author: Dupont, C. J.

text:
    Ricky S. Smith v. Carl Robinson, Warden
    (4149)
    Dupont, C. J., Hull and Spallone, Js.
    Argued June 3
    decision released August 12, 1986

      James L. Radda, for the appellant (petitioner).

      Steven M. Sellers, deputy assistant state’s attorney, with whom, on the brief, was John J. Kelly, chief state’s attorney, for the appellee (respondent).
   Dupont, C. J.

The petitioner appeals from a judgment dismissing his petition for a writ of habeas corpus. The sole relief sought in the petition was the reinstatement of an appeal which he had withdrawn in connection with a plea bargain agreement. The issue to be resolved is whether the trial court hearing the habeas corpus petition erred in concluding that the withdrawal of the appeal was done knowingly, intelligently and voluntarily.

The petitioner was sentenced, after his conviction, by a jury, of robbery in the third degree, to a term of imprisonment of five years. Two weeks later, he entered guilty pleas in three other files to various other offenses as part of a plea bargain agreement. That agreement provided that he would receive a ten year sentence for these offenses, to run consecutively to the five year sentence previously received, that the state would withdraw two persistent felony offender charges against him, that any sentence imposed for two criminal charges pending in another judicial district would be concurrent to the total effective sentence of fifteen years, and that he would withdraw his pending appeal from the judgment of conviction of robbery in the third degree. The same trial court which presided at the jury trial presided at the canvass of the petitioner’s pleas which were entered pursuant to the plea bargain. The petitioner withdrew the appeal, in writing, on the same date that he entered the guilty pleas.

If the petitioner validly waived his right to appeal in exchange for the state’s agreed upon recommendation, his appeal should not be reinstated. If, however, the petitioner did not waive his right to appeal because his relinquishment of that right was not knowing, intelligent and voluntary, his appeal should be reinstated. See Paulsen v. Manson, 193 Conn. 333, 338, 476 A.2d 1057 (1984).

The leading case of Staton v. Warden, 175 Conn. 328, 398 A.2d 1176 (1978), furnishes the basis for our analysis of the issue in this case. Staton establishes two basic principles. One is that Connecticut stands with “[t]he numerical majority of courts which have considered the question [whether a criminal defendant may waive the right to appeal in exchange for a favorable sentence or sentences and which] hold that, if knowing and voluntary, a waiver of appeal by the defendant in a criminal case is valid . . . .” Cubbage v. State, 304 Md. 237, 240, 498 A.2d 632 (1985); see also 86 A.L.R.3d 1257. The second is that “the right of appeal should not be considered as having been waived or abandoned except where it is clearly established that such is the case.” Staton v. Warden, supra, 334-35. A third principle is that whether the evidence is sufficient to support a finding that the habeas petitioner deliberately bypassed his right of direct appeal because he intelligently, understandingly and voluntarily waived this statutory right of appeal depends upon the circumstances of each case. Paulsen v. Manson, supra, 338.

Some of the facts of Staton are similar to those of this case. Other facts are dissimilar. The question becomes, then, whether the dissimilar facts require a different conclusion than that reached in Staton. In that case, the petitioner was allowed to reinstate his appeal because his waiver of his right to appeal in conjunction with a plea bargaining agreement was found not to have been made with a full understanding of its consequences.

The facts in Staton were that immediately after the petitioner was sentenced, pursuant to a conviction by a jury, he ran from the courtroom and had to be subdued by several policemen. He was then charged with attempted escape from custody and interfering with a police officer. The plea agreement was that the petitioner would plead guilty to these additional charges and receive a sentence of one to six years on each count, to be served concurrently with the sentence for the charge of which the jury convicted him, in exchange for the withdrawal of his appeal in the primary case. He received the agreed upon sentences and at a later date formally withdrew his appeal. During the sentencing pursuant to the plea arrangement, the petitioner’s attorney stated that the appeal had been filed to preserve the petitioner’s rights since he continued to protest his innocence, but that, in the attorney’s opinion, there was no legal basis for the success of the appeal. The attorney further indicated that in all probability he would have sought to withdraw as a public defender for the purpose of the appeal. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493, reh. denied, 388 U.S. 924, 87 S. Ct. 2094, 18 L. Ed. 2d 1377 (1967). The petitioner expressed his understanding of, and agreement with, the statements of his counsel. He indicated that he was satisfied with the withdrawal of his appeal. Nothing else was said regarding his appeal rights.

The petitioner in Staton claimed, on appeal, that his decision was made because he feared he would have received a greater penalty for the additional charges if he had pursued his appeal. The trial court which canvassed the guilty pleas was not the trial court which had presided at the jury trial leading to the petitioner’s conviction. The canvassing court was not apprised of the issues of the trial, the evidence presented or the scope of the defense. It did not attempt to explore or resolve the conflict between the waiver of appeal and the petitioner’s claim of innocence. In order to determine how to resolve that conflict, the Supreme Court stated that the trial court would appear to need an Anders type of report. Staton v. Warden, supra, 335-36. Furthermore, the petitioner was not advised that if the public defender withdrew from participation in the appeal, it did not necessarily follow that the petitioner would have to obtain private counsel in order to pursue his appeal. Id., 336 n.5.

One salient difference between the facts of Staton and the facts of this case is that in this case the trial court which presided at the jury trial also presided at the canvass of the guilty pleas entered pursuant to the plea bargain agreement. Thus, the court in this case had no need of an Anders type report. The need, however, effectively to question the accused himself about the dichotomy between his appeal waiver and his claim of innocence remained. Staton v. Warden, supra, 336.

Another factual difference is that, in Staton, the petitioner filed the withdrawal of his appeal at a subsequent time, whereas, in this case, the petitioner filed his withdrawal, in writing, contemporaneously, or nearly so, with the acceptance of his guilty pleas.

A review of the record of the plea canvass relating to the waiver of the petitioner’s appeal shows that the petitioner’s counsel said that the petitioner indicated to him that the petitioner understood that he did not have a substantial basis for his appeal, that the petitioner said he had signed a withdrawal of his appeal, that the petitioner said that as part of his plea bargain he was withdrawing his appeal, and that the petitioner stated that he withdrew the appeal of his own free will. No other questions or statements were made with reference to the waiver of his appeal. At the habeas corpus hearing, the petitioner testified that he withdrew the appeal in order to receive a lesser sentence, and that was why he had signed the withdrawal. He also testified that his lawyers told him that he did not have a basis for an appeal. He did not testify, however, as did the petitioner in Staton, that he agreed with that conclusion. He stated that “[t]he plea is good, you know, but the waiver, I didn’t understand that, you know.”

A recent case, State v. Badgett, 200 Conn. 412, 512 A.2d 160 (1986), is of help in the analysis of this case, insofar as that case also concerns the necessary ingredients of a knowing, voluntary and intelligent waiver of a right. In that case, the court, in accepting a guilty plea, asked the accused if he understood that he was giving up his right to a trial, instead of a jury trial. The question was held to be constitutionally sufficient because of the assumption that at the time of his initial plea of not guilty he was advised of his right to a trial by jury because he did, in fact, elect a jury trial. Id., 419. In this case, we can similarly assume that, immediately after the imposition of a sentence for the robbery conviction, the petitioner was advised, pursuant to Practice Book § 945, that he had a right to apply for a waiver of fees, costs and expenses and for the appointment of counsel to prosecute the appeal, because the petitioner did, in fact, appeal and did obtain such a waiver of fees, costs and expenses, and appointment of counsel. The knowledge that a right to appeal exists, however, is not the same as knowledge of the consequences of a decision to withdraw an appeal. See Staton v. Warden, supra, 336.

The petitioner knew that he had a right to appeal, and a right to counsel, and a waiver of fees and costs. The question, however, is whether he knowingly and intelligently abandoned his right of appeal. See Brown v. Haynes, 385 F. Sup. 285 (W.D. Mo. 1974); D’Amico v. Manson, 193 Conn. 144, 476 A.2d 543 (1984). The answer to that question, of necessity, involves whether the petitioner had a knowledge and understanding of the possible consequences of an appeal.

An appeal might result in a judgment that there was no error in the trial, or in a judgment of not guilty. An appeal might also result in a new trial, with all of its concomitant rights, such as a right to a trial by jury, the right to confront the witnesses against the accused, and the right to be free from self-incrimination. A new trial might result in a lesser or in the same sentence, but cannot result in a harsher sentence unless a harsher sentence is warranted because of the conduct of the defendant after the original sentence. State v. Corchado, 200 Conn. 453, 457, 512 A.2d 183 (1986). If a new trial is ordered, an appeal may be taken from it.

In this case, the petitioner had already received the maximum sentence for robbery in the third degree and, therefore, in the event of a new trial, he could never receive a harsher sentence. An accused’s primary consideration in a plea bargain agreement is the amount of time he may be incarcerated. State v. Schaeffer, 5 Conn. App. 378, 390, 498 A.2d 134 (1985). The possibility of a greater or lesser or synonymous sentence, or no sentence at all, if an appeal is taken, must be explained to an accused. Otherwise, he cannot knowingly and intelligently decide whether, in connection with a plea agreement, he should waive his right to appeal.

A canvass of guilty pleas given in exchange for the relinquishment of the right to appeal a judgment of conviction must include certain basic questions. According to the tutelage of Staton v. Warden, supra, a defendant must know that he will be represented by counsel in that appeal, even if he is indigent, and must be told about the consequences of success or failure of the appeal.

