufficient to trigger the state’s burden of disproving justification. The trial court, recognizing this fact, instructed the jury extensively on self-defense. When the trial court read the elements of murder and of manslaughter to the jurors, it emphasized that any finding of guilt was “subject . . . to [its] instructions concerning justification.” It charged on justification as follows: “in all cases you must consider the defense of justification, that is even though you found the elements of murder or of manslaughter, whether under the circumstances present, the defendant used reasonable force so as to absolve himself from criminal responsibility by the defense of justification.” It further told the jurors that “it’s incumbent upon the state to prove beyond a reasonable doubt that there was no defense of justification or no justification for the act.” The court then explained the circumstances under which deadly force could be used.

When the jury requested reinstruction on the possible verdicts and also asked for clarification on the “difference among them elaborating on retreat and intent,” the court again told the jurors that a finding of guilt was “subject ... to [its] instructions on the question of justification.” It told the jurors that “[w]hen a defendant raises a defense of justification, the state has the burden of disproving such defense beyond a reasonable doubt.” Later, after giving the requested reinstruction on retreat, the court again charged that “[t]he burden is on the state to prove beyond a reasonable doubt that there was no justification.” During its third charge to the jury, the court reinstructed on manslaughter and in so doing, it again told the jury that a guilty verdict was possible only if the state had met its burden of disproving justification beyond a reasonable doubt.

These instructions on self-defense as a justification for homicide were legally correct. The court properly emphasized that the state bore the burden of disproving self-defense and that the standard it was required to meet was proof beyond a reasonable doubt. State v. Corchado, 188 Conn. 653, 660, 453 A.2d 427 (1982). Additionally, the charge was more than adequate to present the case to the jury in a fair and just manner. The defendant was entitled to no more. State v. Candito, supra.

The defendant next claims that the trial court erred by making clear, in its charge to the jury, its erroneous conclusion that by returning to the club after his first confrontation with the victim, the defendant acted recklessly within the meaning of General Statutes § 53a-55. In support of his argument that the trial court in essence directed a verdict on the element of recklessness, the defendant points to the following portion of the trial court’s first supplemental charge: “Did he return [sic] recklessly in conduct which created a grave risk of death to another under circumstances evincing an extreme indifference to human life?”

The defendant is incorrect in claiming that through this instruction, the court directed the jury to find that the recklessness element had been proven. Rather, the court was merely instructing on the defense of justification and the requirement of retreat. In so doing, it referred to the possible verdicts and the factual issues of the case. This is apparent from an examination of the language of the charge which preceded that quoted by the defendant: “However, the concept of retreat is that which the court is instructing on and one of the issues before you are these particular questions. What was the state of mind of the defendant when he returned to Players After Dark at/or about 10:00 p.m.? Did he intend to cause Micky Mathis’ death? Did he intend to cause Micky Mathis serious physical injury? Did he return [sic] recklessly in conduct which created a grave risk of death to another under circumstances evincing an extreme indifference to human life?” While the court did substitute the word “return” for the word “engage” when reading the statutory definition of manslaughter, it in no way indicated to the jury that the defendant had behaved recklessly by returning to the bar.

The defendant also challenges another section of the charge: “If the defendant knew there had been sufficient confrontation and I am speaking of [the early evening confrontation], to warrant a shootout, and that his presence even though words of provocation would not be explained would result in the act of provocation alone, he would not be warranted to justification [sic] in returning with that knowledge and a gun to challenge a shootout.” The defendant claims that by so stating, the court, in effect, told the jury that the defendant had behaved recklessly by returning to the bar.

In this portion of the charge, the court did not direct the jury to find that the defendant’s return to the club constituted recklessness. It merely instructed the jury on how to determine whether the defendant was the aggressor or whether he provoked the attack so as to be prohibited from claiming self-defense as a justification. The context in which the challenged language was given is as follows: “If the defendant went out to get a gun and had returned knowing that Micky would still be playing the second pinball machine and walked up to him quickly, as indicated by [the owner of the club] and [the barmaid] and pulled his gun and fired while Micky’s hands were in the air, even though he may have precipitated some type of argument, there would be no justification. If the defendant knew there had been sufficient confrontation, and I am speaking of the [early evening confrontation], to warrant a shootout, and that his presence even though words of provocation would not be explained would result in the act of provocation alone, he would not he warranted to justification in returning with that knowledge and a gun to challenge a shootout. If there had been threats, and this is the third example, if there had been threats to which he had passed off hundreds of times and had returned without the thought that there would be a confrontation and Micky had attempted to draw on him with such words like ‘are you back again’ or whether he made the motion to draw the gun by passing his right hand across in front of him or to his rear as if drawing for a gun and the defendant, as he testified, knew his reputation for violence, could be warranted in believing that it was necessary to defend himself, particularly if you determine Micky, by the testimony of others, was known to carry a gun and be violent and, therefore, an aggressor.” (Emphasis added.)

This charge was not erroneous. It accurately presented the limits on self-defense as established by General Statutes § 53a-19 (c) (1) and (2): the defendant is not justified in using deadly force to defend against an attack he provokes, and he is not justified in using deadly physical force if he instituted the confrontation. The instruction fairly presented the self-defense issue to the jury. State v. Candito, supra.

The defendant’s sixth claim is that the trial court erred in charging the jury that it could consider manslaughter in the first degree in violation of General Statutes § 53a-55a (3) as a lesser included offense of murder. An instruction on a lesser included offense should be given where four preconditions are met: “(1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980). Here, the defendant agrees that the first two prongs of Whistnant were satisfied. He claims, however, that manslaughter by recklessness should not have been charged as a lesser included offense because neither he nor the state ever claimed that the shooting was not intentional.

Our Supreme Court has twice rejected arguments similar to the one the defendant now presses. State v. Falby, 187 Conn. 6, 28, 444 A.2d 213 (1982); State v. Maselli, 182 Conn. 66, 73, 437 A.2d 836 (1980), cert. denied, 449 U.S. 1083, 101 S. Ct. 868, 66 L. Ed. 2d 801 (1981). In State v. Maselli, supra, the defendant, a passenger in a taxi, killed the driver whom he believed was about to pull a gun. The defendant acknowledged that the shooting was intentional but claimed that he acted in self-defense. The Supreme Court found that a charge on manslaughter by recklessness was appropriate in those circumstances reasoning that “[t]he jury might well have concluded that for the defendant to have believed . . . that it was necesssary to fire eight shots at point blank range was such a gross deviation from the standard of conduct that a reasonable person would observe in the situation as to constitute recklessness.” State v. Maselli, supra, 73. In State v. Falby, supra, the Supreme Court found that charges on manslaughter in the second degree by recklessness and criminally negligent homicide were warranted where the defendant confessed to intentionally strangling a nine year old girl. In his confession, the defendant indicated that after the child started bleeding, he became frightened and threw her on the ground. The court felt that the “evidence suggests at least a possibility that the defendant acted recklessly or with criminal negligence in leaving a child with her face in the dirt following [the] attack.” State v. Falby, supra, 30. This was especially so given that there was evidence that the defendant had committed an aborted attack a year earlier, in which he allegedly also removed his hands from another victim’s neck and threw her to the ground.

