author: Lavery, J. Borden, J.,

text:
    Schaghticoke Indians of Kent, Connecticut, Inc., et al. v. Keith Potter et al.
    (7919)
    Borden, Foti and La very, Js.
    Argued November 2, 1989
    decision released May 16, 1990

      Grace M. Dodier, assistant attorney general, with whom, on the brief, were ClarineNardi Riddle, attorney general, and Robert E. Walsh, assistant attorney general, for the appellees (intervening plaintiffs).
   Lavery, J.

This case arises from a contract action that the plaintiff, the Schaghticoke Indians of Kent, Connecticut, Inc. (the Schaghticoke Indians), instituted against the defendants Keith Potter and Alan Russell. The complaint alleged that a contract for the sale of timber between Potter, an independent logger, and Russell, a member of the Schaghticoke Indians, had resulted in substantial damage to the Schaghticoke tribal reservation. After commencement of the suit, the state of Connecticut and the commissioner of environmental protection (the state) received permission to intervene as plaintiffs. Thereafter, the defendant Russell moved to dismiss the action, arguing that the Superior Court lacked civil jurisdiction over an Indian tribal dispute. The trial court granted the motion and, in its memorandum of decision, characterized the dispute as concerning whether Russell is actually the tribal chief, with authority to enter into contracts on behalf of the tribe. The tribe, however, does not deny in its complaint that Russell is the tribal chief. The tribe alleges only that, as chief, Russell failed to obtain the consent and approval of the tribal counsel before entering into the contract with the defendant, Potter. The tribe alleges that the defendants acted in concert in deforesting the tribe’s reservation. The state has brought this appeal. Neither the original plaintiff, the Schaghticoke Indians, nor the defendants here have joined in the appeal, filed a brief or appeared at argument.

The disposition of this appeal depends on whether the state has a sufficient interest in the outcome of the case to entitle it to bring an appeal in the absence of the Schaghticoke Indians. In Diamond v. Charles, 476 U.S. 54, 68, 106 S. Ct. 1697, 90 L. Ed. 2d 48 (1986), the United States Supreme Court held that an intervenor’s right to continue a suit in the absence of the party on whose side intervention was permitted is contingent upon a showing by the intervenor that he or she has standing. Under Connecticut law, a party may not appeal from the final judgment of a court unless that party is aggrieved. Practice Book § 4000; Nye v. Marcus, 198 Conn. 138, 141-42, 502 A.2d 869 (1985). The state’s claim to aggrieved party status is based upon General Statutes § 47-65 (a), which provides, inter alia, that the commissioner of environmental protection is responsible for the care and management of Indian reservation land. We hold that the state is not an aggrieved party because the state lacks legislative jurisdiction to regulate the Sehaghticoke Indians.

One obstacle to state jurisdiction over Indians is the notion of tribal sovereignty. Prior to the Revolutionary War, England recognized Indian tribes as sovereign, but subjugated, nations. Worcester v. Georgia, 31 U.S. 515, 544-45, 8 L. Ed. 483 (1832). In Worcester, Chief Justice John Marshall held that the treaties and laws of the Union concerning Indians “contemplate the Indian territory as completely separated from that of the states; and provide that all intercourse with them shall be carried on exclusively by the government of the Union.” Id., 557. It is clear from Justice Marshall’s opinion that after the war, the view of Indian tribes as sovereign nations continued. According to Marshall, the exercise of state jurisdiction over an Indian tribe would be valid only “with the assent of [the tribe itself] or in conformity with treaties and with acts of Congress.” Id., 560.

Article I, § 8, cl. 3, of the United States constitution gives Congress plenary authority over Indian affairs. Pursuant to that authority, Congress in 1953 enacted Public Law 83-280 to enable states to assume the federal government’s role and acquire jurisdiction over Indian matters. This legislation was enacted out of “congressional concern over law-and-order problems on Indian reservations and the financial burdens of continued federal jurisdictional responsibilities on Indian lands . . . .” Washington v. Yakima Indian Nation, 439 U.S. 463, 488, 99 S. Ct. 740, 58 L. Ed. 2d 740 (1979).

Public Law 83-280 granted criminal and civil jurisdiction over Indian affairs outright to five states, and, for the remainder of the states, the act set out certain procedures that must be followed before jurisdiction over Indians could be exercised. If a state not expressly granted jurisdiction fails to follow the procedure set out in the act, then the state does not have jurisdiction over Indians. Kennerly v. District Court of Montana, 400 U.S. 423, 91 S. Ct. 480, 27 L. Ed. 2d 507 (1971); Nenna v. Moreno, 132 Ariz. App. 565, 566, 647 P.2d 1163 (1982). The state of Connecticut failed to acquire civil jurisdiction over Indian affairs under Public Law 83-280 through compliance with § 7 of the act. The Connecticut General Assembly would have had to bind the state to assumption of civil jurisdiction by affirmative legislation.

After 1968, Connecticut could no longer assume civil jurisdiction over Indian affairs simply by passing legislation. In that year, Congress passed the Indian Civil Rights Act. Section 403 of the 1968 Act repealed § 7 of Public Law 83-280. See 25 U.S.C. 1323 (b). Sections 401 and 402 of the 1968 Act replaced § 7 of Public Law 83-280. See 25 U.S.C. 1321 (a) and 1322 (a). Under § 402 of the 1968 Act, Connecticut could only assume civil jurisdiction over Indian affairs through the consent of the Indian tribes involved.

States that acquired jurisdiction over Indian affairs under § 7 of Public Law 83-280 prior to its repeal in 1968 are exempt from the requirement of obtaining tribal consent. Section 403 of the 1968 Act expressly provides that the repeal of § 7 of Public Law 83-280 “shall not affect any cession of jurisdiction made pursuant to such section prior to its repeal.” 25 U.S.C. § 1323 (b); see also Kennerly v. District Court of Montana, supra, 426 n.2.

We hold for the following reasons that the state of Connecticut has failed to acquire civil jurisdiction over the Indian tribes within its borders under the federal statutes. There is no jurisdiction under the Indian Civil Rights Act as the trial court found that the state never obtained the consent of the Schaghticoke tribe pursuant to 25 U.S.C. § 1326. Between the years of 1953 and 1968, when Public Law 83-280 was in effect, the state could have acquired civil jurisdiction through affirmative legislation, but the Connecticut General Assembly did not pass such legislation during those years.

The Connecticut statutes regarding Indian tribes are insufficient to confer civil jurisdiction under § 7 of Public Law 83-280. Under the former General Statutes (Rev. to 1958) § 47-59, entitled “Overseer of Indians,” the welfare commissioner was authorized to act as overseer of all Indian tribes residing within the state. Section 6 of Public Acts 1961, No. 304, repealed General Statutes (Rev. to 1958) § 47-59. Section 4 of Public Acts 1961, No. 304, which replaced former General Statutes § 47-59, provided in relevant part: “The welfare commissioner shall have the care and management of lands and buildings on reservations and the general care and management of all persons residing on such reservations. . . . Any person aggrieved by a decision of the welfare commissioner in regard to admission to or eviction from a reservation may appeal within one year of such decision to the court of common pleas for Hartford County or for the county in which such reservation is located.” In 1973, General Statutes § 47-65 was amended by Public Acts 1973, No. 73-660. Among other changes, the act substituted the commissioner of environmental protection in the place of the welfare commissioner. See Rolling Cloud v. Gill, 412 F. Sup. 1085 (D. Conn. 1976).

Although Public Acts 1961, No. 304, was enacted in 1961, while Public Law 83-280 was still in effect, there are several reasons why the state of Connecticut did not acquire civil jurisdiction over Indian tribes through that statute. First, Public Acts 1961, No. 304, makes no mention of Public Law 83-280, which shows that Public Acts 1961, No. 304, was not enacted for the purpose of acquiring civil jurisdiction pursuant to the federal legislation. Second, Public Acts 1961, No. 304, does not call for the assumption of civil jurisdiction over all controversies that may arise in Indian country, but is instead limited to the assumption of jurisdiction over questions “in regard to admission to or eviction from a reservation.” Finally, to hold that Connecticut has acquired civil jurisdiction over Indian tribes pursuant to Public Acts 1961, No. 304, would contradict the decision of the Connecticut federal district court in Mashantucket Pequot Tribe v. McGuigan, 626 F. Sup. 245 (D. Conn. 1986).

In Mashantucket Pequot, the court held that the state of Connecticut did not have jurisdiction to enforce its bingo statute; General Statutes § 7-169; on the reservation of the Western Pequot Tribe. Pursuant to the Connecticut Indian Land Claims Settlement, the state acquired criminal jurisdiction, but not civil-regulatory jurisdiction, over the tribe. 25 U.S.C. 1755. The court characterized General Statutes § 7-169 as civil-regulatory, as opposed to criminal, in nature, and therefore held that the statute was unenforceable on the reservation.

The Mashantucket Pequot case stands for the proposition that Connecticut does not have civil-regulatory jurisdiction over Indians in Indian country. General Statutes § 47-65 is civil-regulatory in nature. It follows that the state derives no authority from § 47-65 over Indians in Indian country.

The state contends that its jurisdiction over the Schaghticoke Indians is not preempted by federal law because the Schaghticoke reservation is not Indian country. The federal statutes apply only to Indian tribes residing in Indian country. The definition of “Indian country” includes “all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state.” 18 U.S.C. § 1151 (b). The term “Indian country” has been “defined to encompass land anywhere in the United States inhabited by a ‘dependent Indian communit[y],’ [and will include the Schaghticoke reservation] if, as a bona fide tribe of Indians, the [Schaghticoke] inhabited that land and had ‘Indian title’ to it in 1790 when the Indian Trade and Intercourse Act [25 U.S.C. 177] became law, and if the status of the [Schaghticoke] and the nature of their occupancy of the land was the same [at the time the plaintiff’s cause of action arose].” (Emphasis in original.) State v. Dana, 404 A.2d 551, 562 (Me. 1979), cert. denied, 444 U.S. 1098, 100 S. Ct. 1064, 62 L. Ed. 2d 785 (1980).