In this case, the petitioner knew that he had the right to appeal, that he could obtain counsel to represent him in the appeal, and that fees and costs would be waived. He had also been advised by two lawyers that in their opinion, he had no legal basis for an appeal. No questions were asked of him, however, relating to the conflict between his claim of innocence and the waiver of the appeal, as mandated by Staton v. Warden, supra, 335-36, nor were the possible consequences of the waiver of appeal explained to him. On the basis of all of the facts of this case, on our review of the plea canvass conducted by the sentencing court, and on our review of the testimony at the hearing on the petition for habeas corpus, we conclude that the petitioner’s withdrawal of his appeal was not knowing and intelligent.

There is error, the judgment is set aside and the case is remanded with direction to grant the petition and to reinstate the appeal.

In this opinion the other judges concurred.

       The sentencing court, Rottman, J., conducted the plea canvass. Our review of the trial court’s action in the habeas corpus proceeding includes both a review of the plea canvass and the hearing on the habeas corpus petition itself. See State v. Badgett, 200 Conn. 412, 414 n.2, 512 A.2d 160 (1986).

       It is unnecessary to decide the efficacy of a plea bargain which incorporates or depends upon a proposed sentence to be imposed by another sentencing court pursuant to future guilty pleas.

       The parties do not raise, and we, therefore, do not decide, whether, if one portion of the plea bargain agreement, the waiver of the right to appeal the petitioner’s conviction, is negated, the entire plea bargain becomes nugatory. See Cubbage v. State, 304 Md. 237, 498 A.2d 632 (1985); State v. Gibson, 68 N.J. 499, 348 A.2d 769 (1975); Blackburn v. State, 290 S.E.2d 22 (W.Va. 1982).

       In those jurisdictions which allow a defendant to waive his right to appeal in connection with a plea bargain agreement, the validity of the waiver must be tested by determining whether there was judicial inquiry into the full implications of the waiver, including its consequences. People v. Jasper, 107 Misc. 2d 992, 436 N.Y.S.2d 185 (1981); see Gwin v. State, 456 So. 2d 845 (Ala. 1984); People v. Bailey, 1 Cal. 3d 180, 460 P.2d 974, 81 Cal. Rptr. 774 (1969); Judy v. Indiana, 275 Ind. 145, 416 N.E.2d 95 (1981).

       The court in Staton v. Warden, 175 Conn. 328, 398 A.2d 1176 (1978), treats a waiver of appeal as inconsistent with a claim of innocence. In another context, however, a claim of innocence, does not prevent a trial court from accepting a knowing and voluntary guilty plea from an accused who wants a sentencing consideration. North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       The petitioner also stated that he wanted to appeal because he was tried under his brother’s name, and that he looked like his brother so that the witnesses who identified him at trial could have been confused. The petitioner further claimed that the warrants for his arrest were in the name of Richard S. Smith. The appeal was filed in the name of Richard S. Smith. The petitioner testified that his brother’s name is Richard S. Smith.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    State of Connecticut v. Nelson L. Millett
    (4136)
    Borden, Daly and Bieluch, Js.
    Argued June 10
    decision released August 12, 1986

      Edward J. Gallagher, with whom, on the brief, was Stephen C. Gallagher, for the appellant (defendant).

      Kevin J. Gumpper, special assistant state’s attorney, with whom, on the brief, were Walter D. Flanagan, state’s attorney, and James G. Clark, deputy assistant state’s attorney, for the appellee (state).
   Per Curiam.

The defendant appeals from the judgment of conviction, after a jury trial, on three counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2). He claims that the trial court erred (1) in denying his motion to suppress certain evidence seized as a result of a warrantless arrest which he claims was made without probable cause, and (2) in denying his motion to supress certain eyewitness identification testimony. We find no error.

The defendant’s conviction stemmed from his participation with another man in the robbery of three persons in a market in Danbury at approximately 6 p.m. on February 17, 1984. His initial warrantless arrest, however, which took place at approximately 9 p.m. on the same evening, was for stealing a car which had been reported stolen earlier that day. While he was in custody following his arrest, he was searched and certain evidence was seized from him which linked him to the robberies in the market. Also, his photograph was taken and was used in identifying him as one of the robbers at the market.

The defendant’s first claim is that his initial warrant-less arrest for stealing a car was without probable cause and that, therefore, all the evidence seized from him and flowing from that arrest, including the use of his photograph, should have been suppressed. We have fully reviewed his arguments on appeal, the state’s response, and the transcript of the hearing on the motion to suppress. We are persuaded that the police officer had reasonable and articulable suspicion to make an investigatory stop of the defendant. See State v. Aversa, 197 Conn. 685, 690, 501 A.2d 370 (1985). We are also persuaded that the results of that stop, the pat-down which followed, and the defendant’s evasive and false replies to the officer’s questions ripened the officer’s suspicion into probable cause. See State v. Martin, 2 Conn. App. 605, 612B-13, 482 A.2d 70 (1984), cert. denied, 195 Conn. 802, 488 A.2d 457, cert. denied, 472 U.S. 1009, 105 S. Ct. 2706, 86 L. Ed. 2d 721 (1985). When the officer handcuffed the defendant and placed him in the back seat of the patrol car for transport to the police department, which the state concedes was an arrest; State v. Magnotti, 198 Conn. 209, 212-13, 502 A.2d 404 (1985); probable cause existed to believe that he was involved in the theft of the car. Thus, this claim of the defendant fails.

The defendant’s remaining claim challenges the identification procedures used by the police, and the results of out-of-court and in-court identifications of the defendant made by various witnesses. It is somewhat difficult to glean from his brief the particular basis which he claims as error as to each particular identification. We have examined the transcript of the identification testimony of the witnesses and the photographic arrays in question. Suffice it to say that the in-court identifications by some of the witnesses were not preceded by out-of-court identifications, and that, as to other witnesses, the out-of-court identification procedures employed by the police were not impermissibly suggestive. Suffice it to say also that, as to the one witness who was subjected to a concededly impermissibly suggestive out-of-court identification procedure, there was nonetheless ample indicia of reliability to permit her in-court identification of the defendant to go to the jury. State v. DiStefano, 7 Conn. App. 726, 729, 510 A.2d 995 (1986). Thus, the defendant has failed to establish a basis for error on this claim.

There is no error.

       At oral argument in this court, the defendant abandoned his claim that his arrest was illegal because it was made beyond the officer’s jurisdiction.


author: Borden, J.

text:
    State of Connecticut v. Raymond R. Parent
    (4376)
    Borden, Daly and Bieluch, Js.
    Argued June 10
    decision released August 12, 1986

      John M. Andreini, with whom, on the brief, was Joseph E. Fazzano, for the appellant (defendant).

      Robert J. Enright, special assistant state’s attorney, with whom, on the brief, were Walter D. Flanagan, state’s attorney, and Brian Cotter, assistant state’s attorney, for the appellee (state).
   Borden, J.

The defendant appeals from the judgment of conviction, after a jury trial, of possession of narcotics with intent to sell in violation of General Statutes § 21a-278 (b). He claims that the trial court erred (1) by improper restriction of his right to voir dire prospective jurors, (2) by denying his motions for judgment of acquittal based on insufficiency of the evidence to support his conviction, (3) by admitting the testimony of a witness relating to the defendant’s knowledge of the nature of the substance involved, and (4) in the court’s charge to the jury on the issue of possession. We find no error.

The jury could reasonably have found the following facts: The defendant was employed at the Georgia-Pacific facility in Newtown. In early April, 1984, Maureen Keenan, a delivery supervisor for United Parcel Service (UPS), in Brookfield, supervised the delivery of an overnight package sent from Miami, Florida, and addressed to the defendant at the Georgia-Pacific facility. Keenan described the package as approximately six to eight inches square. She noticed that the package was sent COD but had no COD charge indicated on the outside of the package. She therefore did not know how much to collect on delivery. Because it was an overnight package which she wanted to deliver promptly, Keenan, in accordance with company policy, opened the package to look for a packing slip. There was no such slip. In delivering the package to the defendant at Georgia-Pacific, she opened the package over the protest of the defendant, who did not want her to do so and whom she described as having an excited demeanor. In the package were protective packaging material and a sealed plastic baggie, one to two inches by four inches in size, containing a white powdery substance. She gave the baggie to the defendant, who called Miami to find out the shipping charge.

Later in the same month, Keenan made a second delivery of a similar package to the defendant at Georgia-Pacific. This package was similar to the first in size, was an overnight COD package and had been sent from the same person and address in Miami.

Still later in the same month, a similar third package arrived at UPS for delivery to the defendant. It was from the same address in Miami. When Keenan saw the package, she called David Olson, a UPS security officer. Olson opened the package. It contained a Tupperware plastic container in which, in turn, was a clear plastic bag. The bag contained a white powdery substance later determined to constitute 27.8 grams, or .98 ounces, of cocaine.

After meeting with the police, Olson, accompanied by two members of the Newtown police department, went to Georgia-Pacific to deliver the package to the defendant. Olson arrived at the Georgia-Pacific front desk and told the person there that he had a package for the defendant. The defendant came to the desk, and Olson identified himself as a UPS employee with a COD package from Miami. The defendant gave Olson the ten dollars COD charge, signed the UPS delivery record, and Olson handed the package to the defendant, who took it into his hands. The police officers then arrested the defendant.

The amount of cocaine involved, 27.8 grams, could yield, at a minimum, 278 individual one hundred milligram dosages. By dividing the 27.8 grams into smaller dosages or by adding dilutants, the number of individual dosages could be increased. A fifty milligram dosage would yield a very strong physiological response, and a one hundred milligram dosage would be even more potent and could be fatal to the user.