Here, as in Falby and Maselli, the admission by the defendant that he had acted intentionally did not prohibit the jury from finding that he acted recklessly also. Rather, the jury could have concluded that while the defendant did not intend to kill Mathis, his belief that he could protect himself only by firing four shots at Mathis “was such a gross deviation from the standard of conduct that a reasonable person would observe in the situation as to constitute recklessness.” State v. Maselli, supra, 73. Additionally, the jury could have found that the conduct which resulted in the death was not limited to the actual shooting but rather encompassed the whole course of conduct the defendant engaged in: going into a crowded bar with a loaded gun; approaching the defendant, whether at his own initiative or by invitation, with a loaded gun; leaving the bar after the shooting without first securing medical attention for Mathis. The jury reasonably could have found that through this course of conduct, the defendant did not intend to kill Mathis, nor to cause him serious physical injury, but did recklessly engage in conduct which created a grave risk of causing his death and thereby did cause his death. The court did not err in charging the jury on manslaughter.

In his final claim, the defendant contends that the trial court erred in refusing to grant his motion for judgment of acquittal based on the insufficiency of the evidence of recklessness. We have carefully considered this claim and find it to be without merit.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-55 provides in pertinent part: “(a) 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 or of a third person; or . . . (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.”

       We have, however, conducted a limited review solely to determine whether any injustice was done to the defendant. It was not. The essence of the sixth amendment confrontation requirement, that the defendant be permitted to expose the jurors to facts sufficient to allow them to test a witness’ credibility; State v. Castro, 196 Conn. 421, 425, 493 A.2d 223 (1985); was satisfied here. While the defendant was not allowed to elicit testimony concerning the break-in, he was allowed to question the owner about his visual ability. The witness admitted that he had cataract surgery between the time of the shooting and the time of the trial, and he also testified that he could have had a cataract in one eye at the time of the shooting. On the basis of this evidence, the jurors were able to evaluate the witness’ ability to see the events that led to the shooting.
      Once sixth amendment concerns have been satisfied, limitation on cross-examination is within the discretion of the trial court. Id., 424. “ ‘It is a reasonable exercise of judicial discretion to exclude . . . evidence the relevancy of which appears to be so slight and inconsequential that to admit it would distract attention which should be concentrated on vital issues of the case.’ ” (Citation omitted.) State v. Talton, 197 Conn. 280, 284-85, 497 A.2d 35 (1985). The evidence the defendant sought to admit was of such a nature, and the trial court did not abuse its discretion by excluding that evidence.

       We note that even if the defendant had properly presented this claim of error, he would not have prevailed. It is well settled that “ ‘[t]he [unexplained] 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.’ ” State v. Rosa, 170 Conn. 417, 433, 365 A.2d 1135, cert. denied, 429 U.S. 845, 97 S. Ct. 126, 50 L. Ed. 2d 116 (1976). The fact that flight is susceptible of an innocent explanation does not make evidence of flight inadmissible. 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). Nor should any such ambiguity render a charge on flight as consciousness of guilt inappropriate. Rather, the existence of any ambiguity or explanation “simply constitutes a factor for the jury’s consideration. People v. Yazum, 13 N.Y.2d 302, 304-305,196 N.E.2d 263 [246 N.Y.S.2d 626 (1963)]; 1 Wharton, [Evidence (2d)] § 214; 29 Am. Jur. 2d, Evidence § 280.” State v. Piskorski, supra. Here, the court properly instructed the jurors that they could draw an inference of guilt only if they first found that the defendant had fled to avoid detection.

       We note that the defendant was able to introduce extensive evidence on the issues of Mathis’ violent character and his own state of mind regarding the threat Mathis posed to him. Joan Smith, the barmaid at the club who had lived with Mathis for four or five months, Jose A. Zaporta, a friend of both the defendant and Mathis, Robert Cady, who knew both men, and Detective Madison Bolden of the Hartford police department all were permitted to testify that Mathis had a reputation in the community for being a violent person and that in each of their opinions he was a violent person. Zaporta, Cady, and Smith also testified that Mathis was in the habit of carrying a gun. The defendant testified that he was aware that the victim had a reputation in the community as a “gunslinger,” and that, in his opinion, the victim was a “gunslinger.” He testified that his opinion was based both on things he had seen the victim do and on things the victim told him he had done. Accordingly, the jurors had extensive evidence from which to evaluate the defendant’s claim that Mathis was the aggressor.

       General Statutes § 53a-19 governs the use of self-defense. It provides: “(a) Except as provided in subsections (b) and (c) a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.
      “(b) Notwithstanding the provisions of subsection (a), a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling, as defined in section 53a-100, or place of work and was not the initial aggressor, or if he is a peace officer or a private person assisting such peace officer at his direction, and acting pursuant to section 53a-22, or (2) by surrendering possession of property to a person asserting a claim of right thereto, or (3) by complying with a demand that he abstain from performing an act which he is not obliged to perform.
      “(c) Notwithstanding the provisions of subsection (a), a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force, or (3) the physical force involved was the product of a combat by agreement not specifically authorized by law.”

       The defendant, relying on State v. Jenkins, 158 Conn. 149, 256 A.2d 223 (1969), seems to be arguing that the absence of self-defense is an essential element of the crimes of murder and manslaughter and, therefore, the trial court was required to charge on this “essential element” when giving the other elements of the crimes. Jenkins does not, however, support the defendant’s claim. That case merely stands for the general proposition discussed above: once the defendant raises self-defense, disproving that justification becomes an essential part of the state’s case. State v. Jenkins, supra, 154.

       The defendant also claims that the trial court erred by indicating this belief during argument with counsel outside the jury’s presence. The trial court’s beliefs, erroneous or not, do not constitute the basis for a claim of error. What properly can be challenged is the trial court’s actions: a communication of its beliefs to the jury in a manner which in essence amounts to a directed verdict on the issue. Accordingly, we limit our review to a consideration of those grounds of error which challenge the trial court’s instructions or comments to the jury.

       According to the defendant, the trial court erred in “numerous” aspects of its charge on retreat and recklessness. We review, however, only those portions of the charge to which the defendant refers specifically in his brief. Practice Book § 3060F (d) (2).

       See footnote 5, supra.


source: Caselaw Access Project

author: Borden, J.

license: Public Domain

text:
    Maurice Sendak et al. v. Planning and Zoning Commission of the Town of Ridgefield et al.
    (3934)
    Dupont, C. J., Borden and Bieluch, Js.
    Argued January 10 —
    decision released April 29, 1986

      Barbara J. Wardenburg, with whom, on the brief, was Samuel M. Chambliss, for the appellants (plaintiffs).

      Robert A. Fuller, for the appellee (defendant The Portland Corporation).
   Borden, J.

This appeal arises out of a stipulated judgment whereby the named defendant, the planning and zoning commission of the town of Ridgefield (commission), and the defendant The Portland Corporation (Portland), agreed to settle several actions pertaining to Portland’s repeated attempts to obtain approval of its applications for subdivision of real property. The plaintiffs appealed to the Superior Court challenging the commission’s action in entering into the stipulated judgment. The court dismissed the plaintiffs’ appeal. The principal issue before us is whether the commission’s decision to enter into a stipulated judgment in settlement of litigation with Portland constitutes “an official action or decision of a planning commission” within the meaning of General Statutes § 8-28 so as to confer jurisdiction upon the trial court to decide the plaintiffs’ appeal from that decision. We hold that, under the facts and circumstances of this case, this settlement of litigation does not constitute such an official action or decision and, accordingly, we find no error in the trial court’s dismissal of the plaintiffs’ appeal.