The record indicates that the Schaghticoke reservation is Indian country under 18 U.S.C. § 1151 (b). In its brief, the state cites J. De Forest, History of the Indians of Connecticut, (Republished: Scholarly Press, 1970), pp. 413-20, for the proposition that the Connecticut colony created the Schaghticoke reservation in 1752. Hence, the Schaghticoke tribe had “Indian title” to the reservation in 1790, when the Nonintercourse Act became law. Indian tribes do not hold land in fee simple absolute, and “Indian title” is nothing more than a right to occupy the land. Worcester v. Georgia, supra, 544.

There is no dispute as to the existence of the Schaghticoke tribe and that it is a native tribe in Connecticut and that it has a right to be on its reservation in Kent. This is set forth in Public Acts 1989, No. 89-368, §§16 and 22, which amended General Statutes §§ 47-59a and 47-63. The pertinent parts of those sections are as follows: “It is further recognized that said Indians have certain special rights to tribal lands as may have been set forth by treaty or other agreements, (b) The state of Connecticut further recognizes that the indigenous tribes, the Schaghticoke, the Paucatuck Eastern Pequot, the Mashantucket Pequot, the Mohegan and the Golden Hill Paugussett are self-governing entities possessing powers and duties over tribal members and reservations. Such powers and duties include the power to: (1) determine tribal membership and residency on reservation land; (2) determine the tribal form of government; (3) regulate trade and commerce on the reservation; (4) make contracts, and (5) determine tribal leadership in accordance with tribal practice and usage.” (Emphasis added.) Public Acts 1989, No. 89-368, § 16. “The following terms as used in this chapter shall have the following meanings: ‘Indian’ means a person who is a member of any of the following tribes . . . Schaghticoke . . . ‘reservation’ means : . . the Schaghticoke reservation in the town of Kent, assigned to the Schaghticoke tribe . . . .’’(Emphasis added.) Public Acts 1989, No. 89-368, § 22.

The state intervened in this lawsuit on the assumption that the Schaghticoke tribe exists as a native tribe and occupies its reservation.

In its brief, the state bases its argument that the Schaghticoke reservation is not Indian country on the fact that the federal government has not recognized the Schaghticoke tribe by naming it in a treaty, agreement or statute. The state argues that the Schaghticoke tribe cannot be considered a “dependent Indian community” under 18 U.S.C. 1151 (b) because no trust relationship, or guardian-ward relationship, was ever established between the federal government and the Schaghticoke tribe. The same argument was considered and rejected in Passamaquoddy Tribe v. Morton, 528 F.2d 370, 377-79 (1st Cir. 1975). Federal recognition of a tribe through treaty or statute is merely one method to prove tribal existence, and it is not the only method. See United States v. Sandoval, 231 U.S. 28, 34 S. Ct. 1, 58 L. Ed. 107 (1913); United States v. Boylan, 265 F. 165 (2d Cir. 1920), appeal dismissed, 257 U.S. 614, 42 S. Ct. 113, 66 L. Ed. 397 (1921); see also F. O’Toole & T. Tureen, “State Power and the Passamaquoddy Tribe: 'A Gross National Hypocrisy?’ ” 23 Me. L. Rev. 1, 18 n.96, 19-20 n.100 (1971).

The Mashantucket Pequot case put an end to jurisdiction that Connecticut has exercised since 1639. The Warwick patent of 1631 established the boundaries of Connecticut. 1F. Morgan, Connecticut as a Colony and as a State (1904), p. 251. The first settlements were established in 1635, and a separate civil government was established in 1639. Preface, General Statutes (1866 Rev.). The government was a constitutional republic. L. Mills, The Story of Connecticut (1932), p. 88. The General Court of Connecticut began to enact colonial laws in 1639. Preface, General Statutes (1866 Rev.).

In 1643, Connecticut, Massachusetts, Plymouth and New Haven formed the United Colonies of New England. Mills, supra, 132. “According to the terms of this league, each colony elected two comissioners. To these eight men was given the control of Indian affairs and foreign relations. They were entrusted with the power of declaring war or making peace. Each colony, however, reserved full right to control its own affairs. Each colony, also, was to follow the decision of six out of eight commissioners with respect to Indian affairs and foreign relations. This meant that six out of the eight men must agree on a question in order to make it binding on the four colonies. The league continued in force for forty years, or until annulled by James II, when he recalled the colonial charter of Massachusetts.” Id. The commissioners of the United Colonies of New England exercised jurisdiction over Indian tribes, and, in 1643, they tried and condemned the Indian Chief Miantonomo to death. Id., 134-35.

In 1662, the Connecticut colony obtained a charter from Charles II of England. Id., 187. “The charter was recognized as a continuation of the government already established, a guarantee of the title to the soil, and a safeguard against the aggressions of neighboring colonies and the encroachments of the Crown.” Morgan, supra, 252. The Connecticut charter conveyed land title to the colony. Worcester v. Georgia, supra, 544. Title was conveyed in accordance with English common law, which means that the Crown conveyed only such title as it had itself, and no more. Id. The title that the Crown had, and which it conveyed, consisted of “the exclusive right of purchasing such lands as the natives were willing to sell.” Id. The grant of land contained in the Connecticut charter “asserted a title against Europeans . only, and [was] considered as blank paper so far as the rights of the natives were concerned.” Id., 545.

Once the Connecticut charter was granted to the colony, the colony had no right to carry on relations with foreign governments or with Indian tribes. The Connecticut charter includes a general power to make defensive war, for good cause, upon the natives. Id., 544. It also contains provisions calling for the religious instruction of Indians. Id., 545. The English government viewed the tribes as sovereign nations, and all authority to deal with the Indian tribes, aside from the authority expressly granted to the colonies through charter, was retained by the English sovereign. Id., 548.

It is clear from a proclamation made by the king of England in 1763 that the governors of the colonies were forbidden to exercise authority over Indian tribes residing on land that had not yet been purchased from them. See id., 546-47; see also Mohegan Tribe v. Connnecticut, 638 F.2d 612, 615 (2d Cir. 1980). Nevertheless, in 1669 the General Assembly passed a law providing “any indian that shall be guilty of wilfully murdering any other indian shall be put to death, on being thereof convicted before the superior court.” See General Statutes (1808 Rev.) Title XC, § 2. Then in 1717, a bill was passed that provided, among other things, “That it shall be the duty of the civil authority and selectmen of such towns wherein are any tribe of indians, to take care that they be well acquainted with the laws of the [land], made for punishing such immoralities as they may be guilty of: and make them sensible that they are liable to the penalties, in case they transgress the laws.” General Statutes (1808 Rev.) Title XC, § 1.

After the American revolution, the United States, “succeeded to all the claims of Great Britain, both territorial and political.” Worcester v. Georgia, supra, 544. The constitution therefore granted Congress plenary authority over Indian tribes. U.S. Const., art. I, § 8, cl. 3. Nevertheless, Connecticut’s colonial statutes concerning Indians were not repealed. See General Statutes (1808 Rev.) Title XC.

In 1821, the General Assembly passed legislation calling for the appointment of an “overseer of indians.” General Statutes (1821 Rev.) Title 50. In 1832, the Supreme Court decided Worcester v. Georgia, supra, holding that Indian tribes were subject to the exclusive jurisdiction of the federal government. Nevertheless, Connecticut legislation creating the position of “overseer of indians” was not repealed until the passage of Public Acts 1961, No. 304. See, e.g., General Statutes (1835 Rev.) Title 52; General Statutes (1902 Rev.) chapter 242.

The statutes creating an “overseer of indians” are the predecessors of the current General Statutes § 47-65. Section 47-65 purports to grant civil-regulatory authority to the state. Under the Mashantucket Pequot case, such authority is preempted by federal law. The foregoing history shows that the state never had the legal right to assume such authority in the first place.

Our inquiry does not end with the determination that Connecticut civil-regulatory jurisdiction over Indian tribes is preempted by federal legislation. In Williams v. Lee, 358 U.S. 217, 220, 79 S. Ct. 269, 3 L. Ed. 2d 251 (1959), the United States Supreme Court held that states not having acquired jurisdiction pursuant to the federal statutes may nevertheless exercise jurisdiction in a case involving Indians as long as the exercise of that jurisdiction does not infringe “on the right of reservation Indians to make their own laws and be ruled by them.” Under the Williams infringement test, state courts can adjudicate common law tort and contract claims brought by Indians against non-Indians because such lawsuits did not interfere with tribal self-government. See Three Affiliated Tribes v. Wold Engineering, 467 U.S. 138, 148-49, 104 S. Ct. 2267, 81 L. Ed. 2d 113 (1984) (Three Tribes I).

More recent Supreme Court cases reveal a “ ‘ “trend . . . away from the idea of inherent Indian sovereignty as [an independent] bar to state jurisdiction and toward reliance on federal pre-emption.” ’ ” Three Affiliated Tribes v. Wold Engineering, 476 U.S. 877, 884, 106 S. Ct. 2305, 90 L. Ed. 2d 881 (1986) (Three Tribes II). The preemption analysis “requires jurisdiction to be determined by examining treaties involving the particular Indian tribe and by examining federal legislation to determine if Congress intended the state to assume jurisdiction.” T. Lynaugh, “Developing Theories of State Jurisdiction Over Indians: The Dominance of the Preemption Analysis,” 38 Mont. L. Rev. 63, 84 (1977). The rise of preemption analysis is due to the fact that the Supreme Court now takes a more limited view of tribal sovereignity. An Indian tribe’s “powers of self-government . . . involve only the relations among members of [the] tribe.” United States v. Wheeler, 435 U.S. 313, 326, 98 S. Ct. 1079, 55 L. Ed. 2d 303 (1978); see also Brendale v. Confederated Tribes & Bands of Yakima Indian Nation, 492 U.S. 408, 425-26, 109 S. Ct. 2994, 106 L. Ed. 2d 343 (1989).

The dominance of preemption analysis in Supreme Court cases presents the question whether the sort of residual state court jurisdiction allowed in Williams v. Lee, supra, is preempted by federal law. One commentator, writing in 1977, speculated that the Supreme Court’s reliance on preemption analysis, “together with Public Law 280 and the Indian Civil Rights Act of 1968, support the argument that the later enactments divested the state courts of jurisdiction they previously exercised, correctly or incorrectly, by providing a formal procedure for assumption of jurisdiction which, absent such formal assumption, results in the loss of all jurisdiction.” Lynaugh, supra, 84 n.122. The Supreme Court expressly rejected this position, however, in Three Tribes I, supra. In Three Tribes I, the Supreme Court held that jurisdiction exercised by state courts over Indian tribes prior to the enactment of Pub-lie Law 83-280 is not preempted by that act, and is a valid exercise of jurisdiction as long as it meets the Williams infringement test. Id., 150-51.