I

The defendant’s first claim, namely, that the trial court improperly restricted his right to voir dire prospective jurors, requires little discussion. The defendant has made no more than a “minimal pass at complying with” the requirements of proper presentation of such a claim pursuant to Practice Book § 3060F (d) (3). See Enterprise Leasing Corporation v. Dixon, 1 Conn. App. 496, 501, 472 A.2d 1300 (1984). General assertions in his brief regarding the subject matters which he wished to explore, coupled with three transcript references, are insufficient. Id. We, therefore, decline to review this claim.

II

The defendant next claims that the evidence was insufficient to sustain his conviction in two respects: (1) that there was insufficient evidence of his knowledge of the narcotic character of the content of the package; and (2) that there was insufficient evidence of his intent to sell the cocaine. We disagree.

The two-fold test for determining the sufficiency of the evidence to justify a conviction is well established. We first view all of the evidence in the light most favorable to the verdict. We then determine whether a jury could have reasonably concluded, from that evidence and all the reasonable inferences which it yields, that the defendant was guilty beyond a reasonable doubt. State v. DiStefano, 7 Conn. App. 726, 731, 510 A.2d 995 (1986).

We agree with the defendant that in order to establish illegal possession of narcotics the state must prove, not only that the defendant “exercised dominion and control over the substance, [but that he] had knowledge of its presence, and had knowledge of its narcotic character.” State v. Williams, 169 Conn. 322, 335, 363 A.2d 114 (1975). We also agree that mere acceptance of a package containing narcotics is an insufficient basis for an inference of knowledge of its contents; otherwise “the recipient of the package would be liable to conviction, not because of the criminality of his own behavior but because of the wholly unilateral act of the sender.” State v. Richards, 155 N.J. Super. 106, 114, 382 A.2d 407 (1978); see Illinois v. Andreas, 463 U.S. 765, 769 n.3,103 S. Ct. 3319, 77 L. Ed. 2d 1003 (1983). The state’s case here, however, did not depend solely upon the defendant’s acceptance of the package containing the contraband.

This was not an unexpected package sent to the defendant. The jury was not powerless to infer the defendant’s knowledge of its contents. This was the third similar small package from the same source and address in Miami within less than one month. This package contained a small plastic bag which, in turn, contained a white powdery substance determined to be cocaine. In the first package was a small plastic bag containing a white powdery substance. When that package was delivered, the defendant did not want Keenan to open it, and exhibited an excited demeanor when she did so. It is by now common knowledge that cocaine is often packaged as a white powder in small plastic bags. While it was not a necessary inference that the first two recent similar packages sent to the defendant also contained cocaine, that was a permissible inference for the jury to draw. See State v. Dumlao, 3 Conn. App. 607, 616, 491 A.2d 404 (1985) (“in viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence”). Thus, the jury could also infer that the defendant knew that this similar third package, having been sent to him from the same source within such a brief period of time, also contained cocaine.

There was also sufficient evidence of the defendant’s intent to sell the cocaine. The concept of a sale of an illicit drug is not confined to an exchange for value, but “is any form of delivery which includes barter, exchange or gift, or offer therefor . . . .” General Statutes § 21a-240 (50).

Intent may be inferred from conduct. State v. Avila, 166 Conn. 569, 579, 353 A.2d 776 (1974). “Possession of large quantities of prohibited narcotics will support a conclusion that it was possessed for distribution or for sale.” Id. Here, there was evidence that the amount of cocaine which the defendant possessed could yield at least 278 highly potent, even fatal, dosages, and an even greater number of smaller or diluted dosages. There was also evidence that this was the third similar delivery to him within less than one month. “The illegal sale of drugs is a criminal activity which is not necessarily confined to a [particular] period, as if it were inherently akin to the traditional Thanksgiving-to-Christmas retail sales period. It often . . . involves a course of conduct which continues over a long period of time.” State v. Ralston, 7 Conn. App. 660, 682, 510 A.2d 1346 (1986). Although it would have been a permissible inference that the defendant was simply a heavy personal user, it was also a permissible inference that he intended to deliver some or all of the cocaine to others. State v. Dumlao, supra. The jury could reasonably infer that the defendant intended to "sell” the cocaine, within the meaning of that term as defined in General Statutes § 21a-240 (50), and that this third shipment was part of the process of building up or replenishing his inventory.

III

The defendant’s third claim of error involves the admission of Keenan’s testimony regarding the delivery of the first two packages and the contents of the first package. Although the defendant concedes the relevance of Keenan’s testimony, he claims that its prejudicial effect outweighed its probative value. His argument is without merit.

Keenan’s testimony was highly relevant to the defendant’s knowledge and intent. See State v. Murrell, 7 Conn. App. 75, 80, 507 A.2d 1033 (1986). The defendant has not shown that the court abused its broad discretion in performing its classic function of weighing probative value against prejudicial effect. Id., 81.

IV

This leaves for consideration the defendant’s final claim, namely, that the trial court, in its charge to the jury on the concept of possession, took from it the option of finding that the defendant did not have dominion and control of the package. We disagree.

In performing its required function of relating the law of the case to the evidence; see State v. Storlazzi, 191 Conn. 453, 467, 464 A.2d 829 (1983); the court charged on the issue of possession as follows: “If you find the State has not proven beyond a reasonable doubt that Mr. Olson of UPS left the box either on the counter, between himself and [the defendant] or in [the defendant’s] hand, then you must find that the defendant is not guilty. However, if you find beyond a reasonable doubt that the defendant received the package from Mr. Olson after paying the COD charges, [that the defendant] signed the UPS receipt indicating delivery of the package and that Mr. Olson had left the box either on the counter or in the defendant’s hand, then you must find delivery was made of the box addressed to the defendant which placed the defendant in the possession and control of the box.” (Emphasis added.) The defendant excepted to the court’s use of the word “must” as emphasized above.

This case comes within the familiar principle that jury instructions need not be perfect, as long as they are legally correct, adapted to the issues and sufficient for the jury’s guidance. State v. Storlazzi, supra, 464. The ultimate test is whether the charge in its entirety fairly presents the case to the jury. Id., 466. The charge should relate the law to the evidence sufficiently to give the jury a practical guide. Id., 467.

Possession requires dominion and control. State v. Williams, supra. The state’s claim is that when the defendant paid the COD charges for the package and signed the UPS receipt for it, and when Olson either placed it in the defendant’s hand or left it on the counter, the defendant was in possession of it because he had dominion and control over it. That is a perfectly valid legal claim, because at that point UPS had done all it could do to effect delivery of the package to the defendant, the defendant had done all he was required to do to accept delivery, and the package was for all legal and practical purposes in his possession. The signed receipt acknowledged delivery. All that remained to perfect delivery of the box was for Olson to release it into the defendant’s hands or within his reach or accessibility. We fail to see how, under this view of the state’s evidence, the defendant could not be found to have been in possession of the box.

The court did not, as the defendant claims, remove from the jury’s consideration the option of finding that the defendant did not have possession of the box. It instructed the jury that if it had a reasonable doubt about whether the defendant took possession of the box as claimed by the state, it must find the defendant not guilty. The court did, however, relate the law of possession to the evidence. Although the use of the word “must” may have been, as the state suggests, infelicitous, we cannot conclude that it was erroneous.

In State v. Storlazzi, supra, our Supreme Court approved a similar jury instruction in which the trial court related the law to the evidence. In that case, the defendant was charged with risk of injury to a minor child. General Statutes § 53-21. An essential element of that offense was the doing of “any act likely to impair the health or morals of any child.” State v. Storlazzi, supra, 464-65 n.9. After referring to the state’s evidence, the trial court charged the jury that “[t]his is the type of activity that Connecticut General Statutes [§] 53-21 seeks to protect children from. And, that is the type of activity which is likely, if it did take place, to impair the health or morals of a child.” Id., 467. The trial court also instructed the jury that it “must find the defendant guilty of . . . risk of injury to, or impairing the morals of a child,” if the jury found certain facts based on the evidence which the court reviewed at length in its charge. (Emphasis added.) Id. The Supreme Court concluded that “[t]he instructions, read in their entirety, did not direct or advise the jury how to decide the matter, and fairly presented the case to the jury in such a way that no injustice was done to the defendant. Indeed, the instructions comported with the requirement that an allusion to the evidence is necessary to furnish the jury with a practical guide as to how to apply the law to the evidence.” Id., 467. Likewise, the trial court in the present case did not err merely by furnishing the jury with such a practical guide.

Furthermore, the court instructed the jury that it was solely their duty to find the facts, that its comments on “the propriety or lack of propriety of your finding certain facts from the evidence . . . are merely suggestions for you to approve or disapprove in the exercise of your own sound judgment,” and that its references to the facts were only for the purpose of relating the law to the evidence. “The instructions, read in their entirety, did not direct or advise the jury how to decide the matter, and fairly presented the case to the jury in such a way that no injustice was done to the defendant.” Id.

There is no error.

In this opinion the other judges concurred.

       Indeed, after the court’s original charge, the jury specifically asked the court whether a sale included “any form of distribution to one or more persons . . . such as presenting a gift?” The court responded appropriately, and reminded the jury that the defendant was not charged with making a sale, but with possession with intent to sell.

       Perhaps a more neutral phrasing would have been “may,” or “such findings would be sufficient to establish that the defendant had dominion and control of the box.”


author: Bieluch, J.

text:
    State of Connecticut v. William Kitt
    (2190)
    Borden, Daly and Bieluch, Js.

      Argued March 20
    decision released August 12
    upon motion to reargue granted, modified November 11, 1986

      John O’Meara, certified legal intern, and Timothy H. Everett, with whom, on the brief, was Charles E. Oman, certified legal intern, for the appellant (defendant).

      James G. Clark and Christopher Malany, deputy assistant state’s attorneys, with whom, on the brief, were James Bernardi, assistant state’s attorney, and Susan C. Marks, deputy assistant state’s attorney, for the appellee (state).
   Bieluch, J.