The facts, which are not in dispute, are best understood in the context of the following history. In 1979, Portland made its first application to the commission for subdivision of Portland’s property into fifteen lots. There are two steps in that application process: (1) designation of the property as suitable for subdivision; and (2) approval of the subdivision plan. The commission denied the application and Portland appealed to the Superior Court (the first appeal). In April, 1980, the commission and Portland entered into an agreement whereby the commission agreed to designate and approve an eleven lot subdivision upon Portland’s submission of an eleven lot application. Portland submitted the application, the commission approved it, and the plaintiffs appealed the commission’s decision to the Superior Court claiming to be aggrieved as abutting and as nearby landowners (the second appeal). While the second appeal was pending, on September 29,1980, the agreement between Portland and the commission was incorporated into a stipulated judgment of the Superior Court in the first appeal. Thereafter, the Superior Court ruled in the second appeal that the commission’s decision on Portland’s resubmitted application was invalid because it had not been published. The commission subsequently published the decision to approve that application.

In April, 1983, Portland submitted a new application to the commission seeking designation and approval of a twelve lot subdivision. In June, 1983, the commission granted the application in part; the property was designated for subdivision but the twelve lot plan was not approved. Portland appealed the denial of this application to the Superior Court (the third appeal). While this third appeal was pending, Portland submitted an eleven lot application similar to the prior application, which had been fully approved by the commission and incorporated into the court’s judgment in the first appeal. On December 6, 1983, the commission voted to deny the eleven lot application, and Portland appealed that decision to the Superior Court (the fourth appeal). Meanwhile, the plaintiffs had moved to intervene in both the third and fourth appeals, which motions were not immediately ruled upon.

In June, 1984, Portland initiated a mandamus action against the commission to compel compliance with the Superior Court’s judgment of September 29, 1980, which was rendered in the first appeal. The trial of that action commenced on July 2,1984, and, upon hearing part of the evidence, the trial court, Lavery, J., continued the proceedings to a later date so that counsel for the commission could meet with the commission members to discuss possible settlement of all of the pending litigation between the commission and Portland. On July 10, 1984, the commission members met with their counsel in an executive session and, immediately thereafter, the commission passed a resolution authorizing its counsel to enter into a stipulated judgment with Portland in settlement of all pending litigation upon Portland’s agreement to certain terms and conditions. On July 13,1984, Portland met with counsel for the commission and the town planner, and reached a settlement agreement which was conditioned upon, inter alia, the termination of all of the pending litigation. On July 16, 1984, the Superior Court, Moraghan, J., denied the plaintiffs’ motions to intervene in the two pending appeals, namely, the third and fourth appeals. On July 17,1984, the commission met with its counsel and the town planner in executive session and, immediately thereafter, passed a resolution confirming its agreement with Portland and confirming its intent to enter into stipulated judgments in all of the pending litigation. On July 18, 1984, the court, Lavery, J., rendered judgment for Portland in the mandamus action, in the fourth appeal and in a related wetlands appeal, and Portland thereafter withdrew the third appeal in accordance with the stipulation. On July 19, 1984, the commission published legal notice indicating that a stipulated judgment had been rendered.

By petition dated August 1, 1984, the plaintiffs, as abutting and nearby landowners, initiated the appeal to the Superior Court which is the basis of this case. They alleged, inter alia, that the commission’s decision to enter into a stipulation for judgment in the pending litigation with Portland was invalid because it was done arbitrarily, illegally and in abuse of the commission’s power and discretion. Portland moved to dismiss the appeal for lack of subject matter jurisdiction. The trial court, Moraghan, J., granted Portland’s motion and rendered judgment dismissing the plaintiffs’ appeal. The plaintiffs’ now appeal to this court from that judgment of the trial court. They claim that General Statutes § 8-28 permits an appeal by aggrieved persons from an official action or decision of a planning commission, and that the commission’s decision to enter into a stipulated judgment in settlement of the pending litigation between Portland and the commission is such an official action or decision. We disagree.

“It is well settled that appeals to courts from administrative officers or boards exist only under statutory authority and that unless a statute provides for such appeals, the courts are without jurisdiction to hear them.” Allied Plywood, Inc. v. Planning & Zoning Commission, 2 Conn. App. 506, 509, 480 A.2d 584 (1984). Where no such statutory authority exists, dismissal of the appeal is the proper remedy. Id.

General Statutes § 8-28 provides in pertinent part that “any person aggrieved by an official action or decision of a planning commission, including a decision to take no action . . . may appeal therefrom ... to the superior court for the judicial district within which the municipality with such planning commission lies.” Where, as here, the plaintiffs seek to challenge by way of an appeal the decision of a planning commission to settle an already pending appeal in which the same plaintiffs have sought to intervene, two competing social interests are present.

One is the powerful interest in the promotion of settlement of litigation by agreement of the parties. See, e.g., Blake v. Levy, 191 Conn. 257, 264, 464 A.2d 52 (1983). Our Supreme Court has clearly recognized that this interest applies to administrative proceedings by explicitly approving a stipulation for judgment in an administrative appeal then pending before it. See Hartford v. Hartford Electric Light Co., 173 Conn. 340, 377 A.2d 1090 (1977). This interest would be seriously undercut if, after a planning commission has in good faith settled a pending appeal by agreeing to a stipulated judgment, that settlement could be challenged by a subsequent appeal by third parties.

The other powerful competing social interest is the need for protection of the integrity of the land use planning process. This interest derives from the recognition that, where an initially unsuccessful applicant before a planning commission takes an appeal to the court, the applicant and the commission could abuse the entire process by collusively stipulating to a judgment in the applicant’s favor, and thus evade both judicial review and effective scrutiny by potentially aggrieved neighbors whose attempts to intervene had not yet been acted upon. This recognition derives, in turn, from the reality that there are cases in which “the propriety of the conduct of the commission is open to criticism.” Mills v. Town Plan of Zoning Commission, 145 Conn. 237, 241, 140 A.2d 871 (1958).

In order to preserve a proper balance between these interests, we conclude that whether a planning commission’s decision to settle a pending appeal constitutes an official action or decision within the meaning of General Statutes § 8-28 so as to permit an appeal therefrom by third parties must be resolved on a case by case basis. We therefore hold that, absent bad faith, collusion or other improper conduct by the parties, a planning commission’s decision to settle an appeal by way of a stipulated judgment is not an official action or decision within the meaning of the statute, and a further appeal to the court does not lie from that decision.

Our review of this record indicates that there was no bad faith, collusion or other improper conduct. As the procedural history indicates, the litigation between Portland and the commission was generated over a period of years as Portland repeatedly attempted to gain approval of its subdivision applications. Although this protracted time period alone is not dispositive, it does suggest an arms length if not an adversarial relationship between Portland and the commission. There is no indication of collusion in the actions of either party. Although Portland representatives did meet with counsel for the commission on one occasion, there is no indication that any member of the commission met secretly with Portland. Indeed, the precipitating event which prompted these settlement discussions was the commencement of Portland’s mandamus action against the commission. The fact that the mandamus action reached the trial stage is a persuasive indicator that the commission was not acting in collusion with its opponent. In this regard, the brief of counsel for the commission points out that the commission, as the defendant in the mandamus action, faced potential exposure to a substantial award for damages in favor of Portland had that action proceeded to judgment. This is a further indicator of the motivations upon which the commission acted which, combined with the other factors, leads to the conclusion that it acted in good faith.

There is no error.

In this opinion the other judges concurred.

       Recent legislation, enacted subsequent to these proceedings, provides for a court hearing prior to the settlement or withdrawal of a pending appeal from a land use decision and requires that the court approve such a settlement or withdrawal as a condition of its validity. Public Acts 1984, No. 84-227. This legislation, which the plaintiffs do not claim to apply to this case, is a legislative recognition of the competing interests which we have identified. It recognizes both the legitimacy of settlement of zoning cases and the need for judicial scrutiny in order to avoid abuse of the process.


author: Spallone, J.

text:
    Aaron Simmons et al. v. Southern Connecticut Gas Company, Inc.
    (3615)
    Dupont, C. J., Borden and Spallone, Js.
    Argued March 12 —
    decision released May 6, 1986

      Beverly J. Hodgson, with whom, on the brief, was Rosalind J. Koskoff, for the appellants (plaintiffs).