From the foregoing, we draw the following conclusions. Connecticut lacks civil-regulatory jurisdiction over Indian tribes. Mashantucket Pequot Tribe v. McGuigan, supra. General Statutes §§ 47-64, 47-65, 47-66 and 47-66g, the basis of the commissioner’s statutory-rights and obligations to manage tribal lands and to sue in her name to recover misappropriated tribal property, are civil-regulatory in nature and, therefore, are preempted and rendered invalid by federal law. It follows that the state lacks aggrieved party status because it does not derive a recognizable interest in this case through General Statutes § 47-65. As to the courts of this state, they may exercise civil jurisdiction over lawsuits involving Indian tribes to the extent that our state courts exercised such jurisdiction prior to the enactment of Public Law 83-280 in 1953 and to the extent that the exercise of such jurisdiction does not interfere with tribal self-government. Three Tribes I, supra.

The appeal is dismissed.

In this opinion Foti, J., concurred.

Borden, J.,

dissenting. It may well be that the scholarly legal and historical analysis presented by the majority is correct, and that General Statutes § 47-65 is unconstitutional as violative of the federal supremacy clause. Of course, that would necessarily mean that the rest of chapter 824; General Statutes §§ 47-59a through 47-66g; is also unconstitutional. On this record, however, for two related reasons, I cannot join in a decision having such monumental ramifications.

First, no challenge to the constitutionality of General Statutes § 47-65 was presented in this appeal. The majority raised this issue sua sponte. Until such a preemption challenge is clearly presented, we should presume that a state statute is not preempted by federal law, unless, perhaps, it is clear beyond cavil that it is preempted. I do not believe that this record presents such clarity.

Second, the sua sponte nature of the declaration of statutory unconstitutionality has deprived the state of an opportunity to respond. We have on occasion dismissed an appeal sua sponte for lack of subject matter jurisdiction without first affording the appellant an opportunity to respond to our jurisdictional concerns. Here, however, the majority’s determination that the state has no standing to appeal derives from a declaration of unconstitutionality of an entire statutory scheme. Appellate prudence mandates that the issue be set down for reargument, with notice to the state of the nature of our jurisdictional doubts.

I, therefore, dissent from the dismissal of the appeal. I would set the case down for reargument on the issue of whether the state has standing to appeal based on General Statutes § 47-65.

       This constitutional provision provides in relevant part that Congress has the authority, “To regulate Commerce with foreign Nations, and among the Several States, and with the Indian Tribes.”

       Act of August 15, 1953, ch. 505, 67 Stat. 588, codified in part as amended at 25 U.S.C. § 1162 (1970) and 28 U.S.C. § 1360 (1970).

       California, Minnesota, Nebraska, Oregon and Wisconsin. To this group, Alaska was added in 1958. Act of August 8, 1958, 72 Stat. 545, codified at 18 U.S.C. § 1162 (1970) and 28 U.S.C. § 1360 (1970).

       The Act provides in full:
      “AN ACT
      “To confer jurisdiction on the States of California, Minnesota, Nebraska, Oregon, and Wisconsin, with respect to criminal offenses and civil causes of action committed or arising on Indian reservations within such States, and for other purposes.
      “Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that chapter 53 of title 18, United States Code, is hereby amended by inserting at the end of the chapter analysis preceding section 1151 of such title the following new item:
      “ ‘1162. State jurisdiction over offenses committed by or against Indians in the Indian country.’
      “Sec. 2. Title 18, United States Code, is hereby amended by inserting in chapter 53 thereof immediately after section 1161, a new section, to be designated as section 1162, as follows:
      “ ‘§ 1162. State jurisdiction over offenses committed by or against Indians in the Indian country
      “ ‘(a) Each of the States listed in the following table shall have jurisdiction over offenses committed by or against Indians in the areas of Indian country listed opposite the name of the State to the same extent that such State has jurisdiction over offenses committed elsewhere within the State, and the criminal laws of such State shall have the same force and effect within such Indian country as they have elsewhere within the State:
      “ ‘State of Indian country affected
      California All Indian country within the State
      Minnesota All Indian country within the State, except the Red Lake Reservation
      Nebraska All Indian country within the State
      Oregon All Indian country within the State, except the Warm Springs Reservation
      Wisconsin All Indian country within the State, except the Menominee Reservation

        “ ‘(b) Nothing in this section shall authorize the alienation, encumbrance, or taxation of any real or personal property, including water rights, belonging to any Indian or any Indian tribe, band, or community that is held in trust by the United States or is subject to a restriction against alienation imposed by the United States; or shall authorize regulation of the use of such property in a manner inconsistent with any Federal treaty, agreement, or statute or with any regulation made pursuant thereto; or shall deprive any Indian or any Indian tribe, band, or community of any right, privilege, or immunity afforded under Federal treaty, agreement, or statute with respect to hunting, trapping, or fishing or the control, licensing, or regulation thereof.
      “ ‘(c) The provisions of sections 1152 and 1153 of this chapter shall not be applicable within the areas of Indian country listed in subsection (a) of this section.’
      “Sec. 3. Chapter 85 of title 28, United States Code, is hereby amended by inserting at the end of the chapter analysis preceding section 1331 of such title the following new item:
      “ ‘1360. State civil jurisdiction in actions to which Indians are parties.’
      “Sec. 4. Title 28, United States Code, is hereby amended by inserting in chapter 85 thereof immediately after section 1359 a new section, to be designated as section 1360, as follows:
      “ ‘§ 1360. State civil jurisdiction in actions to which Indians are parties
      “ ‘(a) Each of the States listed in the following table shall have jurisdiction over civil causes of action between Indians or to which Indians are parties which arise in the areas of Indian country listed opposite the name of the State to the same extent that such State has jurisdiction over other civil causes of action, and those civil laws of such State that are of general application to private persons or private property shall have the same force and effect within such Indian country as they have elsewhere within the State:
      “ ‘State of Indian country affected
      California All Indian country within the State
      Minnesota All Indian country within the State, except the Red Lake Reservation
      Nebraska All Indian country within the State
      Oregon All Indian country within the State, except the Warm Springs Reservation
      Wisconsin All Indian country within the State, except the Menominee Reservation
      “ ‘(b) Nothing in this section shall authorize the alienation, encumbrance, or taxation of any real or personal property, including water rights, belonging to any Indian or any Indian tribe, band, or community that is held in trust by the United States or is subject to a restriction against alienation imposed by the United States; or shall authorize regulation of the use of such property in a manner inconsistent with any Federal treaty, agreement, or statute or with any regulation made pursuant thereto; or shall confer jurisdiction upon the State to adjudicate, in probate proceedings or otherwise, the ownership or right to possession of such property or any interest therein.
      “ ‘(c) Any tribal ordinance or custom heretofore or hereafter adopted by an Indian tribe, band, or community in the exercise of any authority which it may possess shall, if not inconsistent with any applicable civil law of the State, be given full force and effect in the determination of civil causes of action pursuant to this section.’
      “Sec. 5. Section 1 of the Act of October 5, 1949 (63 Stat. 705, ch. 604), is hereby repealed, but such repeal shall not affect any proceedings heretofore instituted under that section.
      “Sec. 6. Notwithstanding the provisions of any Enabling Act for the admission of a State, the consent of the United States is hereby given to the people of any State to amend, where necessary, their State constitution or existing statutes, as the case may be, to remove any legal impediment to the assumption of civil and criminal jurisdiction in accordance with the provisions of this Act: Provided, That the provisions of this Act shall not become effective with respect to such assumption of jurisdiction by any such State until the people thereof have appropriately amended their State constitution or statutes as the case may be.
      “Sec. 7. The consent of the United States is hereby given to any other State not having jurisdiction with respect to criminal offenses or civil causes of action, or with respect to both, as provided for in this Act, to assume jurisdiction at such time and in such manner as the people of the State shall, by affirmative legislative action, obligate and bind the State to assumption thereof.”

       Public Law 90-284, act of April 11, 1968, 82 Stat. 79, codified as 25 U.S.C. §§ 1321 through 1326 (1970).

       Section 402 (a) provides: “The consent of the United States is hereby given to any State not having jurisdiction over civil causes of action between Indians or to which Indians are parties which arise in the areas of Indian country situated within such State to assume, with the consent of the tribe occupying the particular Indian country or part thereof which would be affected by such assumption, such measure of jurisdiction over any or all such civil causes of action arising within such Indian country or any part thereof as may be determined by such State to the same extent that such State has jurisdiction over other civil causes of action, and those civil laws of such State that are of general application to private persons or private property shall have the same force and effect within such Indian country or part thereof as they have elsewhere within that State.”

       Under § 406 of the 1968 Act, the consent of a tribe can only be obtained through a majority vote of the adults of the tribe. See 25 U.S.C. § 1326.

       Public Acts 1961, No. 304 was codified as General Statutes (Cum. Sup. 1963) §§ 47-59 through 47-66,

       Codified as General Statutes (Cum. Sup. 1963) § 47-65.

       The state has brought this appeal in reliance upon the authority of General Statutes § 47-65.