The defendant has appealed from the judgment of conviction, after a jury trial, of one count each of burglary in the third degree, in violation of General Statutes § 53a-103; conspiracy to commit burglary in the third degree, in violation of General Statutes § 53a-48; larceny in the third degree, in violation of General Statutes § 53a-124; and conspiracy to commit larceny in the third degree, in violation of General Statutes § 53a-48. The defendant was sentenced to serve two concurrent three year sentences for the underlying counts of burglary and larceny, and two consecutive one year sentences on the conspiracy counts, for a total effective sentence of five years. The defendant claims that the court erred (1) in denying his motion for a mistrial and in failing to give the jury a cautionary instruction after the state attempted to argue that an adverse inference should be drawn from a witness’ decision to remain silent, and (2) in permitting a charge of larceny in the third degree to go to the jury when the information charged him with larceny in the second degree.

The jury could reasonably have found the following facts. The defendant was arrested early in the morning of April 10,1983, outside the Diane Knitwear Fabrics factory in Norwalk. City police officers had been directed to the factory by a security service, which had informed the police that an alarm had been triggered at the plant. Patrolman Steven J. Tyska was the first officer to arrive on the scene. While waiting for other police units to arrive, Tyska heard a person walking on metal stairs and then observed the defendant coming down a factory fire escape. The defendant was placed under arrest by another officer who had arrived at the scene. Tyska thereafter climbed the fire escape and found a large cardboard box and a green garbage bag which together contained a total of 145 sweaters. A subsequent search of the building by a police dog revealed two other men, Leon Knowles and James Leroy Moore, hiding under an empty box.

As a result of these events, the defendant was charged on April 11,1983, in an information with (1) burglary in the third degree, in violation of General Statutes § 53a-103, (2) conspiracy, in violation of General Statutes § 53a-48, and (3) larceny in the second degree in violation of General Statutes § 53a-123. On April 29, 1983, the defendant pleaded not guilty to each of these three counts and elected to be tried by a jury. On the day before the trial commenced on these charges, June 13,1983, the state filed an amended information, adding a fourth count of conspiracy to commit larceny in the second degree, in violation of General Statutes § 53a-48. Our record in this case does not disclose that the defendant was thereafter put to plea on this charge, although, at the outset of the trial on the following day, after the reading of the four-count information, the court informed the jury: “On these charges he was arraigned. On his arraignment, he pleaded not guilty.”

On June 15, 1983, at the close of the state’s case-in-chief, the defendant moved for a judgment of acquittal on the charges of larceny and conspiracy to commit larceny in the second degree, since the only evidence of the value of the 145 sweaters found by the police was below the minimum amount needed to establish larceny in the second degree. The state then conceded that it could not prove that the defendant had committed larceny in the second degree, and declared its intention to ask for an instruction on larceny in the third degree. The court granted the motion for a judgment of acquittal, but in view of the state’s request the court stated that it would instruct the jury on larceny in the third degree. Additional motions for acquittal of the other charges were denied. In addition to charging on burglary in the third degree and larceny in the third degree, the court charged the jury on conspiracy to . commit burglary in the third degree and conspiracy to commit larceny in the third degree. The jury found the defendant guilty of all four of these charges. The court thereafter sentenced him to serve an effective sentence of five years in prison.

The defendant’s first claim of error is that the trial court erred in denying his motion for a mistrial after permitting the prosecution to claim, before the jury, that an adverse inference should be drawn from Moore’s decision to stand on his constitutional right to refuse to testify. We find no error on this claim.

Moore was called to the witness stand by the defense despite his declared intention to stand on his fifth amendment right to refuse to testify because of his pending criminal prosecution. When he repeated his intention to exercise that privilege, the assistant state’s attorney interrupted any further questioning, stating: “Well, your Honor, I believe he is pleading the fifth amendment on the grounds that the answer to the question might incriminate him.” Subsequently, the assistant state’s attorney asserted that “[the fifth amendment] can only be invoked when the question will expose the witness to a substantial hazard of prosecution. So, if he is admitting here that he has invoked his fifth amendment privilege because it will expose him to a substantial hazard of prosecution, I would like to have that.” The defense now argues that these statements improperly raised the inference that Moore had refused to testify because, if he testified truthfully, he would have had to state that he did conspire with the defendant.

Despite the fact that the assistant state’s attorney’s comments were made before the jury, the defendant never objected to those comments on the day when they were made. Rather, on the next day, the defendant moved for a mistrial on this ground. Under very similar circumstances, our Supreme Court, in State v. Reddick, 197 Conn. 115, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986), concluded that the record did not support the defendant’s claim that the court had erred in denying his motion for a mistrial, in which he alleged that the state knowingly and repeatedly asked questions of the witness designed to elicit an invocation of the witness’ fifth amendment privilege. Id., 126. In the present case, the defendant failed to make a timely objection to the prosecutor’s remarks. Nor does the record reveal that the court should have granted the motion for mistrial.

“ ‘[S]ome courts have indicated that error may be based upon a concept of prosecutorial misconduct, when the Government makes a conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege. ... A second theory seems to rest upon the conclusion that, in the circumstances of a given case, inferences from a witness’ refusal to answer added critical weight to the prosecution’s case in a form not subject to cross-examination, and thus unfairly prejudiced the defendant.’ [Namet v. United States, 373 U.S. 179, 186-87, 83 S. Ct. 1151, 10 L. Ed. 2d 278 (1963)].” State v. Reddick, supra, 126. In the present case, it was the defendant’s question which prompted the witness to invoke the fifth amendment, not the state’s examination. The assistant state’s attorney, by his comments, merely clarified the basis for the witness’ invocation of that right. “ ‘[T]he prosecutor need not accept at face value every asserted claim of privilege, no matter how frivolous.’ Namet v. United States, supra, 188.” State v. Reddick, supra, 127. In order to protect the state’s legitimate interest in the prosecution, the prosecutor had the obligation to verify that the witness was invoking his own fifth amendment right. In so doing, he neither attempted to build his case upon adverse inferences, nor did he attempt to afford critical weight to his case by the pursuit of such an inference. Further, as the trial court indicated, if the witness had testified, that testimony could be used against him at his own pending trial. Similarly, his decision not to testify at the defendant’s trial could be relevant to the state’s subsequent prosecution of the witness. Thus, the court did not err in denying the defendant’s motion for a mistrial.

The defendant’s second claim of error is that, since he was originally charged with larceny in the second degree in violation of General Statutes § 53a-123, the court erred in charging the jury on larceny in the third degree in violation of General Statutes § 53a-124 because larceny in the third degree is only a lesser included offense of the form of larceny in the second degree contained in General Statutes § 53a-123 (a) (2). We agree.

On June 15, 1983, when the state rested its case-in-chief, the defendant moved for acquittal of the charges of larceny and conspiracy to commit larceny in the second degree. The court granted that motion but, in accordance with the state’s concession that it could not prevail on the charge of larceny in the second degree and its request for a later instruction on larceny in the third degree, the court advised that it would later instruct the jury on larceny in the third degree. The defendant did not object to this sequence of events at the time, or at any time thereafter before the close of evidence. Further, the defendant did not submit any proposed instructions for the court’s charge to the jury, nor did he except to the court’s charge on larceny in the third degree. The defendant, however, has asked us to review this claim pursuant to State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). We conclude that such review is appropriate.

“The state’s right to amend must be limited to substitutions that do not charge the defendant with an additional or different offense because the defendant has a constitutional right to fair notice, prior to the commencement of trial, of the charges against which he must defend himself. See U.S. Const., amend. VI; Conn. Const., art. I § 8. Unless the original and the amended informations charge the defendant with the same crime, as was the case in State v. Wallace, 181 Conn. 237, 435 A.2d 20 (1980), amendment is permissible only to charge a lesser included offense. The constitutional right to notice is satisfied as to lesser included offenses because, ‘where one or more offenses are lesser than and included within the one charged, notice of the one charged constitutes notice of any lesser included offenses. See Paterno v. Lyons, 334 U.S. 314, 320-21, 68 S. Ct. 1044, 92 L. Ed. 1409 (1948); Walker v. United States, 418 F.2d 1116, 1119 (D.C. Cir. 1969); State v. Conklin, 115 N.H. 331, 335, 341 A.2d 770 (1975); State v. Daniels, 223 Kan. 266, 271, 573 P.2d 607 (1977).’ State v. Rodriguez, 180 Conn. 382, 402, 429 A.2d 919 (1980).” State v. Jacobowitz, 182 Conn. 585, 590-91, 438 A.2d 792 (1981). In this case, we are faced with a claim that “the record adequately [demonstrates] that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial.” State v. Evans, supra, 70.

The underlying question for our consideration is whether larceny in the third degree is a lesser included offense of larceny in the second degree as that crime was charged by the state. If it is not a lesser included offense, then the defendant was not given adequate notice of the charge against him, and his conviction must be reversed.

In State v. Whistnant, 179 Conn. 576, 427 A.2d 414 (1980), the court set out four conditions which must be met before a party is entitled to an instruction on a lesser included offense: “(1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” Id., 588. (Footnote omitted.) In this case, it is the second Whistnant criterion with which we are concerned.

The defendant was charged with larceny in the second degree in violation of General Statutes § 53a-123. No subsection of the statutory crime was specified, nor was any bill of particulars filed. Thus, in measuring for the second criterion of Whistnant, we must determine whether it is impossible to commit any variant of larceny in the second degree as charged by the information without committing larceny in the third degree as defined by General Statutes § 53a-124, since our review of this criterion of Whistnant is limited to the contents of the information and any bill of particulars. State v. Jacobowitz, supra, 593.