      Timothy G. Atwood, for the appellee (defendant).
   Spallone, J.

The plaintiffs appeal from the judgment of the trial court rendered after a directed verdiet for the defendant and following the denial of their motion to set aside the verdict. They claim the trial court erred: (1) in directing a verdict for the defendant based on the defense of the statute of limitations after the plaintiffs presented a prima facie case in negligence; (2) in denying the plaintiffs’ motion to amend their complaint to include General Statutes § 52-592, accidental failure of suit in avoidance of the defense of the statute of limitations; and (3) in denying the plaintiffs’ motion to introduce a fraudulent concealment claim during the trial.

The relevant facts may be summarized as follows. In the summer of 1973, the plaintiffs’ gas was turned off because of nonpayment of several gas bills. Mr. Simmons went to the offices of the defendant and paid a bill in the amount of $131.95 plus a $15 turn-on charge. The defendant provided a receipt for the payment which omitted the plaintiffs’ account number. The defendant then restored gas service to the plaintiffs’ residence. The plaintiffs kept their gas payments current through the fall of 1973 and early winter of 1974. In the fall of 1973, the plaintiffs received letters from a collection agency which claimed that they owed money, on past due bills, to the gas company. The plaintiffs questioned the defendant directly and were told that they owed the amount. On January 6, 1974, the defendant sent a letter to the plaintiffs warning them that the gas would be turned off if they did not pay their overdue bills. On February 28,1974, the gas service was terminated for nonpayment of the July, 1973 bill which in fact turned out to be the bill in the amount of $131.95 which had been paid by Mr. Simmons and for which he had received a receipt. The defendant refused to reinstate the gas service unless the plaintiffs could provide proof of payment by receipt. The defendant had a copy of the receipt but claimed that it could not be found. After several unsuccessful attempts to get the gas turned on, the plaintiffs sought legal help. Through the efforts of an attorney, the plaintiffs were able to persuade the defendants to turn on the gas, which they did on March 30,1974. The plaintiffs eventually found the receipt and provided the defendant with a copy.

In October, 1974, the plaintiff brought a class action law suit in the United States District Court for the District of Connecticut, pursuant to Title 42 U.S.C. §§ 1981 and 1983, and Title 28 U.S.C. §§ 2201 and 2202, claiming a tort action for violation of due process and equal protection rights. On October 3,1978, the case was dismissed from the federal court for lack of jurisdiction for want of state action.

Twenty days later, on October 23, 1978, the plaintiffs brought suit in Superior Court against the defendant. The complaint was drawn in two counts, one in contract, the other in tort.

On March 2,1979, the defendant, represented by the same attorney as in the federal law suit, filed an answer and special defenses. The defendant raised three special defenses to the contract count, alleging (1) that the current unpaid charges were unconnected with the disputed billing, (2) that all parties, excluding Aaron Simmons, lacked privity of contract with the defendant, and (3) that the plaintiffs failed to take reasonable steps to mitigate their damages. The defendant raised two special defenses to the tort claim, a statute of limitations defense and contributory negligence. The plaintiffs moved to strike the defense of contributory negligence, and the court granted their motion. Thereafter, the plaintiffs replied to and denied the remaining special defenses.

On September 4, 1984, the morning of the first day of trial, the plaintiffs, with leave of the court, filed an amended complaint withdrawing the contract count and retaining the count in negligence. On September 6, 1984, the defendant submitted its answers and special defenses to the amended complaint. Over the plaintiffs’ objection, the defendant filed the three special defenses to the tort claim which had been addressed previously only to the contract claim. The defendant also reintroduced the defense of contributory negligence which had been stricken by the court. The court allowed all the contract defenses including privity of contract and mitigation of damages to stand as defenses to the tort claim, and allowed the defense of contributory negligence to be reintroduced.

On September 7, 1984, after they completed the presentation of their case, the plaintiffs submitted a written motion to amend their complaint by adding the allegation that the action was brought pursuant to General Statutes § 52-592, the accidental failure of suit statute. This was done in an attempt to avoid the defense of the statute of limitations. The motion to amend was denied by the court.

During the presentation of the case, the court heard the testimony of Judy Shek. Shek was the clerk to whom payment had been made, and she testified that she had told the defendant’s credit and collection department of such payment. The plaintiffs interpreted this testimony as evidence that the defendant turned off the plaintiffs’ gas service despite its knowledge that the bill had been paid. On September 10, 1984, the plaintiffs made several additional motions to the court. The plaintiffs attempted to introduce an amended reply and special defenses to the answer which the defendant had filed on September 6, 1984. The plaintiffs’ amended reply repeated the allegation of General Statutes § 52-592, and they attached a copy of the federal complaint and the judgment of October 3, 1978, dismissing the federal action, to their pleading. Also included, as a special defense to the statute of limitations, was an allegation pursuant to General Statutes § 52-595, claiming fraudulent concealment of a cause of action based on intentional tort. The court denied the motion to file this amended reply.

The plaintiffs also moved to amend their complaint to include counts in intentional tort, violation of Connecticut Unfair Trade Practices Act, fraudulent concealment of a cause of action, and intentional breach of contract, which motion was denied. The court also denied the plaintiffs’ motion to strike the statute of limitations defense.

On September 11,1984, after the plaintiff rested, the court, upon motion of the defendant, directed the jury to return a verdict for the defendant on the basis of the defense of the statute of limitations. Thereupon, the plaintiff filed a motion to set aside the verdict, which motion, after a hearing, was denied.

Each of the plaintiffs’ claims of error, in effect, questions the legitimacy of the court’s action in the exercise of its discretion. The plaintiffs’ first claim, that the court erred in directing a verdict for the defendant on the basis of the statute of limitations, is without foundation in law. The motion for a directed verdict was made only after the plaintiffs had rested their case. The only action before the trial court was a single count negligence complaint originally filed on October 23, 1978. The defendant had properly and affirmatively asserted the defense of the statute of limitations. The plaintiffs’ own evidence had conclusively established that the alleged negligent acts had occurred no later than March, 1974, and that any resultant damage was suffered by that date. The times and places of the occurrences were established by the pleadings as well as by the evidence. The date of the filing of the pleadings, the allegations therein, the defendant’s answer admitting the dates on which the alleged incidents occurred, and the evidence supplied by the plaintiffs, were all before the court and clearly showed that the events complained of took place more than four years prior to the plaintiffs’ institution of the action. The time interval between the filing of the complaint and the acts and damages complained of was not in dispute, and the court properly determined as a matter of law that a directed verdict was warranted. The court properly invoked General Statutes § 52-216, which states in part that “[t]he court shall decide all issues of law and all questions of law arising in the trial of any issue of fact; and, in committing the action to the jury, shall direct them to find accordingly. . . .’’There were no longer any disputed factual issues in the case that bore on the statute of limitations defense. As far as the defense of the statute of limitations was concerned, there was nothing for the jury to decide. The court’s action is amply supported by the law. “[WJhere the judgment in a case heard before a jury depends wholly on a question of law, so that any other verdict than the one so required would inevitably be set aside upon review, it has long been the practice for the judge to direct the jury to bring in a particular verdict. It is merely reaching more speedily and directly a result which would inevitably be reached in the end.” People’s Savings Bank v. Borough of Norwalk, 56 Conn. 547, 556, 16 A. 257 (1888).