       25 U.S.C. 1751 et seq.

       “The township of Kent was sold to the original settlers by the colony; and no records or papers remain to show whether the land was usurped from the Indians, or was obtained from them by purchase. Reservations, however, were made to them: one on the west bank of the Housatonic River; and one, of two thousand acres, in the mountains: and, since there were reservations, we may conclude that there must have been, in the first place, sales. One of the only two land transactions, between the natives and the colony, to be found in the Kent records, is a deed dated December 19th, 1746.
      “The other Indian deed in the Kent records is a sale by Chere son of Weraumaug, of four hundred acres in Weraumaug’s Reserve, that is in New Preston in Washington. The price is not mentioned: Chere only declares that he has received a valuable consideration.
      “After the Connecticut people commenced their settlements in Kent, the Indians took up their residence chiefly on the west bank of the Housatonic. The settlers gradually encroached on them, by purchase and perhaps otherwise, until, about the year 1752, the Indians found themselves deprived of nearly all their lands on the plain. Mauwehu and fourteen others now subscribed a petition to the Assembly, saying that the tribe consisted of eighteen families; that they had been deprived of all their planting grounds except a small quantity which was insufficient for them; and praying that they might have a tract of unoccupied land which lay below them along the Housatonic.
      “The Assembly granted them about two hundred acres in the place designated, allowing them to cultivate it at pleasure, and to cut what timber they needed for their own use, from the greatest part of it. The tract was not, however, given in fee simple, but was to be held by the Indians at the pleasure of the colony. . . .
      “In 1775, the Assembly ordered that the lands of the Scatacooks should be leased to pay their debts and defray their expenses. It also ordered, with regard to David Sherman, that he should be bound out to service, to defray the expenses arising from his brother’s broken head. Thomas Warrups, probably a son of the old sagamore of Reading, was allowed to sell thirty acres of land to pay his debts and provide for his family. Three years after, another tract, of ten acres, was sold for the purpose of relieving the indigent circumstances of the Warrups family. . . .
      “In 1801, the Scatacooks were reduced to thirty-five idle, intemperate beings, who cultivated only six acres of ground. Their lands still amounted to twelve or fifteen hundred acres extending from the Housatonic to the New York line. The greatest portion of this tract consisted of their ancient hunting grounds, was situated among the mountains, and was rough and unsuitable for tillage. In consequence of sickness among the Indians, their overseer, Abraham Fuller, had contracted debts on their account to the amount of over four hundred dollars. He petitioned that part of the reservation might be sold, to pay him for these expenses. . . .
      “Other portions of the Scatacook lands were disposed of at various dates; and these sales, together with the appointments of overseers, constitute the annuals of the tribe in later times. . . .
      “The Scatacooks have yet a considerable tract of land on the mountain; too rough and woody indeed to be cultivated, but well adapted for supplying them with firewood. At the foot of the mountain, also, and between that and the Housatonic, they possess a narrow strip of plain, sufficient in size for gardens, watered by springs from the upper ground, and containing a few comfortable houses. The number of Indians remaining in the fall of 1849 was eight or ten of the full blood, and twenty or thirty half-breeds. A few are sober and industrious, live comfortably and have good gardens, but the great majority are lazy, immoral and intemperate. Many of them lead a vagabond life, wandering about the State in summer, and returning to Scatacook to spend the winter. Three or four are in the habit of attending preaching, and a few of the children go to school. Their funded property now amounts to about five thousand dollars, and, for the last forty years, has more than paid the annual expenses of the tribe. ...” J. De Forest, History of the Indians of Connecticut, (Republished: Scholarly Press, 1970), pp. 413-20.

       General Statutes § 47-65 provides: “(a) The commissioner of environmental protection with the advice of the Indian Affairs Council shall have the care and management of reservation lands. The commissioner and the council shall establish the boundaries of such reservations by land survey and shall file a map of the same in the land records of the appropriate towns.
      “(b) All reservation buildings not privately owned shall be subject to the care and management of the commissioner of environmental protection. The commissioner with the advice of the Indian Affairs Council shall, upon the petition of the resident make major repairs and improvements to the exterior of any such building and its heating, water, electric, sewage disposal and plumbing systems as are necessary to insure habitable living conditions. The resident of any building shall assume responsibility for the interior maintenance of floors, walls and ceilings and minor maintenance of the building and its heating, water, electric, sewage disposal and plumbing systems, provided the commissioner shall supply necessary materials for such systems.
      “(c) The council may, upon petition of an Indian resident without sufficient means to support himself, provide assistance in an amount necessary to maintain a standard of living in the home compatible with the well-being of the resident. The council shall provide other services as it deems necessary to insure the well-being of all persons residing on the reservations.
      “(d) The commissioner and the council may adopt and amend regulations pursuant to chapter 54 to carry out the provisions of subsections (a) and (b) of this section. The council shall adopt regulations which prescribe eligibility standards for assistance and services under subsection (c) of this section.
      “(e) The governor is hereby designated the administrative agent of the state to apply for any funds or other aid, cooperate and enter into contracts and agreements with the federal government, the Indian Housing Authority or any other appropriate state or local agency for the purpose of providing necessary services to housing projects to be located on Indian reservations within the state of Connecticut or for any other purpose which the Congress of the United States or the general assembly has authorized or may authorize for expenditures compatible with the services provided for in this chapter. The governor is authorized in the name of the state to make all applications, sign all documents, give assurances and do all other things necessary to carry out the provisions of this chapter.”

       Chapter 824 of the General Statutes, entitled “Indians,” contains a number of statutory provisions concerning Indian affairs and the relationship of the state to various Indian tribes.


source: Caselaw Access Project

author: Spallone, J.

license: Public Domain

text:
    Richard J. Bonelli v. Sandra A. Bonelli
    (6247)
    Spallone, Foti and Lavery, Js.
    Argued April 18
    decision released July 3, 1990

      Ruth H. Mantak, with whom, on the brief, was M. Jane Christensen, for the appellant (defendant).

      C. Michael Budlong, with whom were Terence S. Ward and, on the brief, Kathleen A. Murrett, for the appellee (plaintiff).
   Spallone, J.

This appeal is before us for the second time, now on remand from our Supreme Court. After the trial court rendered judgment in this dissolution action, the defendant wife filed motions to disqualify the trial judge on the ground that he and the plaintiff’s lawyer had served as cocounsel in a prior unrelated case. The defendant appealed the denial of her motions to reargue, to open the judgment, to disqualify the judge and for an evidentiary hearing on the issue of disqualification.

We ruled that the trial court should not have denied the defendant’s motion to open and to disqualify, and, accordingly, we did not consider the defendant’s other claims. See Bonelli v. Bonelli, 18 Conn. App. 207, 208-209, 557 A.2d 559 (1989). On appeal, our Supreme Court, finding that there was no impropriety in the trial judge’s failure to recuse himself, reversed our decision and remanded this appeal for our consideration of the remaining claims. Bonelli v. Bonelli, 214 Conn. 14, 22, 570 A.2d 189 (1990).

The unresolved issues before us are whether the trial court improperly divided the marital property and failed to award the defendant alimony and counsel fees. We affirm the trial court’s orders.

After seventeen years, the Bonellis’ childless marriage was dissolved by judgment in January, 1987. The court found that the bulk of the gross marital assets, totaling approximately $1,690,000, consisted of real estate and funds inherited by the plaintiff from his parents. The Bonellis’ yearly income was found to be generated from the interest and investment of these funds and from rents paid on the properties. The plaintiff was found to be engaged full-time in managing these assets. The defendant, although a licensed real estate broker with a master’s degree in education, had no income of her own and had been a full-time homemaker for most of the marriage, caring for the family’s two homes, her husband and her father-in-law, who had resided with the couple until his death.

Despite the parties’ representations that most of their real property was held in their joint names, the court found that the property had been either inherited by the plaintiff or acquired with inherited funds. The court ordered the partition by sale of the only parcel that the defendant had been instrumental in acquiring for the family. The defendant was ordered to quitclaim her interests in all other joint property. In dividing the marital estate, the court awarded the defendant assets valued at approximately $230,800,13 percent of the total. Because each spouse had substantial assets and good employment prospects, the court made no award of alimony or attorney’s fees.

The defendant’s claims assail what she asserts to be the gross inequity of the court’s orders. By her calculations, she was awarded a lump sum settlement of $127,243 while the plaintiff was awarded approximately $1,460,000. She claims that the court divided cash assets solely on the basis of whose name was on the account; she kept her bank account of $4323 and the plaintiff kept his account of $359,353. Contradictorily, the court did not find significant the fact that most of the property was held in the names of both spouses, and focused solely on the provenance of the property as inherited by the plaintiff.

The defendant argues that, in making this division of property, the court failed to consider her homemaking contributions or the amount that the properties appreciated in value during the marriage. The defendant received $123,000 as a share of the jointly held property but was forced to quitclaim her interest in all but one parcel, including the marital home she had maintained and improved during seventeen years of marriage. In her view, the quitclaim orders effected a $376,500 settlement from the defendant to the plaintiff.

Moreover, she has been out of the job market for almost fourteen years, yet the court failed to grant her rehabilitative alimony. From the defendant’s perspective, although neither party was found to be at fault, the court awarded her á mere 8 percent of the family assets from which she was to pay her own counsel fees, penalized her for spending her marital years as a homemaker without outside employment, deprived her of property held in her name, left her unemployed without alimony, and denied her request for visitation rights to the family pet. She urges us to find the dissolution orders to be arbitrary and unreasonable.

However much sympathy we may have for the defendant, the trial court’s factual findings may not be rejected merely because we might personally disagree with the conclusions or would have found differently had we been sitting as the finder of fact. Kaplan v. Kaplan, 186 Conn. 387, 391, 441 A.2d 629 (1982). The scope of our review of the trial court’s exercise of its broad discretion in domestic relations cases is limited to a determination of whether the court’s conclusions were correct on the law and reasonably reached on the evidence. Rostain v. Rostain, 214 Conn. 713, 716, 573 A.2d 710 (1990). The trial court has the best opportunity to observe the parties, pass on the credibility of witnesses, and weigh and interpret the evidence. Id. We will indulge every reasonable presumption that the court’s action was correct. Id.

In this case, the trial court stated that it had considered the provisions of General Statutes §§ 46b-81 and 46b-82 to determine appropriate property and support awards. The transcripts and the record disclose that the trial court questioned the defendant’s credibility, expressly stating, “I also find that the defendant’s claims, [as to her contribution to the marital assets] as each one was put to a test, whether it was by cross-examination or by rebuttal and introduction of documents, did not pass the test. Each and every claim of any significance that was tested . . . certainly did not pass muster on accuracy.”

In this action, the trial court acted within the broad parameters of discretion necessary to arrive at resolutions of the deep seated and often emotionally charged issues inherent in most dissolution actions. Our review discloses that the trial court’s factual findings are supported by the evidence and its conclusions are in accordance with applicable law. We cannot, absent a manifest abuse of discretion, intrude in this intricate process even where we disagree with the result.

The judgment is affirmed.