General Statutes § 53a-123 defines larceny in the second degree to include all larcenies where “(1) The property consists of a motor vehicle, the value of which is two thousand dollars or less, (2) the value of the property or service exceeds five thousand dollars, (3) the property, regardless of its nature or value, is taken from the person of another, or (4) the property is obtained by defrauding a public community, and the value of such property is two thousand dollars or less.” Larceny in the third degree is defined by General Statutes § 53a-124 to include larceny where “(1) The value of the property or service exceeds one thousand dollars; or (2) the property consists of a public record, writing or instrument kept, held or deposited according to law with or in the keeping of any public office or public servant; or (3) the property consists of a sample, culture, microorganism, specimen, record, recording, document, drawing or any other article, material, device or substance which constitutes, represents, evidences, reflects or records a secret scientific or technical process, invention or formula or any phase or part thereof.” Hence, if the defendant committed larceny by taking a motor vehicle valued at less than one thousand dollars in violation of § 53a-123 (a) (1), or by taking less than one thousand dollars from the person of another in violation of § 53a-123 (a) (3), or from a public community by fraud in violation of § 53a-123 (a) (4), he would have committed larceny in the second degree without having concomitantly committed larceny in the third degree.

Factually, and by concession of the prosecution upon the motion of the defendant for acquittal, it is apparent that the state’s intent then was to proceed with its prosecution of the defendant pursuant to § 53a-123 (a) (2). Therefore, the purpose of the amendment of the information during the trial and after acquittal of the charge of larceny in the second degree and related conspiracy charge was to adapt the prosecution to conform to the testimony that the value of the sweaters taken was between $2500 and $3000, a valuation below the minimum necessary for larceny in the second degree under § 53a-123 (a) (2), but fitting the parameters of larceny in the third degree defined in § 53a-124 (a) (1). Nonetheless, it is possible to commit a larceny in the second degree in violation of § 53a-123 as that crime was charged in this case without, at the same time, committing larceny in the third degree. Larceny in the third degree was not a lesser included offense of larceny in the second degree as originally charged. Therefore, the court erred in permitting the state to amend the information from larceny in the second degree to larceny in the third degree. State v. Jacobowitz, supra, 593.

Our inquiry cannot end with a determination of the merits of the defendant’s claims of error in this case, however. In the course of reviewing this appeal, we have noticed a plain error which, in the interest of justice, must be remedied. Practice Book § 3063; State v. Badgett, 200 Conn. 412, 432 n.10, 512 A.2d 160 (1986). The defendant was improperly convicted of two counts of conspiracy arising out of a single agreement. The state acknowledged, during trial, that “there was a meeting of the minds between [the defendant, Knowles and Moore] to go and commit a burglary at Diane Knitwear on the night in question. And there is also evidence that the meeting of the minds was to go there with the specific intent to commit a larceny.”

“Whether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes. The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one.” Braverman v. United States, 317 U.S. 49, 53, 63 S. Ct. 99, 87 L. Ed. 23 (1942); see also Marcus, Prosecution and Defense of Criminal Conspiracy Cases (1985 and Sup.) § 4.02 [1] [a], p. 4-5 n.13. “The single agreement is the prohibited conspiracy, and however diverse its objects it violates but a single statute. ... For such a violation, only the single penalty prescribed by the statute can be imposed.” Braverman v. United States, supra, 54. The courts of this state have long held that “[t]he gist of the offense of conspiracy is the unlawful combination and not the accomplishment of an objective or objectives, whether lawful or unlawful. . . . Whether the information charges that the combination was formed to accomplish one or many objectives is immaterial. ‘A combination to commit several crimes is a single offence [sic]. . . . No matter how many violations of law may be concerted by the confederates, if the concert takes place at one time, the crime is single.’ ” (Citations omitted.) State v. Hayes, 127 Conn. 543, 588, 18 A.2d 895 (1941).

Accordingly, we find error in the defendant’s conviction of two duplicitous conspiracy offenses, and in the court’s subsequent imposition of consecutive one year prison sentences on those two convictions. This error relates to counts two and four of the amended information.

There is no error on the first count (burglary in the third degree, § 53a-103); there is error on the third count (larceny in the third degree, § 53a-124), the judgment is set aside as to that count and the case is remanded with direction to render judgment that the defendant is not guilty of larceny in the third degree; there is error in the judgment convicting the defendant of both the second count (conspiracy to commit burglary in the third degree, § 53a-48) and the fourth count (conspiracy to commit larceny in the third degree, § 53a-48), the case is remanded and the trial court is directed to exercise its discretion and set aside the conviction on either the second count or the fourth count and to render judgment that the defendant is not guilty on that count.

In this opinion the other judges concurred.

       The defendant also raises the claim that he received ineffective assistance of counsel. This claim is not properly raised on appeal and should be raised in a petition for a writ of habeas corpus. State v. Leecan, 198 Conn. 517, 541-42, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986); State v. Rivera, 196 Conn. 567, 571, 494 A.2d 570 (1985); Miller v. Angliker, 4 Conn. App. 406, 416-17, 494 A.2d 1226 (1985).

       General Statutes § 53a-123 (a) (2) requires that for larceny in the second degree to be committed the property taken must exceed $5000 in value. The only testimony offered by the state placed the total value of the sweaters between $2500 and $3000.

       At the outset, we wish to note a defect in the proceedings below. It appears that the defendant was never put to plea on the fourth count of conspiracy to commit larceny in the second degree added by the state in its substituted information of June 13,1983. Although an amended file copy of the information contains a notation that the defendant pleaded not guilty to that count at his original arraignment on April 29,1983, the fourth count was not added to the charges by the state until the day before trial commenced. Previous to that time, there was only one charge of conspiracy filed against the defendant. This issue was not raised on appeal as a claim of error, but we deem it important to clear the record. In any event, however, the failure formally to arraign the defendant on the fourth count would be harmless error after trial and verdict. See State v. Piskorski, 177 Conn. 677, 748, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979).

       The defendant also claims that the court erred in failing to give a curative instruction to negate the effect of that inference. Indeed, although the court indicated that it would be receptive to any curative instruction which the defendant might propose, no such proposed instruction was ever offered by the defendant. This line of argument, therefore, is unavailing. State v. Reddick, 197 Conn. 115, 128, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986).

       The defendant also claims that this line of argument was repeated by the prosecution during closing arguments. Since closing arguments were not transcribed, however, we cannot address this claim.

       Although neither the state nor the court expressly alluded to an amendment of the third and fourth counts to the lesser charges of larceny in the third degree and conspiracy to commit larceny in the third degree, respectively, we conclude from the record that the information was amended in that fashion. The information filed by the prosecution on June 13, 1983, shows a handwritten or manuscript amendment of the third and fourth counts to the third degree of each offense. Practice Book § 624 provides, in relevant part, that “[a]fter commencement of the trial for good cause shown, the judicial authority may permit the prosecuting authority to amend the information or indictment at any time before a verdict or finding if no additional or different offense is charged and no substantive rights of the defendant would be prejudiced.”

       In view of our discussion, infra, of the fourth count, namely, conspiracy to commit larceny in the third degree, we do not consider at this time the amendment of that count to this lesser degree of conspiracy to commit larceny.


text:
    State of Connecticut v. Samuel Loyd
    (4318) (4319) (4320)
    Dupont, C. J., Borden and Spallone, Js.
    Argued June 3
    decision released August 12, 1986

      John W. Watson, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant in all cases).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Robert Lacobelle, assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

On January 13, 1983, the defendant’s counsel filed motions, under General Statutes § 54-56d, to determine his competence to stand trial. Pursuant to these motions, the defendant was found competent to stand trial. On July 26, 1983, the defendant entered guilty pleas under the Alford doctrine to all of the counts in all of the informations with which he was charged. See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). The plea agreement was that the state would recommend a total effective sentence of ten years, suspended after eight years, and that the defendant could argue for a lesser sentence. It is clear from the record that the entire plea bargain was a unitary package.

Written motions to withdraw the pleas as involuntary due to the defendant’s “mental status” were filed on August 3, 1984. All of the motions were identical, were based upon a report concerning the mental illness of the defendant prepared one and one-half months after the date of the taking of the pleas, and specifically alleged that the canvasses of the defendant’s pleas were proper under Practice Book §§ 711 through 713. The trial court, Callahan, J., which had originally accepted the pleas, heard testimony on the motions and denied them. The denials were based solely upon a review of the testimony relating to the defendant’s mental condition existing at the time the pleas were taken, and upon the court’s own knowledge of the defendant’s attitude, appearance, and manner at that time. Ultimately, on March 15, 1985, the trial court, Nigro, J., imposed a series of concurrent sentences, with a total effective sentence of eight years. These appeals followed.

The state concedes that the trial court did not, during the canvasses of the defendant’s pleas, inform the defendant of the mandatory minimum sentences for each of the crimes with which he was charged, as mandated by Practice Book § 711 (1). Both parties concede that the defendant did not raise the first issue of this appeal during the hearing on the defendant’s motions to withdraw his pleas. Since the record supports the defendant’s claims that a violation of a fundamental constitutional right is involved, however, the claims may be considered for the first time on appeal. State v. Childree, 189 Conn. 114, 119, 454 A.2d 1274 (1983); State v. Evans, 5 Conn. App. 113, 116, 497 A.2d 73 (1985); see also State v. James, 197 Conn. 358, 365, 497 A.2d 402 (1985) (failure to comply with Practice Book § 711 raises “grave questions . . . pertaining to the voluntary nature of the plea and consequently its constitutional validity”).