The plaintiffs’ second claim of error also fails. The trial court’s denial of the plaintiffs’ motion to amend their reply to the defense of the statute of limitations was a proper and permissible exercise of its discretion. Wallingford v. Glen Valley Associates, Inc., 190 Conn. 158, 161, 459 A.2d 525 (1983); Wesson v. F. M. Heritage Co., 174 Conn. 236, 239, 386 A.2d 217 (1978); DuBose v. Carabetta, 161 Conn. 254, 263, 287 A.2d 357 (1971). In the exercise of that discretion, pleadings may be amended before, during and after trial to conform to the proof, and the trial judge’s ruling will be disturbed only upon a clear showing of abuse of discretion. Connecticut Bank & Trust Co. v. Wilcox, 3 Conn. App. 510, 490 A.2d 95, cert. granted, 196 Conn. 806, 494 A.2d 904 (1985). The court’s ruling is entitled to great weight on appeal. Bielaska v. Waterford, 196 Conn. 151, 154, 491 A.2d 1071 (1985); Sansone v. Lettieri, 4 Conn. App. 466, 467, 495 A.2d 720 (1985).

In ruling on the plaintiffs’ request to amend, the trial court reasoned (1) that the amendment was untimely, (2) that the defendant justifiably relied on the plaintiffs’ five year failure to plead specially a matter in avoidance of a properly pleaded special defense, (3) that permitting the amendment would result in the interjection of new and potentially complicated legal issues in a case where the trial testimony had already been taken, and (4) that permitting the amendment would delay and confuse the trial of the case. We find these reasons to be compelling and that they support the court’s denial of the request to amend. The plaintiffs are charged with the knowledge of the rules of practice and should have pleaded more than a simple denial to the defense of the statute of limitations if they wished to plead in avoidance. Practice Book § 172 requires that matters in avoidance of an affirmative defense in an answer or counterclaim shall be specially pleaded in the reply. We cannot say that the trial court acted unreasonably and contrary to the law when it determined that a pleading that should have been made five years previously was untimely when made after the trial commenced.

The plaintiffs’ final claim of error, that the court improperly refused its attempt to amend its complaint to add a count in fraudulent concealment, is without merit. The legal principles supporting the court’s action as to the defendant’s second claim of error are applicable to this claim of error. The requested amendment sought to add a cause of action not previously pleaded after the plaintiffs rested their case. The court properly exercised its discretion in denying the plaintiffs’ motion.

There is no error.

In this opinion the other judges concurred.

       The plaintiffs are Aaron Simmons, his wife Florence Simmons and their children, Karen and Rita Simmons.


text:
    Ines D. Russo et al. v. Catherine Terek
    (4041)
    Dupont, C. J., Borden and Spallone, Js.
    Argued March 11 —
    decision released May 6, 1986

      Manon W. Russell, for the appellants (plaintiffs).

      Ralph L. Palmesi, for the appellee (defendant).
   Spallone, J.

The plaintiffs are appealing from the judgment of the trial court rendered on a factfinder’s report. The plaintiffs own real estate located directly behind land owned by the defendant, Catherine Terek. The only access to the plaintiffs’ land is by means of an express right of way, twelve feet in width, running west to east along the southerly boundary of the defendant’s land.

In 1927, Frank D’Elia, who at that time was the sole owner of the properties now owned by the plaintiffs and the defendant, conveyed by warranty deed the property presently owned by the defendant and retained the property presently owned by the plaintiffs. The deed reserved a right of way in favor of the parcel retained by Frank D’Elia. The reservation read in part that the grantor was “[reserving however unto myself, my heirs and assigns a right of way Twelve (12) feet in width abutting the southerly boundary line for the passage of pedestrians and vehicles of all kinds to and from certain property . . . which easements shall be perpetual and appurtenant.” Through a series of deeds, the last one dated May 5, 1978, the defendant became the sole owner of the parcel subject to the easement. Each deed contained the same reservation of easement. The plaintiffs acquired their parcels upon the distribution of the estate of Frank D’Elia on August 24, 1983.

In 1951, a predecessor in title to the defendant constructed on the easement an outdoor fireplace, which was six feet high and eight feet wide. The fireplace effectively blocks any passage by a motor vehicle, and thereby limits the use of the right of way to foot passage only. Since 1956, the defendant has continuously used the fireplace for seasonal outdoor cooking.

In the late 1950’s, the defendant and her husband, Albert Terek, cultivated a garden and planted shrubbery, trees and a series of lilac bushes on the right of way east of the fireplace. This made the passage of motor vehicles impossible and pedestrian traffic very difficult.

The plaintiffs brought this action in three counts. The first sought injunctive relief to prevent the defendant from interfering with the plaintiffs’ right of way, the second claimed a prescriptive use of a right of way on other land of the defendant, and the third claimed an easement by necessity. The defendant counterclaimed seeking judgment that the plaintiffs’ easement was extinguished by prescriptive use.

The matter was referred to a factfinder who, after a full hearing, filed his finding of facts and memorandum of decision in which he found that the plaintiffs’ express right to use the right of way by motor vehicle had been extinguished and refused to find that the plaintiffs had acquired any right of way by prescription or necessity.

The trial court accepted the report of the factfinder and, after overruling the plaintiffs’ objection to the fact-finder’s memorandum of decision and finding of facts, granted the defendant’s motion for judgment. The judgment rendered was that the defendant’s right to maintain the fireplace on the plaintiffs’ right of way was established by prescription, that the plaintiffs’ right to pass by motor vehicle over the right of way was extinguished, that the plaintiffs’ right of way was limited to pedestrian use only, passing to the south of the fireplace, and that the plaintiffs had the right to remove any vegetation that impeded their passage by foot over the right of way.

On appeal, the plaintiffs have claimed as error the conclusions of the factfinder (1) that the plaintiffs’ right of passage and repassage of motor vehicles over the full length of the right of way was extinguished, (2) that the plaintiffs had not acquired a prescriptive right to park motor vehicles on the right of way, and (3) that the plaintiffs had not acquired a prescriptive right to pass on foot on other land of the defendant situated to the north of the fireplace. We disagree.

An express reservation of easement may be lost by prescription. “ ‘[I]f the servient owner [the defendant here] should by adverse acts lasting through the prescriptive period obstruct the dominant owner’s [the plaintiffs here] enjoyment, intending to deprive him of the easement, he may by prescription acquire the right to use his own land free from the easement.’ ” American Brass Co. v. Serra 104 Conn. 139, 146, 132 A. 565 (1926); Schroeder v. Taylor, 104 Conn. 596, 605, 134 A. 63 (1926); 28 C.J.S., Easements §§ 53, 63; 2 Thompson, Real Property § 445. Such is clearly the case here, where the factfinder concluded that the right of passage and repassage by motor vehicle, although expressly reserved in the easement, was nevertheless extinguished by the adverse acts of the defendant for the required period of time.

The trial court accepted the factual findings contained in the factfinder’s report and thereby adopted them as its own. The factfinder found expressly that the defendant’s use of the fireplace located on the right of way was “open, hostile, visible, notorious, adverse, uninterrupted and [was a] continuous act by the defendant and her predecessors, acting under claim of right, as regards plaintiffs’ right of way, and effectively blocked the possibility of vehicular travel from Main Street to plaintiffs’ parcel for the prescription period (15 years) before institution of suit.” See General Statutes § 47-37; Reynolds v. Soffer, 190 Conn. 184, 187, 459 A.2d 1027 (1983); Kaiko v. Dolinger, 184 Conn. 509, 510, 440 A.2d 198 (1981); Francis v. Hollauer, 1 Conn. App. 693, 695, 475 A.2d 326 (1984).