In this opinion the other judges concurred.


author: Per Curiam.

text:
    Susan Senie v. Leslie Carothers, Commissioner of Environmental Protection, et al.
    (8657)
    Dupont, C. J., Nokcott and Lavery, Js.
    Argued May 8
    decision released July 3, 1990

      Creighton M. English, for the appellant (plaintiff).

      David H. Wrinn, assistant attorney general, with whom, on the brief, were Clarine Nardi Riddle, attorney general, and Joseph Rubin and Brian J. Comer-ford, assistant attorneys general, for the appellee (named defendant et al.).

      Edward V. O’Hanlan, for the appellee (defendant Cedar Point Yacht Club).
   Per Curiam.

The sole issue in this case is whether failure to annex a citation to a petition of appeal from the final decision of an administrative agency of this state deprives the Superior Court of jurisdiction to entertain this appeal. The trial court granted a motion to dismiss for lack of jurisdiction and we agree.

This case is controlled by DelVecchio v. Department of Income Maintenance, 18 Conn. App. 13, 555 A.2d 1007 (1989). This court in DelVecchio said: “In addition to proper service, a valid appeal must contain a citation signed by a competent authority and contain a notice of the return date and notice of the requirement of filing an appearance. Chestnut Realty, Inc. v. CHRO, 201 Conn. 350, 356-57, 514 A.2d 749 (1986); Atkins v. Bridgeport Hydraulic Co., 5 Conn. App. 643, 645-46, 501 A.2d 1223 (1985). Here, the plaintiff failed to annex a citation to her petition. She claims that the elimination of the requirement of service by a sheriff also abolished the necessity of a citation. That is not the law; nor is this a case of first impression.

“The necessity of a citation was first ruled upon by the Appellate Session of the Superior Court in Board of Education v. State Board of Education, 38 Conn. Sup. 712, 716, 461 A.2d 997 (1983), and subsequently by this court in Atkins v. Bridgeport Hydraulic Co., supra. ‘ “The citation is a matter separate and distinct from the sheriffs return and is the important legal fact upon which the judgment rests. ... A proper citation is essential to the validity of the appeal and the jurisdiction of the court.” (Citation omitted.) Village Creek Homeowners Assn. v. Public Utilities Commission, [148 Conn. 336, 339, 170 A.2d 732 (1961)]. The purpose of General Statutes § 4-183 (b) is not to obviate the need for a citation, but rather to permit service upon the administrative agency in a manner different from ordinary civil actions, that is, by registered or certified mail.’ Atkins v. Bridgeport Hydraulic Co., supra.

“Either the lack of proper service upon the department of income maintenance or the lack of a citation would have been fatal to the plaintiffs appeal.” DelVecchio v. Department of Income Maintenance, supra, 15-16.

Since the adoption of the Uniform Administrative Procedure Act; General Statutes § 4-166 et seq.; and through every amendment since its adoption, a citation is required for the trial court to acquire jurisdiction over an administrative appeal from a state agency.

The judgment is affirmed.


author: Cretella, J.

text:
    William C. Baron et al. v. Planning and Zoning Commission of the Town of Haddam
    (8446)
    Spallone, Norcott and Cretella, Js.
    Argued April 18
    decision released July 3, 1990

      Thomas P. Byrne, for the appellant (named defendant).

      Scott W. Jezek, for the appellees (plaintiffs).
   Cretella, J.

The named defendant, Haddam planning and zoning commission (commission), appeals from the judgment of the trial court sustaining the plaintiffs’ appeal from the commission’s denial of their application for approval of a two lot subdivision in the town of Haddam. The dispositive issue is whether the court improperly substituted its interpretation of the zoning regulations for that of the board. We find that it did and we reverse.

The basis for the commission’s denial of the plaintiffs’ application was its interpretation of § 13.1.14 of the Haddam zoning regulations which provides in pertinent part that “[t]he minimum lot area shall consist of one contiguous acre of land . . . capable of accommodating a rectangle, between the front and rear yard setback lines, with a minimum side length of 150 feet . . . .” The commission interpreted that regulation to require that each side of the rectangle have a minimum length of 150 feet. The rear portion of both of the lots in the plaintiffs’ proposed subdivision did not meet the 150 foot minimum side length requirement.

In disposing of an application for a subdivision, the commission acts in an administrative capacity. J & M Realty Co. v. Norwalk, 156 Conn. 185, 190, 239 A.2d 534 (1968). In passing on subdivision plans, the commission is controlled by the regulations it has adopted, and, if the plans conform to the existing regulations, the commission has no discretion or choice but to approve them. Westport v. Norwalk, 167 Conn. 151, 157, 355 A.2d 25 (1974). The commission may not put an interpretative gloss on regulations that are clear and unambiguous. Point O’ Woods Association, Inc. v. Zoning Board of Appeals, 178 Conn. 364, 366, 423 A.2d 90 (1979). On the other hand, “[t]he full panoply of principles of statutory construction are available to aid in the construction of [ambiguous] local ordinances.” East Lyme v. Waddington, 4 Conn. App. 252, 259 n.2, 493 A.2d 903 (1985).

General Statutes § 8-6 entrusts the commission with the function of interpreting and applying its zoning regulations. Toffolon v. Zoning Board of Appeals, 155 Conn. 558, 560, 236 A.2d 96 (1967); see Krawski v. Planning & Zoning Commission, 21 Conn. App. 667, 670, 575 A.2d 1036 (1990). The trial court must determine whether the commission has correctly interpreted its regulations and applied them with reasonable discretion to the facts. Pascale v. Board of Zoning Appeals, 150 Conn. 113, 117, 186 A.2d 377 (1962). The plaintiffs have the burden of showing that the commission acted improperly. Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707, 535 A.2d 799 (1988). The trial court can sustain the plaintiffs appeal only upon a determination that the decision of the commission was unreasonable, arbitrary or illegal; Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 152, 543 A.2d 1339 (1988); McCrann v. Town Planning & Zoning Commission, 161 Conn. 65, 70-71, 282 A.2d 900 (1971). It must not substitute its judgment for that of the zoning commission and must not disturb decisions of local commissions as long as honest judgment has been reasonably and fairly exercised. Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 654, 427 A.2d 1346 (1980); Molic v. Zoning Board of Appeals, 18 Conn. App. 159, 164, 556 A.2d 1049 (1989).

Section 13.1.14 requires plots within a subdivision to be capable of accommodating a rectangle with a minimum side length of 150 feet. Rectangles, by definition, have four sides, all at right angles, and the commission correctly interpreted the regulation as requiring each side of the rectangle to have a minimum length of 150 feet. We find that the regulation as written was not ambiguous.

The commission argued before the trial court that the purpose of the regulation is to create building lots of a fairly uniform configuration. It further argued that notwithstanding the fact that lots, of such shape as those in the plaintiffs’ proposed subdivision, may accommodate buildings that meet all of the other regulations relating to area, frontage, setback, front and side yard requirements, et cetera, such lots cannot be approved unless they can accommodate the prescribed rectangle. While Table 4.1 of the Haddam zoning regulations provides that lots within an R-l zone must have 150 feet of frontage, the plaintiffs argue that there is no prescribed rear lot width and thus the regulations are ambiguous and should be construed against the drafters. The trial court accepted this reasoning, but we find no authority supporting the trial court’s conclusion that “[ajmbiguities in zoning regulations should be resolved in favor of the applicant.”

We find that the commission acted within its discretion in interpreting section 13.1.14 and applying its interpretation as a basis for denying the plaintiff’s application. The commission’s action was not unreasonable, arbitrary or illegal, but rather, was the result of honest judgment reasonably and fairly exercised. The trial court, therefore, should not have substituted its interpretation of the regulation for that of the commission. Horn v. Zoning Board of Appeals, 18 Conn. App. 674, 676-77, 559 A.2d 1174 (1989).

II

In its brief, the plaintiffs have raised an alternative ground to support the trial court’s decision and have filed a preliminary statement of issues stating that alternative ground. State v. Hodge, 201 Conn. 379, 383, 517 A.2d 621 (1986). The alternate ground claimed by the plaintiffs is that their application was for a resubdivision and that, since the board did not commence a public hearing within sixty-five days after receipt of the application, the trial court should have found that the application was approved by operation of law. We do not review this claim.

Although the plaintiffs’ complaint sets forth that no public hearings were heard on the application, it does not allege that the commission was acting on a resubdivision that would have, pursuant to General Statutes § 8-26, required a public hearing. The record does not reveal whether the resubdivision claim was argued before the trial court, but the commission represents that the claim was raised by the plaintiffs for the first time during closing argument.

Although the trial court’s memorandum of decision, filed August 4, 1989, concludes that the plaintiffs addressed only one issue in their brief and that all other issues were abandoned, the record indicates that on July 27, 1989, four days prior to the memorandum of decision, the plaintiffs filed with the trial court a supplemental memorandum of law addressing the issue of an automatic approval of the application. The trial court’s memorandum did not address the issue and the plaintiff made no motion to rectify the memorandum or to articulate that issue. “The burden of ensuring that a record is sufficient for review falls upon the party bringing the claim on appeal.” Niles v. Niles, 9 Conn. App. 240, 249, 518 A.2d 932 (1986). Therefore, we do not review this claim.

The judgment is reversed and the case is remanded to the trial court with direction to dismiss the plaintiffs’ appeal from the decision of the commission.

In this opinion the other judges concurred.

       Practice Book § 4013 (a) (1).

       Practice Book § 285A provides in relevant part that if “a party intends to raise any claim of law which may be the subject of an appeal, he must . . . state the same distinctly to the court before his argument is closed

       Practice Book § 4051.


author: Lavery, J.

text:
    People’s Bank v. Marjorie Perkins
    (8325)
    Borden, Foti and La very, Js.
    Argued February 27
    decision released July 3, 1990

      David M. Stanwicks, for the appellant (plaintiff).

      Marjorie Perkins, pro se, the appellee (defendant).
   Lavery, J.

The plaintiff bank appeals from the trial court’s order dissolving, on the satisfaction of a certain condition, the execution of a judgment on the defendant’s bank accounts. The plaintiff claims that the trial court should not have dissolved the execution of judgment without first finding that the funds in question were exempt from execution under General Statutes § 52-352b. We reverse the judgment of the trial court.