The failure of the trial court to canvass the defendant’s pleas in order to ascertain the knowing, voluntary, and intelligent nature of his pleas is of constitutional dimension and is cognizable on appeal under the “exceptional circumstances” doctrine of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). State v. Badgett, 200 Conn. 412, 418, 434, 512 A.2d 160 (1986); State v. Amarillo, 198 Conn. 285, 313 n.16, 503 A.2d 146 (1986).

The principles oí Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), require that a plea be knowing, intelligent and voluntary. In State v. Badgett, supra, a plea was found to be knowing, intelligent and voluntary because the record showed that the defendant must have been aware of his right to a jury trial, although the trial court only advised him of his right to a trial. There was, in effect, substantial compliance with a constitutional requirement and with Practice Book § 711 (5) although there was not precise compliance. In the present case, there is nothing in the record from which we can assume that the defendant was aware of the mandatory minimum sentences for each of the crimes with which he was charged or that two of those crimes provided for sentences which could not be suspended. Not only was there no substantial compliance with Practice Book § 711 (2) and (3), there was no compliance with those sections at all.

We do not read State v. Badgett as holding that the federal constitution requires only that there be a voluntary waiver during a plea canvass of the right to a jury trial, the right of confrontation, and the right against self-incrimination. Boykin v. Alabama, supra, upon which Badgett must and does rely, involved a situation where there was no plea canvass at all. The Boykin court emphasizes that a plea of guilty is a conviction and that it must be voluntary. Although that court discusses the triumverate of knowledge of rights to a jury trial, confrontation, and the right not to incriminate oneself, the court also discusses the fact that the defendant must be aware of and have an understanding of all of the elements of the crime or crimes with which he is charged, and of his sixth amendment right to counsel. The essential holding of Boykin is that an accused must be equipped with a full understanding of what a guilty plea “connotes and of its consequences.” One consequence of a guilty plea is surely the punishment which may follow. The dissenters in Badgett state that the entire court agrees that the defendant may challenge the constitutional implications of his plea canvass even though he failed to mount such a challenge in the trial court. It is also clear that the dissent does not interpret the majority decision as negating the obligation of the trial court to acquaint the defendant with the elements of the crime, and the maximum penalty for the crime.

The provisions of Practice Book § 711 are mandatory when challenged on direct appeal. “ ‘After a guilty plea is accepted but before the imposition of sentence the court is obligated to permit withdrawal upon proof of one of the grounds in § 721.’ ” State v. Lasher, 190 Conn. 259, 265, 460 A.2d 970 (1983); see also State v. Watson, 198 Conn. 598, 604, 504 A.2d 497 (1986); State v. James, supra, 363-64; State v. Schaeffer, 5 Conn. App. 378, 390, 498 A.2d 134 (1985); cf. D’Amico v. Manson, 193 Conn. 144, 156-57, 476 A.2d 543 (1984) (error which requires relief on appeal does not necessarily require relief in habeas corpus proceeding). Here, there was no substantial compliance with Practice Book § 711 because of the trial court’s failure to inform the defendant of the mandatory minimum sentences for each of the crimes with which he was charged, and of the fact that, as to the two burglary counts, five years of the sentences could not be reduced or suspended. We conclude that the defendant’s motions to withdraw his pleas should have been granted.

The second claim of the defendant is that the trial court acted as an unsworn witness at the hearing on the defendant’s motions because the judge utilized his own observations about the defendant’s attitude, appearance and manner in determining the mental competency of the defendant at the time the pleas were entered. When the trial court finds that the defendant’s plea is knowing, intelligent and voluntary, there is an implicit finding that the defendant was competent at that time. State v. Watson, supra, 607. The trial judge who takes a plea is obviously in the best position to assess whether a defendant, at that time, behaved or spoke inappropriately or was, in any way, irrational. See State v. Watson, supra, 606-607. The court acted not as a witness but as the trier of the factual issue of the competency of the defendant to enter his guilty pleas. The court is mandated to determine whether guilty pleas are knowingly and voluntarily entered. Of necessity, that determination must be based, in part, upon its own personal observations relating to the demeanor, appearance and attitude of a defendant while answering the questions asked during a canvass of a guilty plea. In this case, based upon the evidence introduced at the hearing on the defendant’s motions, and the court’s own conclusions about the defendant’s mental competency, the denial of the defendant’s motions would have been proper, absent the failure to comply with Practice Book § 711.

There is error, the judgments are set aside and the cases are remanded with direction to permit the defendant to withdraw his guilty pleas, and for further proceedings according to law.

In this opinion the other judges concurred.

       The defendant was charged by multiple informations in three different cases in January of 1983 with two counts of robbery in the first degree, in violation of General Statutes § 53a-134 (a); two counts of burglary in the first degree, in violation of General Statutes § 53a-101 (a) (1); unlawful restraint in the first degree, in violation of General Statutes § 53a-95 (a); larceny in the second degree, in violation of General Statutes § 53a-119 and General Statutes § 53a-123 (a) (3); and burglary in the third degree, in violation of General Statutes § 53a-103 (a).
      Robbery in the first degree carries a definite sentence of not less than one year nor more than twenty years. General Statutes § 53a-35a. Thus, the crime has a mandatory minimum sentence of one year within the meaning of Practice Book § 711 (2). Burglary in the first degree carries a definite sentence of not less than five nor more than twenty years; General Statutes § 53a-35a; five years of which may not be suspended or reduced. General Statutes § 53a-101 (c). That crime, therefore, has a mandatory minimum sentence which may not be suspended. Practice Book § 711 (3). Similarly, unlawful restraint in the first degree, larceny in the second degree and burglary in the third degree all carry mandatory minimum sentences of one year. General Statutes § 53a-35a.
      Practice Book § 711 (2) and (3) require the court personally to advise the defendant of both a mandatory minimum sentence and of a sentence which may not be suspended. The court must so advise the defendant because in the former case the defendant may actually have to serve a suspended mandatory minimum sentence if he violates probation and, in the latter case, must serve the mandatory minimum nonsuspendable sentence.

       Practice Book § 711 provides: “The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he fully understands:
      “(1) The nature of the charge to which the plea is offered;
      “(2) The mandatory minimum sentence, if any;
      “(3) The fact that the statute for the particular offense does not permit the sentence to be suspended;
      “(4) The maximum possible sentence on the charge, including, if there are several charges, the maximum sentence possible from consecutive sentences and including, when applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction; and
      “(5) The fact that he has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he has the right to be tried by a jury or a judge and that at that trial he has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself.”

       In State v. James, 197 Conn. 358, 494 A.2d 402 (1985), the Supreme Court considered whether failure to inform a defendant of the maximum possible sentence as required by Practice Book § 711 (4) was reversible error. Noting that the length of time a defendant may have to spend incarcerated is an essential factor in determining whether or not to plead guilty, the court held that the trial court had failed to ensure that the plea had been entered with the defendant’s full understanding, and that it was therefore error to deny the defendant’s motion to withdraw his plea.

       Practice Book § 721 in pertinent part provides: “The grounds for allowing the defendant to withdraw his plea of guilty after acceptance are as follows:
      “(1) The plea was accepted without substantial compliance with Sec. 711.”


author: Bieluch, J. Spallone, J.,

text:
    State of Connecticut v. Edward Palmer
    (3125)
    Borden, Spallone and Bieluch, Js.

      (One judge dissenting)

    Argued May 8
    decision released August 12, 1986

      John R. Williams, for the appellant (defendant).

      Frank S. Maco, assistant state’s attorney, with whom, on the brief, was Donald A. Browne, state’s attorney, for the appellee (state).
   Bieluch, J.

The defendant has appealed from the judgment rendered after his conviction by a jury of two counts of attempted murder in violation of General Statutes §§ 53a-54a (a) and 53a-49. He claims as error (1) the trial court’s denial of his motion for acquittal based on the sufficiency of the evidence, and (2) its refusal to instruct the jury concerning lesser included offenses.

The jury could reasonably have found the following facts. On December 20,1980, Detective Robert Kwet and Officer Kathy Sheehan, then Kathy Kwet, police officers of the city of Bridgeport and formerly husband and wife, were assigned to a special rape decoy detail. The special operation was designed to lure an unknown male, termed the “bumper rapist,” who was sexually assaulting lone women whose cars were rammed from behind by him when they were stopped at stop signs. After they exited their vehicles in response to the intentional collision caused by him, they became his prey.

Sheehan drove her personal car while Kwet was positioned in the back seat out of view. Shortly after midnight, Sheehan noticed that she was being followed by a car. After she stopped at a stop sign, the vehicle that was following her struck the back of her car. Sheehan stated to Kwet, “This must be him.” At about that time, her car was bumped again. She then left the car holding her service weapon in her right hand behind her and concealed by a coat. Kwet was lying prone on the rear seat out of sight. The driver of the second car, a male, having left his car at the same time, approached her. When they were eight to ten feet apart, Sheehan saw that the individual was raising a revolver and pointing it at her. When Sheehan saw this, she felt that she was in immediate danger of her life. She and the man then fired at each other almost simultaneously. After firing her weapon once, Sheehan thought she had been hit. She noticed a hole in her car about six inches away from her leg, and then jumped back into the front seat of her car when she heard an exchange of gunfire between Kwet and the attacker. Kwet yelled to her to get down because they were still being fired upon.

From his position in the back seat, Kwet observed the man coming at the car. Kwet then fired through the back window. The attacker retreated, but shots then rang out from in back of Sheehan’s car. When Kwet was being fired upon, his head and shoulders were visible through the rear window. After receiving gunfire from the rear of Sheehan’s car, Kwet smashed the rear window and saw the attacker, first, on the left side of his own car by the fender, and then in the car, bobbing his head up and down near the dashboard three or four times. The attacker then fled in his car and the police lost him.