The factfinder concluded further that the level of adverse activity on the defendant’s land, i.e., parking on the easement and walking on the defendant’s land to the north of the fireplace, did not rise to that describable as “notorious, uninterrupted and continuous.” He found that “on a few occasions” since the erection of the fireplace the plaintiffs drove as far as the fireplace, and presumably parked there and then proceeded on foot to their own land, and that “on occasions” they passed to the left of the fireplace and stepped on the defendant’s land. The fireplace was erected in 1951. Certainly, these “few occasions” cannot, in reason and logic, be construed as meeting the requirement of notorious, uninterrupted and continous acts over a period of fifteen years.

The factfinder’s conclusions are fully supported by the evidence elicited at the trial. The use to which the parties put the easement was determined by the fact-finder after a full hearing and was accepted by the court without change. The plaintiff is asking us to retry the case. We cannot and will not. On appeal, the function of this court is limited solely to the determination of whether or not the decision of the trial court was clearly erroneous. Practice Book § 3060D; Damora v. Christ-Janer, 184 Conn. 109, 113, 441 A.2d 61 (1981); Ram Roofing and Sheet Metal Co. v. A. B. C. Plumbing and Heating, Inc., 2 Conn. App. 54, 56, 475 A.2d 341 (1984). It is the province of the trial court to pass upon the credibility of the witnesses and the weight to be afforded the evidence. Edgewood Construction Co. v. West Haven Redevelopment Agency, 170 Conn. 271, 272, 365 A.2d 819 (1976); Essex Savings Bank v. Leeker, 2 Conn. App. 98, 102, 476 A.2d 1071 (1984). This court cannot find facts nor draw conclusions from primary facts found, but can only review such findings to determine whether they could legally, logically and reasonably be found, thereby establishing that the trial court could reasonably conclude as it did. Appliances v. Yost, 186 Conn. 673, 676-77, 443 A.2d 486 (1982); Hallmark of Farmington v. Roy, 1 Conn. App. 278, 280-81, 471 A.2d 651 (1984). We see no merit to any of the plaintiffs’ claims of error.

There is no error.

In this opinion the other judges concurred.

       “An obstruction by the servient estate . . . to which the owner of the easement does not consent will not extinguish the [owner’s] right, unless the obstruction is of such character and is continued for such time as to work an extinguishment by adverse possession. ...” (Footnote omitted.) 28 C.J.S., Easements § 53. See, e.g., Kelly v. Ivler, 187 Conn. 31, 450 A.2d 817 (1982).


author: Bieluch, J.

text:
    State of Connecticut v. Curtis Upshaw, Jr.
    (2833)
    Dupont, C. J., Spallone and Bieluch, Js.
    Argued December 4, 1985 —
    decision released May 6, 1986

      Thomas G. Merrill and Margaret E. Flynn, certified legal interns, with whom was ToddD. Fernow, for the appellant (defendant).

      Roland D. Fasano, assistant state’s attorney, with whom, on the brief, was Arnold Markle, state’s attorney, for the appellee (state).
   Bieluch, J.

The defendant, Curtis Upshaw, Jr., has appealed from the judgment of the trial court rendered in accordance with a jury verdict finding him guilty of one count of attempted sexual assault in the first degree in violation of General Statutes §§ 53a-49, 53a-70. The defendant claims that the court erred (1) in denying his motion for judgment of acquittal after the state had rested its case on the ground that the state had failed to present evidence demonstrating that the defendant had the requisite specific intent to commit sexual assault in the first degree, and (2) in denying his motion to discharge the jury on the ground that the state had committed prosecutorial misconduct by “systematically” exercising its peremptory challenges to exclude all blacks from the jury selected in this case. We find no error.

The jury could reasonably have found the following facts. The complainant arrived at the Greyhound bus terminal on George Street in New Haven at approximately 10 p.m. on April 7, 1983. She was returning home from college for the Easter holiday, when she found that the terminal was closed. This prevented her from using the public telephone in the terminal to call for a ride home.

Five or six men were standing outside the terminal, one of whom was the defendant. He told the complainant that if she wanted to get a taxi she should follow him, which she hesitatingly did. The defendant led her around the building toward the rear of the terminal when he suddenly turned to face her, pushed her against a side doorway and held her by the head and neck as well as by the mouth so that she could not cry out. The defendant repeatedly stated to her that he was going to “fuck [her] up a lot of times.” He then directed her to walk calmly beside him to the parking lot in the rear, where two buses were parked.

At this point, the complainant removed the defendant’s hand from her mouth and, after asking him not to hurt her, offered him $50. He told her that he did not want her money. She then began to struggle. The defendant mistook the complainant’s attempt to reach a canister of mace in her knapsack for an effort to reach her purse and began to choke her, repeating that he did not want her money. The complainant then broke free and, as she lunged forward to get out of the doorway, the defendant grabbed her by the waist. When she then screamed, the defendant punched her on the nose, at the same time calling her a bitch and running away.

Having been let loose, the complainant ran toward a cab which was approaching on the street. She asked for and received assistance from the cab driver and his passenger. She pointed the defendant out to the cab driver as they drove toward him, and, despite her opposition, the cab driver radioed to another cab driver, requesting police assistance.

When the police arrived, the complainant accompanied them back to the terminal. She identified the defendant, who was seen walking away from the terminal. The defendant was apprehended, and both he and the victim were driven to the police station. The complainant was thereafter taken to Yale-New Haven Hospital for medical treatment. She was informed that although her nose was bruised and swollen, it was not broken. From there, she returned to the police station to be photographed and to give a written statement regarding the incident.

The defendant claims error in that the state failed to sustain its burden of proving that he had attempted to commit sexual assault in the first degree upon the complainant. By this claim, the defendant disputes the quality of the evidence against him, and the precise meaning of the declarations of his intention toward the victim. We find this argument to be without merit.

Attempts to commit a crime are punishable pursuant to General Statutes § 53a-49 (a), inter alia, when a person “(2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.” In the present case, in order for the defendant to be convicted pursuant to subsection (2) of this statute, he must have intentionally committed an act which constituted a substantial step in a course of conduct planned to culminate in his commission of sexual assault in the first degree. The standard of review by which we measure the defendant’s claim is whether, upon our viewing the evidence in the light most favorable to sustaining the jury’s verdict, “ ‘the jury could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt.’ ” State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984); see also State v. Braxton, 196 Conn. 685, 691, 495 A.2d 273 (1985).

The defendant first asserts that he did not commit an act which constituted a substantial step toward the commission of sexual assault in the first degree. In support of this argument, he points primarily to the fact that he and the complainant were fully clothed throughout the incident, and that he never actually touched her genitalia with his hand. The evidence showed, however, that he forced his leg between her legs with sufficient force to bruise her genital area. Those facts, however, are not dispositive. “To constitute a ‘substantial step,’ the conduct must be ‘strongly corroborative of the actor’s criminal purpose.’ . . . ‘The application of this standard will, of course, depend upon the nature of the intended crime and the facts of the particular case. . . . This standard properly directs attention to overt acts of the defendant which convincingly demonstrate a firm purpose to commit a crime.’ ” (Citations omitted.) State v. Green, 194 Conn. 258, 276-77, 480 A.2d 526 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 964, 83 L. Ed. 2d 969 (1985). In the case here, the defendant concededly committed an assault in the third degree upon the victim. Furthermore, he repeatedly and emphatically declared his intention by the words quoted above to sexually assault her “a lot of times” and declined an offer of money to release her. The defendant attempted to take the young lady to a more secluded location. Additionally, he attacked her with force, restraining her against a doorway, and covered her mouth to keep her from crying out for help. From this evidence, the jury could reasonably have concluded beyond a reasonable doubt that such actions and declarations constituted substantial steps aimed at compelling sexual intercourse, and corroborated an intention to engage in sexual intercourse by the use of force against the complaining witness. Such conduct constituted attempted sexual assault in the first degree, in violation of §§ 53a-49 (a) (2) and 53a-70. State v. Pena, 1 Conn. App. 344, 346, 471 A.2d 972 (1984).