The following facts are pertinent to this appeal. The plaintiff, People’s Bank, filed an action in May, 1988, alleging that the defendant failed to make payments due pursuant to a “Visa” credit card agreement. On December 7, 1988, the trial court rendered a default judgment in favor of the plaintiff in the amount of $5187.46, and ordered the defendant to make weekly payments of $10. The defendant made only a few of the weekly payments. On April 19, 1989, the plaintiff applied for a bank execution pursuant to General Statutes § 52-367b (a). Five days later, the court issued the execution, which was served on the Gateway Bank in Newtown. The plaintiff then levied on the defendant’s two checking accounts and a savings account.

The defendant, citing various statutory bases, claimed an exemption from execution against the two checking accounts. The matter was heard on August 11, 1989. The plaintiff’s attorney explained her client’s position but offered no testimony or evidence, and the trial court did not ask whether the plaintiff was prepared to present any testimony or documentary evidence.

The defendant, acting pro se, did not take the stand, but told the court the reasons for the missed payments. The court asked the defendant what it would take to bring the payments up to date. The defendant stated that she had missed the payments from April through July. The court then ruled on the motion, ordering that “upon a payment of $500 lump sum within the next five days to be worked out, the motion to exempt is granted, otherwise it remains in full force and effect.” This appeal followed.

The plaintiff claims that the trial court should not have dissolved the execution of judgment on the defendant’s bank accounts without first determining whether the funds were exempt under General Statutes §§ 52-352b and 52-353. The defendant, pursuant to Practice Book § 4013, presented alternate grounds on which the trial court’s decision could be affirmed, namely, (1) that the trial court correctly granted the defendant’s motion to exempt because the plaintiff failed to refute the prima facie evidence of the defendant’s exemption claim, and (2) that the plaintiff failed to comply with General Statutes § 52-356 (d) in pursuit of the execution. We address the plaintiff’s claim first.

Section 52-367b governs the execution against debts due from banks. Once a judgment debtor claims an exemption from execution pursuant to § 52-367b (e), the court must schedule a short calendar hearing on the exemption claim. The exemption claim filed by the debtor is considered prima facie evidence that the claimed exemption exists. General Statutes § 52-367b (f). The court, after conducting this hearing, must decide whether the exemption claim is meritorious; General Statutes § 52-367b (i); and, if so, whether all or only part of the money deposited in the subject account is exempt. General Statutes § 52-367b (j).

In the present case, the court heard argument from the parties, but heard no sworn testimony and received no evidence. The court had before it a disputed issue of fact, namely, whether the defendant’s claimed exemption was valid. The determination of such a factual issue requires the taking of evidence; Land Enterprises v. Dorman, 17 Conn. App. 4, 11, 549 A.2d 672 (1988); not merely the presentation of legal argument by the parties or their counsel. Even if the plaintiff was unprepared to present evidence at the hearing, in which event the court would have had before it only the “prima facie” evidence of the defendant’s exemption claim, the court, before seeking to fashion relief, failed to make any determination of the principal factual issue, namely, the validity of the defendant’s exemption claims.

The court was required to enter an order determining the issues raised by the defendant’s exemption claim. General Statutes § 52-367b (i). It did not make any such determination. The very nature of the relief fashioned by the court indicates that it reached no concrete conclusion on whether the defendant’s bank accounts were exempt from execution. The court ordered the executions dissolved, provided that the defendant paid the plaintiff $500 within five days of the order. Had the court reached a conclusion on the exemption issue, such an order would have been logically impossible, because the court cannot permit execution against bank accounts or portions thereof that it has found to be exempt; General Statutes § 52-367b (a); and there is nothing in the statute allowing the court to condition the execution against nonexempt accounts upon the debtor’s failure to pay a court ordered sum by a certain date.

The defendant claims that the judgment should be upheld because the court had before it the prima facie evidence of the exemption claim, which, in the absence of rebuttal evidence offered by the plaintiff, was sufficient to sustain the trial court’s decision. This argument is unsatisfactory because it fails to address the other flaws in the proceeding: the court’s failure to take evidence from the plaintiff and its failure to decide the exemption claim.

The defendant’s remaining ground for affirming the trial court is without merit.

The judgment is reversed and the case is remanded for a new hearing on the defendant’s exemption claims.

In this opinion the other judges concurred.

       General Statutes § 52-352b lists the categories of property exempted from execution under § 52-353. The defendant claimed that a portion of the money in one of the accounts was exempt under § 52-352b (e) as health and disability insurance payments.

       The defendant claimed that one checking account was exempt in the amount of $764 under General Statutes § 52-361a; the other checking account was claimed to be exempt in the amount of $872.35 under General Statutes §§ 52-352b (e) and 52-361a.

       General Statutes § 52-367b provides in pertinent part: “(a) exempt debts. Execution may be granted pursuant to this section against any debts due from any banking institution to a judgment debtor who is a natural person, except to the extent such debts are protected from execution by sections 52-352a, 52-352b, 52-352c, of the general statutes revised to 1983, 52-354 of the general statutes revised to 1983, 52-361 of the general statutes revised to 1983 and section 52-361a, as well as any other laws or regulations of this state or of the United States which exempt such debts from execution.
      * ** *
      “(e) claim OP exemption. To prevent the banking institution from paying the serving officer, as provided in subsection (h) of this section, the judgment debtor shall give notice of a claim of exemption by delivering to the banking institution, by mail or other means, the exemption claim form or other written notice that an exemption is being claimed. The banking institution may designate an address to which the notice of a claim of exemption shall be delivered. Upon receipt oí such notice, the banking institution shall, within two business days, send a copy of such notice to the clerk of the court which issued the execution.
      “(f) HEARING. Upon receipt of an exemption claim form, the clerk of the court shall enter the appearance of the judgment debtor with the address set forth in the exemption claim form. The clerk shall forthwith send file-stamped copies of the form to the judgment creditor and judgment debtor with a notice stating that the disputed assets are being held for twenty days from the date the exemption claim form was received by the banking institution and the clerk shall automatically schedule the matter for a short calendar hearing. The claim of exemption filed by such debtor shall be prima facie evidence at such hearing of the existence of the exemption.
      * ** *
      “(i) court ORDER. The court, after a hearing conducted pursuant to subsection (f) of this section, shall enter an order determining the issues raised by the claim of exemption. Such order shall be deemed to be a final judgment for the purposes of appeal. No appeal shall be taken except within seven days of the rendering of the order. The order of the court may be implemented during such seven-day period, unless stayed by the court.
      “(j) determination OP exempt MONEYS. If both exempt and nonexempt moneys have been deposited into an account, for the purposes of determining which moneys are exempt under this section, the moneys most recently deposited as of the time the execution is levied shall be deemed to be the moneys remaining in the account.”


author: Borden, J.

text:
    State of Connecticut v. Harold Holloway
    (7798)
    Borden, O’Connell and Foti, Js.
    Argued April 11
    decision released May 18, 1990

      William F. Gallagher, special public defender, with whom, on the brief, was Robert P. Borquez, special public defender, for the appellant (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, and Dennis O’Connor, senior assistant state’s attorney, for the appellee (state).
   Borden, J.

The defendant appeals from the judgment of conviction, after a court trial, of the lesser included offense of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3). He claims that the trial court should not have (1) excluded the testimony of a forensic expert witness given in response to a hypothetical question, (2) admitted the testimony of the same witness in response to a question by the state on cross-examination, (3) denied his motion for articulation, and (4) found him guilty based on the evidence presented. We affirm the judgment of the trial court.

In its memorandum of decision, the court found the following facts. At approximately 2 a.m. on May 16, 1987, the defendant, Harold Holloway, and the victim, Shirley Holloway, were together in the vicinity of the Keney Grill in Hartford. They were arguing, and the defendant exerted some degree of physical force on the victim. The victim said “Stop, leave me alone,” and the defendant replied, “Shut up or I’ll kill you.” The court further found, on the basis of the testimony of Iris Santiago, a state’s witness, that between 3:30 and 4 a.m. Santiago heard and saw the defendant and the victim arguing in the vicinity of an after-hours bar on Main Street across the street from Santiago’s home. The defendant was holding the victim in a headlock as he punched her in the face. Shortly thereafter, the victim screamed, “No, Harold, please Harold, no, Harold.” The court also found that later Santiago, having heard a loud scream, looked out of her window and saw the defendant carrying the victim’s limp body into an alley between a market and a laundromat. At approximately 6:30 a.m., the victim’s body was found in a vacant lot at the end of that alley. The court concluded that the defendant had committed manslaughter.

Although not referred to in the court’s decision, there was the following uncontroverted evidence. When the victim was found, she was lying on her back, naked from the waist down with her shirt and bra pulled up exposing her breasts. Her eyes were swollen, and her lips and neck were bruised. There was dried semen on her abdomen and pubic area, and blood stains on the left front part of her chest, at the junction of her right hip and abdomen, on the back of her left hand and on the inside of her left thigh. The semen and blood contained type A blood substances. There was also undisputed evidence that both the victim and the defendant had blood type O.

Wayne Carver, the state medical examiner, testified that the victim died on May 16 between 1 and 5 a.m. He also testified that the cause of death was manual strangulation, and that the blood stains had been deposited on the victim’s body “about the time [when] she stopped moving, and certainly not more than a couple hours of active lifetime before she died.”

I

The defendant first claims that the court should not have sustained the state’s objection to a hypothetical question asked of an expert defense witness. This claim arises out of the following context.

Medical records were introduced establishing that the defendant had blood type O. Beryl Novitch, a criminalist with the state forensic laboratory, testified for the defendant. She testified that she examined the semen and blood samples taken from the victim’s body, that the victim had blood type 0, and that both the semen and blood samples contained type A blood substances. She also testified that blood and semen samples came from a secreter, that is, one of the 80 percent of the population that secretes blood group substances into other body fluids, such as semen. Novitch, having been asked to assume that the semen stain came from one person, testified that it was consistent with having been deposited by a person with type A blood. She also testified that the victim was a secreter.

The defendant then asked Novitch the following hypothetical question: “Assuming that the blood type of the victim is an 0 and assuming that there is only one person involved in an incident with the victim, do you have an opinion with reasonable medical certainty of the blood type of the person that left the stain on the victim’s body and semenal fluid on the victim’s body?” (Emphasis added.) The court sustained the state’s objection, presumably on the ground that the question assumed facts not in evidence, namely, that only one person was involved in the incident causing the victim’s death. The defendant excepted to the ruling.