Sheehan described the individual who struck her car as being 5’9” or 5’10” inches tall, of medium build, dressed in dark clothing and wearing a ski hat pulled down over his face. Kwet described the man as having his face covered with a knit cap. He stated that two shots were fired by the assailant at his wife and two shots were fired at him. Kwet noticed ricochet marks on Sheehan’s vehicle which resulted from the assailant’s gunfire.

Subsequently, a bullet was discovered in Sheehan’s car. This was established as having been fired from a weapon that was proved to be in the possession of the defendant at the time of the incident. The defendant was identified as the person who stole the revolver in Bridgeport on November 28, 1980. The weapon was later found in the defendant’s possession when he was arrested during a burglary at the Superior Court in Bridgeport almost three months after the shooting.

We find no merit to the defendant’s claim of error that there was insufficient evidence to convict him of two counts of attempted murder beyond a reasonable doubt. The jury, in finding the defendant guilty, reasonably found that the defendant stole a revolver, that a person similar in height and build to the defendant fired that same revolver approximately three weeks later during the shoot-out with Kwet and Sheehan, and that the defendant was still in possession of the weapon almost three months after the shooting when he was apprehended in the course of a burglary at the courthouse. “[I]n a criminal prosecution, the state has the burden of proving the case set forth in the information in all its material parts beyond a reasonable doubt, so that the court must find, in order to convict, that all the elements of the crime charged have been established beyond a reasonable doubt.” State v. Johnson, 162 Conn. 215, 231, 292 A.2d 903 (1972); Lego v. Twomey, 404 U.S. 477, 92 S. Ct 619, 30 L. Ed. 2d 618 (1972); State v. Gallivan, 75 Conn. 326, 329, 53 A. 731 (1902). “In determining whether the evidence is sufficient to sustain a verdict, ‘the issue is whether the jury could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt.’ ” State v. Giguere, 184 Conn. 400, 402-403, 439 A.2d 1040 (1981), quoting State v. Bember, 183 Conn. 394, 397, 439 A.2d 387 (1981). In ruling on such a motion, it is well settled that the evidence presented at the trial must be given a construction most favorable to sustaining the jury’s verdict. State v. Jackson, 176 Conn. 257, 262, 407 A.2d 948 (1978). The evidence in this case, both direct and circumstantial, reviewed in accordance with the above principles, fully supports the guilty verdicts of the jury.

We also conclude that the court did not err in refusing to instruct the jury on lesser included offenses. The defendant requested in writing that the trial court instruct the jury on the lesser included offenses of reckless endangerment in the first degree; General Statutes § 53a-63; and threatening; General Statutes § 53a-62. The court declined to do so.

“A defendant is entitled to an instruction on a lesser included offense if, and only if, the following conditions are met: (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) the evidence, introduced by either the state or the defendant, or by a combination of their proofs, justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” State v. Tinsley, 181 Conn. 388, 396-97, 435 A.2d 1002 (1980), cert. denied, 449 U.S. 1086, 101 S. Ct. 874, 66 L. Ed. 2d 811 (1981); State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980). Our concern here lies with the second criterion of this lesser included offense test.

The first count of the information upon which the defendant was tried in this case states, in pertinent part, that the defendant “with intent to cause the death of one Kathy Kwet, did shoot at and attempt to cause the death of said Kathy Kwet.” This count sets forth the statutory elements of the attempted murder of Kathy Kwet. The second count alleges the same elements of the crime of the attempted murder of Robert Kwet. Reckless endangerment in the first degree, as defined in General Statutes § 53a-63, states that “[a] person is guilty pf reckless endangerment in the first degree when, with extreme indifference to human life, he recklessly engages in conduct which creates a risk of serious physical injury to another person.” Under General Statutes § 53a-3 (4), serious physical injury is defined as “physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ.”

A precise parallel to the case before us exists in the penal laws and judicial authority of New York. Under New York Penal Law § 125.25, “[a] person is guilty of murder in the second degree when: (1) With intent to cause the death of another person, he causes the death of such person or of a third person. ...” This is the same definition of murder as exists in our penal code and as alleged in the two counts of attempted murder of which the defendant was convicted. New York Penal Law § 120.25 creates the crime of reckless endangerment in the first degree in these terms: “A person is guilty of reckless endangerment in the first degree when, under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person.” This definition of reckless endangerment in the first degree, while basically similar to that crime in our jurisdiction, is more confining objectively since it adds the element of “depraved indifference to human life” and does not reach below the creation of “a grave risk of death” to “a risk of serious physical injury.” Under General Statutes § 53a-63, however, reckless endangerment in the first degree also exists when reckless conduct creates a risk of “serious physical injury to another person” which is also defined in General Statutes § 53a-3 (4) as “serious disfigurement, serious impairment of health or serious loss of impairment of the function of any bodily organ.”

The lesser included offense doctrine exists in our jurisdiction by judicial decision. State v. Tinsley, supra; State v. Whistnant, supra. In New York, this doctrine has been established by statute. McKinney’s Criminal Procedure Law § 1.20, subd. 37. By this enactment, the term “lesser included offense” is defined as follows: “When it is impossible to commit a particular crime without concomitantly committing, by the same conduct, another offense of lesser grade or degree, the latter is, with respect to the former, a ‘lesser included offense.’ ” This definition comports with the second criterion of Tinsley and of Whistnant for a lesser included offense charge, the condition now on review.

In People v. Ramirez, 79 App. Div. 2d 978, 434 N.Y.S.2d 281, rev’d, 55 N.Y.2d 708, 431 N.E.2d 623, 447 N.Y.S.2d 138 (1981), the New York courts had before them a defendant charged with seven crimes, including two counts of attempted murder in the second degree in violation of Penal Law §§ 125.25, subdivision 1, and 110.00. At the close of the state’s case, the trial judge reduced one of the attempted murder counts to reckless endangerment in the first degree in violation of Penal Law § 120.25, and dismissed the remaining counts of the indictment. The defendant appealed on the ground that the conviction for reckless endangerment in the first degree was improper because that crime did not meet the statutory definition of a lesser included offense with respect to the crime of attempted murder in the second degree with which he had originally been charged. The Supreme Court, Appellate Division, Second Department, affirmed the ruling of the trial court.

On further appeal to the Court of Appeals, the Appellate Division was reversed. In People v. Ramirez, 55 N.Y.2d 708, 431 N.E.2d 623, 447 N.Y.S.2d 138 (1981), the Court of Appeals relied upon the statutory definition of a lesser included offense, which is essentially equivalent to the second criterion of the Tinsley and Whistnant test of a lesser included offense under review before us, and overturned the defendant’s conviction of reckless endangerment in the first degree as a lesser included offense. The court reasoned as follows: “The plain meaning of [the lesser included offense] statute is clear — that is, that one crime cannot be a lesser included offense of another if it is theoretically possible to commit the greater crime without concomitantly committing the lesser. ... As the Appellate Division noted in the present case, it is theoretically possible to commit the greater crime of attempted murder in the second degree (Penal Law, §§ 110.00,125.25, subd. 1) without also committing the lesser crime of reckless endangerment in the first degree (Penal Law, § 120.25) since, if the attempt is rendered innocuous by some circumstance of factual impossibility, no grave risk of death to another person is created, as is required for the crime of reckless endangerment in the first degree. Accordingly, the crime of reckless endangerment in the first degree (Penal Law, § 120.25) is not a lesser included offense of attempted murder in the second degree (Penal Law §§ 110.00, 125.25, subd. 1).” Id., 710-11.

The two counts of the information upon which the defendant in the present case was convicted alleged the offense of attempted murder in the manner specified in our penal code. The elements of these charges as described in the information are identical to those in the charge of attempted murder in the second degree before the New York courts in Ramirez. The elements of reckless endangerment in the first degree under our penal code, which the defendant requested be given by the trial court in its jury instructions as a lesser included offense, are similar to those of reckless endangerment in the first degree under the New York penal law which was rejected in Ramirez as a lesser included offense to attempted murder in the second degree, a charge identical to attempted murder under our statutes in §§ 53a-54a (a) and 53a-49. The statutory definition of a lesser included offense before the courts in Ramirez is identical to the second prong of the test for a lesser included offense charge set out in Tinsley and Whistnant and at issue before us. Under these circumstances, Ramirez is compelling and we follow its reasoning. It is possible to commit the crime of attempted murder under our penal code without first committing the crime of reckless endangerment in the first degree. The trial court, therefore, correctly refused to charge that reckless endangerment in the first degree was a lesser included offense of the principal charge of attempted murder alleged in the two counts of the information against the defendant. In this case, reckless endangerment in the first degree was not a necessary step in the progression to the crime of attempted murder as charged in the information.

The defendant also claims that the trial court erred in refusing to instruct the jury on the lesser included offense of threatening. General Statutes § 53a-62 defines threatening, as relevant here, as follows: “(a) A person is guilty of threatening when: (1) By physical threat, he intentionally places or attempts to place another person in fear of imminent serious physical injury. . . .” We disagree with this claim also.

State v. Jacobowitz, 182 Conn. 585, 438 A.2d 792 (1981), is conclusive of this issue. In Jacobowitz, at the close of the state’s case at trial, it requested and received the permission of the court to file a second substituted information. The new information deleted the charge of attempted murder and substituted for it the crime of threatening, a violation of General Statutes § 53a-62 (a) (1). The defendant excepted to this substitution. He later appealed from his conviction of the substitute charge of threatening, claiming error by the trial court in permitting the state, after the close of its case, to file a new information substituting the charge of threatening for attempted murder.