The defendant’s second, and more forcefully pressed, argument on this claim is that the state did not prove that he specifically intended to commit sexual assault in the first degree, as that offense is defined in General Statutes § 53a-70. Rather, the defendant claims, the evidence presented merely demonstrates an intent “to commit some crime other than robbery.” The defendant further states that the evidence was insufficient to justify a guilty verdict because it did not “rationally exclude every reasonable hypothesis consistent with innocence and inconsistent with guilt of the charged offense.”

We note at the outset that “[t]he fact that a jury . . . could also possibly infer.from the facts to be proven at trial that the defendant might have intended to commit a crime other than that charged in the information does not preclude the submission of this case to a jury since there is a reasonable and logical basis for it to infer from the facts to be proven at trial that the defendant had the requisite intent to commit the crime charged.” State v. Morrill, 193 Conn. 602, 611, 478 A.2d 994 (1984). “Where there is sufficient evidence to support a reasonable inference that the defendant intended to commit the crime charged, whether such an inference should be drawn is properly a question for the jury to decide.” Id., 609.

“Since a determination of the defendant’s intent involves an examination of his mental state ... it necessarily must be proved by his statements or actions.” State v. Holley, 174 Conn. 22, 25-26, 381 A.2d 539 (1977); see also State v. Green, supra, 273. “This is one way of saying that a person’s intention is to be inferred from his conduct and the surrounding circumstances.” State v. Green, supra. In the present case, the inference to be drawn from the defendant’s violent conduct was bolstered by his emphatic and unequivocal repeated declaration to the victim of his intent to “fuck Pier] up a lot of times.” Given the circumstances surrounding the incident in question, the defendant’s actions, and his repeated and graphic statement of purpose for apprehending the victim, we conclude that the jury could reasonably have found that the defendant’s intent was specifically to commit sexual assault in the first degree upon the complainant.

We conclude that the jury could reasonably have found that the defendant committed a substantial step in a course of conduct planned to culminate in his commission of the crime as required to justify his conviction of attempted sexual assault in the first degree. Thus, the court did not err in denying the defendant’s motion for a judgment of acquittal.

The defendant’s second claim of error is that the court erred when it denied his motion to discharge the jury after its selection on the ground that the state “systematically” used three of its eight peremptory challenges for the selection of jurors in order to exclude blacks from the jury. The record presented by the defendant in support of this claim consists solely of that portion of the transcript relating to the court’s denial of his motion to discharge the jury. The crux of the defendant’s claim was that “[the state] has exercised challenges and the result of [its] challenges are that the three blacks who were available for jury duty have been excluded.” This, the defendant asserts, is sufficient to constitute a prima facie case of unconstitutional misuse of peremptory challenges by the state. We disagree.

In McCray v. Abrams, 750 F.2d 1113 (2d Cir. 1984), reh. denied en banc, 756 F.2d 277 (2d Cir. 1985), the court considered the issue and formulated this test by which a defendant may establish a prima facie case of unconstitutional misuse of peremptory challenges to members of the venire or jury panel: “(1) the group alleged to be excluded is a cognizable group in the community, and (2) there is a substantial likelihood that the challenges leading to this exclusion have been made on the basis of the individual venirepersons’ group affiliation rather than because of any indication of a possible inability to decide the case on the basis of the evidence presented.” Id., 1131-32. Once this prima facie case has been presented, the burden shifts to the prosecution to overcome the presumption that the action was unconstitutional. Id., 1132.

In the present case, the record before us demonstrates that, although the group which was allegedly excluded is one which is cognizable in the community, the defendant has failed to show a substantial likelihood that the state’s peremptory challenge of the black venirepersons was made on the basis of the prospective jurors’ affiliation with that group. Indeed, counsel for the defendant has not presented us with a transcript of the voir dire examination of prospective jurors for our review. Nor did counsel raise any objection to the voir dire examination until shortly before the jury was to be sworn. There is no record to support the defendant’s bald claim of “systematic” exclusion of black jurors.

In McCray v. Abrams, supra, the court expressly noted that counsel for the defendant (1) had objected, during voir dire, to the prosecutor’s alleged misuse of eleven challenges to exclude blacks from the jury, (2) had identified several minority members who were excused without reason, and (3) had identified one minority juror who would reasonably have been expected to sympathize more with the complainant than with the defendant. Id., 1133. Under those circumstances, the court there concluded that the defendant had established his prima facie case. The defendant in the present case, however, has failed to show that there is a substantial likelihood that the state’s peremptory challenge of the three black members of the jury panel was based on their race.

We note that the defendant has suggested that we conclude that the state’s use of its three peremptory challenges to black veniremen constituted a violation of article first, § 8, of the constitution of Connecticut independent of any violation of the constitution of the United States. We conclude that this case does not present a factual situation or record which requires us to measure the limits of our state constitution on this issue.

There is no error.

In this opinion the other judges concurred.

       The defendant was also convicted of one count of assault in the third degree in violation of General Statutes § 53a-61 (a) (1). He has not appealed from his conviction on that charge. A third count of interfering with an officer, a violation of General Statutes § 53a-167a, was also lodged against the defendant, but that charge was severed from the first two counts prior to trial and is not involved here.

       The defendant asserts that the definition of the term “fuck” or “fuck up” is not necessarily sexual in nature, and that in the present case it was “wholly devoid of any sexual connotation.” The circumstances of the expression here give it a meaning “loud and clear” upon which we need not elaborate. Let it suffice for us to say that robbery was not the defendant’s intent and that the jury was well within the bounds of reasonable inference in concluding that the expression, as used repeatedly, was a declaration of intent to have sexual intercourse with the victim by force as would be required to constitute a violation of General Statutes § 53a-70.

       In another case cited by the defendant, twelve of the thirteen black members of the venire were excluded from the jury. The thirteenth black was seated as an alternate. Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S. Ct. 170, 62 L. Ed. 2d 110 (1979).


text:
    State of Connecticut v. Angel R. Burgos
    (3252)
    Dupont, C. J., Hull and Spallone, Js.

      Argued February 10 —
    decision released May 6, 1986

      JohnD. Maxwell, with whom, on the brief, was Steven W. Varney, certified legal intern, for the appellant (defendant).

      Alex Andrew Knopp, special assistant state’s attorney, with whom, on the brief, were James G. Clark and MarkSolak, deputy assistant state’s attorneys, for the appellee (state).
   Spallone, J.

The defendant is appealing from the judgment rendered after his plea of nolo contendere to a substitute information charging him with possession of heroin with intent to sell, a violation of General Statutes § 21a-277 (a), and following the denial by the trial court of his motion to suppress certain seized property. He claims that the trial court erred in denying his motion to suppress (1) because the search warrant did not describe the place to be searched with adequate particularity, (2) because the search warrant was deficient in that the affidavit was based on stale information, and (3) because the probable cause recited in the affidavit was nonexistent at the time the warrant was executed.

The facts underlying the judgment are as follows. On October 3,1983, officers of the statewide narcotics task force received information from a confidential informant that the defendant, Angel Burgos, was dealing in large amounts of heroin from his residence at 76 West Avenue, Willimantic, Connecticut and that the informant had purchased heroin at the same address. The officers conducted an independent investigation to determine whether the defendant was selling heroin from his residence. The officers arranged for the informant to make purchases of heroin from the defendant at his residence during the weeks ending October 8, October 29, November 19, and December 3, 1983. After conducting field tests on the substances sold by the defendant to the informant, the officers determined them to be heroin.