The defendant argues that there was sufficient evidence to support the hypothesis stated in the question that only one person was involved in causing the victim’s death, and that, therefore, the court should not have sustained the objection. We agree, but we conclude that the ruling was harmless.

Whether a hypothetical question is admissible is within the sound discretion of the court. State v. Hardwick, 1 Conn. App. 609, 617, 475 A.2d 315, cert. denied, 193 Conn. 804, 476 A.2d 145 (1984). It may be admissible within that discretion, even if it does not contain all the facts in evidence, as long as it presents those facts truly and fairly to each other and to the rest of the evidence, it is not worded so as to mislead or confuse the factfinder, and it is not as lacking in facts as to be without value to the decision in the case. Id; see also State v. D’Ambrosio, 14 Conn. App. 309, 319-20, 541 A.2d 880 (1988), rev’d in part on other grounds, 212 Conn. 50, 561 A.2d 422 (1989). The court’s ruling will not be disturbed unless its discretion has been abused, or the error is clear and stems from a misconception of the law. State v. Palmer, 196 Conn. 157, 166, 491 A.2d 1075 (1985). Under the circumstances of this case, we conclude that the court abused its discretion in excluding the question.

Although there was no evidence that directly precluded the participation of more than one person in the victim’s death, there was sufficient evidence to permit the inference that only one person was involved. Santiago testified that between 3:30 and 4 a.m. she saw and heard the defendant and the victim arguing, that the defendant had the victim in a headlock and was punching her in the face with his fist, and that she heard the victim scream the defendant’s name. Santiago also testified that later she heard a loud scream and saw the defendant carrying the victim’s limp body into the alley. Carver’s testimony put the time of death at no later than 5 a.m. There also was evidence that between 1:30 and 2 a.m., the defendant and the victim left the Keney Grill, at which time the defendant had physically abused her and had threatened to kill her. Aside from the forensic evidence yielded by the semen and blood stains, there was no evidence of any other person’s involvement in the victim’s death. Furthermore, the defendant’s theory of defense was that someone else hit the victim and carried her limp body into the alley. He testified that he was not in the vicinity of the Keney Grill that evening, and that he was at home at the time of the victim’s death.

Under these circumstances, the court should have permitted Novitch to respond to the question. The question presented facts and evidence in accurate relation to each other and to the rest of the evidence, it was not worded in a misleading or confusing manner, and the assumption that only one person was involved in the victim’s death was sufficiently rooted in the evidence to afford some value to the court as factfinder. See State v. Hardwick, supra, 617.

The state argues that the court’s ruling was correct because Novitch’s testimony itself, by tending to indicate the involvement of someone in addition to the defendant, belied the assumption that there was only one criminal actor, as was stated in the question. The state incorrectly limits the reasonable inferences that can be drawn from Novitch’s testimony. We view her testimony as indicating at least three permissible scenarios accounting for the presence of the semen and blood on the victim’s body. First, there was someone else, in addition to the defendant, involved in the victim’s death; second, as the defendant argues, someone else other than the defendant was responsible for the victim’s death, and the identification of the defendant by Santiago and the other witnesses must have been flawed; and, third, someone other than the defendant deposited the semen and blood on the victim’s body after it was left in or near the alley. Under the facts of this case, the defendant was entitled to have Novitch give her opinion based on the defendant’s theory of the case.

We conclude, however, that this ruling was harmless because we are unpersuaded that the exclusion of this evidence probably affected the decision. State v. Moody, 214 Conn. 616, 629, 573 A.2d 716 (1990); State v. Horton, 8 Conn. App. 376, 381-82, 513 A.2d 168, cert. denied, 201 Conn. 813, 517 A.2d 631 (1986). Prior to the excluded question, Novitch, who had been asked to assume that the semen came from one person, had already testified that that person had type A blood. Furthermore, after the question was excluded, Novitch testified without objection that “[i]f this [blood] was just deposited by one person . . . it could not be deposited by an ... 0 person. On the seminal stain, if it was a seminal stain deposited by one person . . . it would not be deposited by ... an O secreter or a non-secreter.” Thus, the substance of the testimony sought by the excluded hypothetical question was received into evidence.

II

The defendant next claims that the court should not have overruled his objection to a question asked by the state on its cross-examination of Novitch. We disagree.

The state asked Novitch the following question: “[T]he results that you received from your testing on the seminal stains does not exclude . . . combined donations by an A secreter and an O secreter, does it?” The defendant objected on the bases that there was no evidence that more than one person was involved, and that the question called for speculation. The court overruled the objection, and the defendant excepted.

This question was proper cross-examination of Novitch because she had testified on direct examination that if one person had deposited the seminal fluid, he could not be an O secreter. Thus, the question was a proper method of challenging one of the permissible inferences from her direct examination, namely, that some person other than the defendant killed the victim. Furthermore, Novitch’s testimony on direct examination, taken together with the eyewitness testimony implicating the defendant, could have also permitted the inference that more than one person was responsible for the victim’s death. Thus, this question was not based on speculation, but was based on evidence in the case.

Ill

The defendant next claims that the court should have granted his motion for articulation regarding the effect of certain evidence on the court’s factfinding process. We first consider a procedural question that has not been authoritatively determined by either this court or the Supreme Court: May an appellant, after the denial by the trial court of his motion for articulation pursuant to Practice Book § 4051, and after review of that denial by this court pursuant to Practice Book § 4054, present the same issue to this court on the merits of the appeal as a claimed ground for reversing the trial court? We conclude that the ruling of the trial court on a defendant’s motion for articulation pursuant to Practice Book § 4051 does not ordinarily provide the basis of a claim on appeal. Moreover, we conclude that, in this case, the trial court acted properly in denying the motion for articulation.

After the court rendered judgment, and while the case was on appeal, the defendant moved for an articulation of the following matters: (1) Did the panel find credible the forensic evidence regarding the victim’s and the defendant’s blood types, and the source of the semen and blood found on the victim’s body? (2) If so, was there any relationship between that evidence and the defendant’s guilt? and (3) If there was no such relationship, on what did the court base its conclusion?

After the trial court denied the motion, the defendant moved, pursuant to Practice Book § 4054, for review of the trial court’s denial. This court granted the motion for review but denied the relief requested.

Practice Book § 4051 provides for a motion for “articulation or further articulation of the decision of the trial court . . . .’’The purpose of such a motion is to clarify an ambiguity or incompleteness in the decision of the trial court. State v. Wilson, 199 Conn. 417, 434, 513 A.2d 620 (1986). It is appropriate, for example, where the factual or legal basis of the trial court’s decision is unclear or has been omitted entirely, where the reviewing court cannot discern whether the decision was based on a factual finding or on a particular construction of a statute, where the meaning of an ambiguous phrase used by the trial court is unclear, where it is unclear whether the trial court considered the applicable statutory criteria, and where the appellant claims that the facts found were not supported by the evidence. Id., 434-35.

“The circumstances are indeed diverse where an articulation may be necessary or useful for meaningful appellate review. Broad diversity, however, does not imply an abrogation of standards. An articulation is appropriate where the trial court’s decision contains some ambiguity or deficiency reasonably susceptible of clarification.” Id., 435. A trial court’s later articulation cannot, however, be used to contradict its earlier factual findings. Id., 436.

Appellate consideration of the action of the trial court pursuant to such a motion is provided by a motion for review pursuant to Practice Book § 4054. “The action of the trial judge as regards such a correction or addition may be reviewed by the supreme court [or the appellate court; see Practice Book § 2000] under Sec. 4054.” Practice Book § 4051. “Any party aggrieved by the action of the trial judge as regards rectification of the appeal or articulation under Sec. 4051 may make a written motion for review to the supreme court, to be filed with the chief clerk of the supreme court, and the supreme court may, upon such a motion, direct any action it deems proper.” Practice Book § 4054.

In Harris Calorific Sales Co. v. Manifold Systems, Inc., 18 Conn. App. 559, 568, 559 A.2d 241 (1989), which presented a closely analogous situation, we declined to consider a claim that the trial court should not have denied the defendant’s motion for a special finding under General Statutes § 52-226. The basis for that decision was that the defendant’s argument had “already received adequate review” by way of its motion for review in this court. Id. In contrast, our Supreme Court in State v. Wilson, supra, 438, did consider the defendant’s claim because the court had earlier denied its motion for review “without prejudice, subject to its renewal on appeal.”

Although the language of Practice Book § 4054 is not as definitive as that of § 4049 (“[t]he sole remedy of any party desiring the supreme court to review an order concerning a stay of execution shall be by motion for review under Sec. 4053”), we believe that the same policy applies to Practice Book § 4054. To hold otherwise would mean that a defendant, having unsuccessfully sought review by this court of a trial court’s ruling on a motion for articulation, could thereafter present the same issue to this court on the merits of the appeal. We would then be providing two appellate reviews of the same issue. We are unaware of any other provision of our rules for such double review, and we see no reason to construe the rules to provide for such review of the issue of the clarity or completeness of the trial court’s decision, an issue that is ordinarily subsidiary to the substance of that decision.

This does not mean, however, that a decision regarding review under Practice Book § 4054 is irrevocable. We are, of course, free to make that decision without prejudice to its renewal on the merits of the appeal. See State v. Wilson, supra. We are also free to reexamine that decision sua sponte when plenary review of the case on the merits of the appeal discloses that our earlier decision was ill considered, and that further articulation is necessary for the just determination of the appeal. Cf. Rostain v. Rostain, 213 Conn. 686, 694-95, 569 A.2d 1126 (1990) (sua sponte remand for articulation).

We conclude that no such necessity exists here. The trial court clearly stated the essential facts that it found and the application of the law to those facts. Furthermore, although the circumstances are diverse where further articulation may be necessary for appellate review; State v. Wilson, supra, 435; even those circumstances have limits. In this case, the trial court not only fully stated its factual findings, but also referred to the evidence it found credible to support those findings. The just resolution of this appeal did not require it to go further by delineating the effect of the defendant’s arguably exculpatory forensic evidence on its decision.

IV

The defendant’s final claim is that the court should not have found him guilty because that finding was clearly contrary to all the evidence. The defendant does not argue that the facts that the trial court did find were not supported by sufficient evidence to sustain those facts. Rather, the defendant argues that (1) if the court disbelieved Novitch’s testimony, that disbelief was unwarranted because there was no contrary evidence, and (2) if the court believed Novitch’s testimony, it must have speculated regarding what happened to the victim’s body after the victim died, and that speculation was inconsistent with Carver’s testimony that the blood stains were deposited on the victim at the time of or two hours before her death. We are unpersuaded.

Carver’s opinion that the blood on the victim’s wrist was deposited at the time of her death was based on his observation of the blood on her body when he first saw it and on his “knowledge of what blood is like when people are walking around doing things.” The court was not compelled to accept this opinion, even though the state did not attempt to rebut it. If it was not accepted, the inference was permissible that the blood and semen were deposited on the victim’s body by someone else, at the time the defendant left her body in or near the alley, or some time thereafter, before her body was discovered.

We turn, then, to the defendant’s argument that the court was bound to accept Novitch’s testimony because it was uncontradicted, and because the state did not attempt to impeach her qualifications as an expert. Implicit in this argument, however, is the related notion that the trial court was required to accept Carver’s testimony that the blood was deposited on the victim’s body at the time of her death or within two hours prior thereto, because the defendant’s argument, namely, that the difference in blood types must have rationally excluded the defendant as the killer, necessarily depends on the related idea that whoever strangled the victim deposited the blood and semen on her body at or near the time of her death.

The defendant relies on Builders Service Corporation v. Planning & Zoning Commission, 208 Conn. 267, 294, 545 A.2d 530 (1988), where our Supreme Court, in a 3-2 decision, held that the trial court was required to accept an expert’s testimony in the absence of contradictory evidence or impeachment of his testimony on cross-examination. The court stated that “[a] trial court cannot . . . arbitrarily disregard, disbelieve or reject an expert’s testimony in the first instance. Rock Creek Plaza - Woodner Ltd. v. District of Columbia, 466 A.2d 857, 859 (D.C. App. 1983). There are times, as the First Circuit Court of Appeals said in Santana v. United States, 572 A.2d 331, 335 (1st Cir. 1977), that ‘the trial judge, despite his superior vantage point, has erred in his assessment of the testimony.’ We, as did the court in Santana, ‘think this is one of those rare cases.’ Id. Where the trial court rejects the testimony of a plaintiff’s expert, ‘there must be some basis in the record to support the conclusion “that the evidence of the [expert witness] is unworthy of belief.’ ” Rock Creek Plaza - Woodner Ltd. v. District of Columbia, supra; Cullers v. Commissioner, 237 F.2d 611, 616 (8th Cir. 1956).” Builders Service Corporation v. Planning & Zoning Commission, supra. We do not believe that Builders Service applies here.

First, Builders Service simply cannot be read to have implicitly overruled the well settled principle that a fact-finder “is under no obligation to credit the evidence proffered by any witnesses, including experts; Johnson v. Healy, 183 Conn. 514, 516-17, 440 A.2d 765 (1981); Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981); even if that evidence is uncontroverted. Pisel v. Stamford Hospital, [180 Conn. 314, 344, 430 A.2d 1 (1980)]. ‘[T]he acceptance or rejection of an opinion of a qualified expert is a matter for the trier of fact unless the opinion is so unreasonable as to be unacceptable to a rational mind.’ National Folding Box Co. v. New Haven, 46 Conn. 578, 586, 153 A.2d 420 (1959).” Mather v. Griffin Hospital, 207 Conn. 125, 145, 540 A.2d 666 (1988); see also State v. Avcollie, 178 Conn. 450, 461, 423 A.2d 118 (1979), cert. denied, 444 U.S. 1015, 100 S. Ct. 667, 62 L. Ed. 2d 645 (1980), aff’d, 188 Conn. 626, 453 A.2d 418 (1982), cert. denied, 461 U.S. 928, 103 S. Ct. 2088, 77 L. Ed. 2d 299 (1983); Pischitto v. Waldron, 147 Conn. 171, 177, 158 A.2d 168 (1960); State v. Kelly, 77 Conn. 266, 275, 58 A. 705 (1904); Bricklin v. Stengol Corporation, 1 Conn. App. 656, 665, 476 A.2d 584, cert. denied, 194 Conn. 803, 482 A.2d 709 (1984). The majority in Builders Service Corporation did not explain why that was one of those rare cases where the trial court was incorrect in its assessment of the expert testimony, other than to say that the court did not specifically refer in its memorandum of decision to the expert’s testimony. Until the contours and limits of Builders Service Corporation are more clearly defined, we hesitate to apply it beyond its facts.

Second, Builders Service Corporation is factually distinguishable. Unlike that case, here,the state’s cross-examination of Novitch elicited testimony that her finding did not exclude combined semen donations by an A secreter and nonsecreter, or by an A secreter, an O secreter and a nonsecreter. Thus, the inference from Novitch’s testimony, upon which the defendant relied, namely, that someone else had killed the victim, was undermined on cross-examination. This cross-examination permitted the inference that someone in addition to the defendant was responsible for her death. Furthermore, although the court in its memorandum of decision did not specifically refer to the testimony of Novitch and Carver regarding the semen and blood stains, it did at the time of sentencing make clear that it had considered that testimony.

After the defendant, in his statements to the court at sentencing, denied ever having met the victim, and referred to the “semen and everything found at the scene,” the court stated: “Alright, Mr. Holloway, as far as the remarks made by yourself and your attorney are concerned, the panel heard all of the evidence, we heard whatever might be considered to be contradictory evidence presented by the various witnesses. But the state must prove a case beyond a reasonable doubt. We found that the state did prove this case beyond a reasonable doubt. Although there may have been some minor inconsistencies, they were not of a nature that would change the verdict of this court—of this panel. We took everything into consideration, discussed it very thoroughly. When we entered our finding of guilty of manslaughter in the first degree, we were of the opinion that the actual death occurred at the time that you had this young lady by the—around the neck with your arm. We made that finding that it was at that particular moment this young lady was killed. We cannot speculate nor will we speculate as to what happened to that body after it was placed behind the dump truck. Something else may have happened, we don’t know and we’re not going to speculate about it and we don’t speculate about it.” (Emphasis added.)

Third, the testimony of Novitch was subject to at least three possible inferences, one inconsistent and two consistent with the defendant’s guilt. Faced with this choice, and faced with more than ample other evidence of the defendant’s guilt, the trial court was not required to draw that inference inconsistent with guilt. State v. Dumlao, 3 Conn. App. 607, 616-17, 491 A.2d 404 (1985). Put another way, the court was not required to infer that the blood and semen were deposited on the victim’s body by her killer at the time of her death. The state was required only to demonstrate the defendant’s guilt beyond a reasonable doubt; it was not required to disprove any contact between the victim and a third person.

This reasoning also largely disposes of the second part of the defendant’s argument, namely, that if the court believed Novitch’s testimony, it must have speculated on what had happened to the victim’s body after she died. The court, in its sentencing remarks, specifically disclaimed any such speculation. Furthermore, as we have indicated, the court was not required to accept Carver’s opinion that the blood was deposited on the victim’s body at the time of or shortly before her death.

In sum, to accept the defendant’s argument that the decision was contrary to the evidence would require that we sit as a fourth panel member whose vote exceeds that of the three judges who heard the case. That we cannot do. State v. Osman, 21 Conn. App. 299, 303, 573 A.2d 743 (1990).

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was charged with the crime of murder and elected to be tried by a three judge panel. See General Statutes § 54-82 (b).

       General Statutes § 53a-55 provides in pertinent part: “(a) A person is guilty of manslaughter in the first degree when ... (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.”

       The victim and the defendant were not related.

       A criminalist is one who scientifically examines evidence brought to the laboratory by police and other agencies for use in court.

       In sustaining the objection, the court stated: “You can’t assume the nature of your question. That . . . creates a problem.” Although the basis of the court’s ruling is not quite clear from this record, the parties on appeal have treated it as stated in the text. We, therefore, do so as well.

       Practice Book § 4051 provides: “A motion for rectification or articulation shall be filed in triplicate with the chief clerk of the supreme court and forwarded by such clerk to the trial judge. The trial judge shall file the ruling on the motion with the chief clerk of the supreme court.
      “Any motion seeking corrections in the transcript or the trial court record which depend on proof of matters not of record or seeking an articulation or further articulation of the decision of the trial court shall be determined by the judge of the trial court whence the appeal is taken or the reservation is made. The trial court may make such corrections or additions as are necessary for the proper presentation of the preliminary statement of issues or for the proper presentation of questions reserved; or the trial court may approve a stipulation of counsel that such a correction or addition be made, provided the motion or stipulation is presented before the appeal is ready to be assigned for hearing and only by leave of the supreme court thereafter. The action of the trial judge as regards such a correction or addition may be reviewed by the supreme court under Sec. 4054. Nothing herein is intended to affect the existing practice with respect to opening and correcting judgments and the records on which they are based.
      “Corrections made before the record is printed shall be included in it. If the record has been printed, the chief justice may direct the chief clerk of the supreme court to prepare a supplemental printed record, to be printed and distributed in the same way as the original printed record, but in the absence of such a direction the chief clerk of the supreme court shall furnish the justices of the supreme court typewritten copies.”

       Practice Book § 4054 provides: “Any party aggrieved by the action of the trial judge as regards rectification of the appeal or articulation under Sec. 4051 may make a written motion for review to the supreme court, to be filed with the chief clerk of the supreme court, and the supreme court may, upon such a motion, direct any action it deems proper. If the motion depends upon a transcript of evidence or proceedings taken by a court reporter, the procedure set forth in Sec. 4053 shall be followed. Corrections which the supreme court makes or orders made pursuant hereto shall be included in the printed record or a supplemental record in the same way in which, under Sec. 4051, corrections made by the trial judge are included.”

       We note that this is not a case where the factfinder has apparently rejected undisputed, generally accepted scientific evidence, as opposed to expert opinion that does not rise to that level, that would, if believed, necessarily preclude a finding of guilt. Recent cases of that nature, involving the weight to be accorded blood grouping tests in paternity cases, have yielded a range of appellate response. See, e.g., annot., 43 A.L.R. 4th 579, §§ 8 through 16, and (Sup. 1989) 579, §§ 3 through 16.