Upon application and affidavit, on December 3,1983, the trial court issued a search warrant authorizing the search of the defendant’s residence, “# 76 West Avenue, Willimantic, CT, a green two story wood framed structure containing four separate apartments facing the building from West Avenue, two doors colored white are visible, entrance to 76 is gained from left side door, which has 76 in black to the left of it.” The same description is contained in the affidavit supporting the warrant. In addition, the warrant expressly authorized the police to “enter into or upon and search the place or thing described in the foregoing Affidavit and Application . . . . ” (Emphasis added.)

The warrant was executed on December 8, 1983, at which time the officers seized hundreds of packets of heroin, approximately $8000 in cash, other various and sundry items used in the narcotics trade and a .38 caliber hand gun from the defendant’s premises and thereupon arrested the defendant.

On February 17, 1984, a hearing was held on the defendant’s motion to suppress the seized property. After taking evidence, the court denied the motion. On April 10,1984, the defendant entered a plea of nolo contendere to one count of possession of heroin with intent to sell in violation of General Statutes § 21a-277 (a). The defendant’s judgment of conviction was rendered pursuant to General Statutes § 54-94a after which he filed this appeal.

The defendant’s claim that the warrant fails to describe the premises to be searched with particularity is not substantiated by the record. We recognize the requirement of the fourth amendment as precluding the issuance of a search warrant that does not adequately describe the premises to be searched. However, “if the description is such that the officer with a search warrant can with reasonable effort ascertain and identify the place intended” this mandate is satisfied. Steele v. United States No. 1, 267 U.S. 498, 503, 45 S. Ct. 414, 69 L. Ed. 757 (1925); State v. Abbott, 5 Conn. App. 441, 446-47, 499 A.2d 437 (1985). The warrant’s description of the premises “need only define the search with practical accuracy” which is satisfied if it tells the executing officers where to go and what to enter. United States v. Fitzmaurice, 45 F.2d 133, 135 (2d Cir. 1930).

A search warrant directed against a multiple-occupancy structure, as here, will be deemed valid if it describes “the particular subunit to be searched with sufficient definiteness to preclude a search thereunder of other units located in the larger structure and occupied by innocent persons.” Annot., 11 A.L.R.3d 1330, 1333 (1967); United States v. Bedford, 519 F.2d 650, 654-55 (3d Cir. 1975), cert. denied, 424 U.S. 917, 96 S. Ct. 1120, 47 L. Ed. 2d 323 (1976); State v. Abbott, supra, 447. A more particular description obviously lessens the likelihood of a general search of such a structure. The particularity requirement will be met by including the correct address of the building and by naming the individual whose apartment is to be searched. See United States v. Bedford, supra.

The warrant and the affidavit fully supply the information pinpointing the place to be searched. In addition to the description recited above, the warrant directs the executing officer to the affidavit which contains numerous references to the apartment at 76 West Street as being the residence of the defendant. Our review of the record leads us to the conclusion that there was more than sufficient evidence to justify the trial court’s finding that the description in the warrant and affidavit was sufficiently particularized to meet the requirement of the fourth amendment and that the court did not err in so finding.

The defendant contends next that probable cause for the issuance of the warrant did not exist because the information contained in the affidavit was stale. We disagree.

It is true that proof of probable cause for a search warrant “ ‘must be of facts so closely related to the time of the issu[ance] of the warrant as to justify a finding of probable cause at that time. Whether the proof meets this test must be determined by the circumstances of each case.’ ” State v. Abbott, supra, 444; Sgro v. United States, 287 U.S. 206, 210-11, 53 S. Ct. 138, 77 L. Ed. 260 (1932); State v. Carbone, 172 Conn. 242, 250, 374 A.2d 215, cert. denied, 431 U.S. 967, 97 S. Ct. 2925, 53 L. Ed. 2d 1063 (1977). In State v. Abbott, we stated that “[tjhis does not mean, however, as the defendant urges, that in evaluating the contents of the affidavit the issuing magistrate must completely disregard statements of informants which may be thirty to ninety days old. Even if we assume without deciding that such a delay would be the basis of a valid staleness claim if the statements were all that the magistrate had to rely on, such statements may be considered with the rest of the affidavit as part of the mosaic of probable cause. Other material in the affidavit may supplement and bring down to date the earlier materials; Sgro v. United States, supra, 211; thus giving ‘reason to believe that those circumstances still exist.’ United States v. Steeves, 525 F.2d 33, 38 (8th Cir. 1975), quoting 3 Wright, Federal Practice and Procedure § 662.” Id., 445.

Here, as in Abbott, the affidavit contained fresh, first hand information that the unlawful conduct earlier disclosed was still taking place at the premises and that a controlled buy took place within days of the application. This information “clearly supplemented and revitalized” the earlier information and this information “brought those earlier statements down to date and gave reason to believe that drugs were currently being sold . . . .” State v. Abbott, supra. The action of the judicial authority in granting the application for the warrant is fully in accord with these principles.

The defendant’s final claim that there was an unconstitutional delay between the issuance and execution of the warrant is without merit. Although this claim was not specifically raised in the trial court, we find that the allegation in the defendant’s motion to suppress, i.e., “that there was no probable cause for believing the existence of the grounds on which the warrant was issued,” is sufficiently broad to raise the claim that even if probable cause existed on the date the warrant issued, there was no reason to believe that the probable cause was still present on the date of execution.

The requirements for the proper execution of a search warrant are governed by General Statutes § 54-33c which states in part: “The warrants shall be executed within ten days and returned with reasonable promptness consistent with due process of law and shall be accompanied by a written inventory of all property seized.” (Emphasis added.) Obviously, the legislature expressed its determination that a ten day period fulfills the requirement that warrants be executed and returned expeditiously. The statute mandates execution within ten days of issuance and allows the return within a reasonable time consistent with promptness, diligence or dispatch. In this case, the warrant was executed well within the ten day limit imposed by the statute.

We must apply constitutional as well as statutory criteria, however, on the issue of the staleness of the execution of the search warrant. Situations may arise where a search warrant executed within the time limits set by statute, may not be timely enough to meet the requirement of reasonableness and therefore would be violative of the defendant’s fourth amendment rights. The question of whether a warrant was executed in a reasonable time is one to be determined according to the facts and circumstances in each case. United States v. Harper, 450 F.2d 1032, 1043 (5th Cir. 1971); United States v. Bradley, 428 F.2d 1013, 1014 (5th Cir. 1970); State v. Romano, 165 Conn. 239, 247, 332 A.2d 64 (1973). The affidavit in support of the warrant in this case recited a detailed, repetitive and continuing course of conduct by the defendant which took place over a period of two months at the same address. The nature of the proscribed conduct (selling drugs), in general and particularly under the facts and circumstances detailed in this case, support a conclusion that the illegal activities were of a continuing nature. There was no showing that the probable cause found at the issuance of the warrant somehow dissipated by the time the warrant was executed. We hold that the search warrant here was executed with reasonable promptness, diligence and dispatch and was timely as to both statutory and constitutional mandates.

In summary, the trial court’s conclusions that the search warrant described with adequate particularity the place to be searched and that probable cause existed for its issuance are fully supported by the facts and circumstances of this case and were arrived at in accordance with the law. Further, we have reviewed the defendant’s contention that probable cause did not exist at the time the search warrant was executed and find such claim to be meritless.

There is no error.

In this opinion the other judges concurred.

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