The question of whether threatening is a lesser included offense to attempted murder arose in this context. Unless the original and amended informations charge the defendant with the same crime, amendment is permissible only to charge a lesser included offense. The constitutional right to notice is satisfied as to lesser included offenses because, “ ‘where one or more offenses are lesser than and included within the one charged, notice of the one charged constitutes notice of any lesser included offenses. . . . ’ State v. Rodriguez, 180 Conn. 382, 402, 429 A.2d 919 (1980).” Id., 590-91. Consequently, the central issue before the court in Jacobowitz was whether the crime of threatening is a lesser included offense encompassed within the originally charged crime of attempted murder. Id., 591.

Our Supreme Court found that the trial court erred in permitting the state to substitute a new information charging the defendant with threatening rather than with attempted murder, since the former is not a lesser included offense of the latter crime. “Although there is obvious overlap between the two crimes, each requires proof of different elements: attempted murder under General Statutes §§ 53a-49 (a) (2) and 53a-54a (a) requires the state to show intentional conduct constituting a substantial step toward intentionally causing the death of another person; threatening under General Statutes § 53a-62 requires the state to show that the defendant, by physical threat, intentionally placed or attempted to place another person in fear of imminent serious physical injury. It is not the danger or risk of injury, but the victim’s perception, which is essential to the latter crime. As the defendant argues, attempted murder does not require placing in fear, and it is possible to imagine an attempted murder, such.as a shot from ambush, in which there has been no prior threatening act.” Id., 592-93. The court then concluded that the information for attempted murder did not charge any prior threatening act, even though it might have done so. While recourse may be had to the evidence presented at the trial with regard to the consideration upon review of the third and fourth criteria of the test for a lesser included offense restated in State v. Tinsley, supra, and State v. Whistnant, supra, such evidentiary considerations do not enter into a consideration of the second criterion, which is limited to the contents of the information and the bill of particulars. Id., 593.

The two counts of the information charging the defendant with attempted murder recite separately in the language of General Statutes §§ 53a-54a (a) and 53a-49 that “the said EDWARD PALMER, with intent to cause the death of one KATHY KWET, [and one ROBERT KWET, respectively,] did shoot at and attempt to cause the death of the said KATHY KWET, [and the said ROBERT KWET, respectively,]” in violation of the two statutes. There is no allegation in these counts within the ambit of the charge of threatening under General Statutes § 53a-62. The latter, therefore, is not a lesser included offense within the specifications of the counts alleging attempted murder. The trial court properly refused to charge on threatening as a lesser included offense.

There is no error.

In this opinion Borden, J. concurred.

Spallone, J.,

dissenting. The majority has broadened Whistnant to the extent that the trial court, when making a determination as to whether a lesser included offense should be charged, must engage in speculation and be concerned with a plethora of unpleaded “theoretical possibilities.”

The second prong of State v. Whistnant, 179 Conn. 576, 427 A.2d 414 (1980), expressly and categorically restricts the court to the factual allegations enunciated in the charging document: “[I]t is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser. . . . ” (Emphasis added.) State v. Whistnant, supra, 588. A comparison with the language found in People v. Ramirez, 55 N.Y. 2d 708, 431 N.E. 2d 623, 447 N.Y.S. 2d 138 (1981), that “it is theoretically possible to commit the greater crime of attempted murder . . . without also committing the lesser crime of reckless endangerment...” (emphasis added); id., 710-11; clearly discloses that our Supreme Court, unlike the New York Court of Appeals, has precluded any magic carpet flight of fancy into the area of speculation and mandates that the trial court examine the charging document within its four corners, and, based on the facts as pleaded therein, conclude whether a charge of a lesser included offense is warranted.

In this case, the information alleges the manner in which the crimes were committed. The defendant was accused of “shooting at” the victims. One can “shoot at” a person without the intent to kill. But it is axiomatic that “shooting at” a person, by the very nature of the act, creates a risk of serious physical injury to that person. Under the facts and circumstances in this case, it is not possible to commit attempted murder in the manner charged in the information without committing the lesser offense of reckless endangerment.

Whistnant is clearly distinguishable from Ramirez, is better law, and more closely reflects the notion, implicit in Connecticut criminal jurisprudence, that the state as well as the defendant is better served by a system which requires that the trial court, when making a determination of whether to charge a lesser included offense, does so within the parameters of the charging document and refrains from engaging in an esoteric quest for “theoretically possible” unpleaded events.

Accordingly, I dissent.

       Our penal code was enacted by Public Acts 1969, No. 828, effective October 1,1971. Much of the code is based on comparable provisions of the New York Revised Penal Law, effective September 1, 1967. Commission to Revise the Criminal Statutes, Commentary on Title 53a, The Penal Code, p.l.


text:
    Anthony G. Zanavich v. Board of Education of the City of Waterbury
    (4287)
    Dupont, C. J., Hull and Borden, Js.
    Submitted on briefs June 16
    decision released August 12, 1986

      William J. Dolan and Ronald Cordilico filed a brief for the appellant (plaintiff).

      Thomas E. Porzio filed a brief for the appellee (defendant).
   Borden, J.

The plaintiff, a tenured teacher employed by the defendant, the Waterbury board of education, appeals from the judgment of the trial court dismissing his appeal from the decision of the defendant which terminated his employment. He claims that the court erred in dismissing his appeal because the termination was flawed in three respects: (1) the defendant gave an inadequate written statement of its decision; (2) the defendant improperly imposed on the plaintiff the burden of proof at the termination hearing; and (3) the termination hearing did not comport with basic due process standards. We find error.

The following facts are not in dispute: On March 5, 1979, the plaintiff fell while at work and received work related injuries to his back, neck, elbow and hand. He was still experiencing medical problems in March, 1982, when the defendant gave him a preliminary notice, pursuant to General Statutes § 10-151, that termination of his employment was under consideration. In response to his request for a hearing and for a written statement of the defendant’s reasons, the defendant stated as follows: “The reason for such action is insubordination against Reasonable Rules of the Board of Education; failure to report to work without appropriate approval; and other due and sufficient causes.” After the hearing, the board gave a written notice to the plaintiff of its decision as follows: “VOTED: That the contract of [the plaintiff] be terminated ... for the reasons of: insubordination against reasonable Rules of the Board of Education; failure to report to work without appropriate approval for absence; and other due and sufficient cause.”

The plaintiff appealed to the trial court, which rejected his claims. This appeal followed.

I

The plaintiff first argues that the board’s written statement of the reasons for its actions is constitutionally inadequate under Lee v. Board of Education, 181 Conn. 69, 434 A.2d 333 (1980). We agree.

In Lee, the Supreme Court held “that a tenured teacher discharged for cause under General Statutes § 10-151 (b) is entitled, as a matter of constitutional law, to a written statement of the decision reached, the reasons for the determinations, and a fair summary of the evidence relied on. ” (Emphasis added.) Id., 79. Simply and briefly stated, the written statement of the defendant is bereft of any summary of the evidence relied on. It is true that “[t]he statement of reasons and a fair summary of the evidence relied upon need not reflect the polish of a judicial opinion. Reasoned and fair decisionmaking, not technical finesse, is guaranteed by the due process standard of the state and federal constitutions.” Id., 80. It is also true that “[cjonclusory language, however, will not suffice.” Id. The terse, conclusory written decision of the defendant does not “state . . . the evidence upon which it relied.” Id.

Although our resolution of this claim of the plaintiff is dispositive, we also address his other claims. We do so because they are likely to recur at the further proceedings following our remand.

II

The plaintiff also claims that, at the termination hearing, the defendant erroneously imposed on him the burden of proof as to why he should not be terminated, and that the termination hearing itself failed to meet basic standards of due process. We agree.

It is clear that the defendant had the burden of proving the grounds of termination alleged. Tucker v. Board of Education, 177 Conn. 572, 576, 418 A.2d 933 (1979). It is also clear that the defendant was “acting in a quasi-judicial capacity”; Petrowski v. Norwich Free Academy, 199 Conn. 231, 234, 506 A.2d 139 (1986); and that the plaintiff was entitled to “a fair hearing by an impartial panel.” Id., 235.

It is difficult to glean from the transcript of the hearing precisely who were the persons hearing the matter and who were the witnesses. Indeed, the face sheet of the transcript indicates that the hearing was held “before” seven named persons, one of whom was the president of the board and two of whom were the superintendent and deputy superintendent of schools. The transcript also indicates that the superintendent and deputy superintendent appeared to testify to facts, despite the fact that they were two of those ostensibly hearing the matter. At the least, their role is unclear from this record.

It is clear, however, that an attorney from the office of the Waterbury corporation counsel appeared for the board to present its case. At the outset of the hearing, the counsel began by “establishing the facts as I see them.” He did this, however, not by presenting evidence or documents to the hearing tribunal, but by reciting “facts” about the plaintiffs absence from work and the purported lack of explanation therefor. The counsel then stated: “Now, this hearing is for [the plaintiff] to give just cause, just reason why he refused to work, why he has not responded and why he’s been out with no doctor’s excuse on record.” The plaintiff objected that an undue burden was being placed on him and that the hearing was not fair.

This skewed course was, however, never corrected. From there, the “hearing” degenerated into a free-form discussion which hardly approached a quasi-judicial administrative hearing. There was no orderly presentation of sworn testimony and documentary evidence which the plaintiff could challenge by cross-examination. Much of the “evidence” came in through the unsworn statements of the board’s counsel. Furthermore, it is apparent from the transcript that both he and the board regarded themselves as allies in the same cause. For example, when the plaintiff sought to introduce into evidence a series of medical reports regarding his condition, the chairman of the board stated: “All those reports that you’re going to submit to the Board are— I’m going to tell you right now that they will be referred to the Corporation Counsel.” An administrative hearing does not have to match the model of a trial in court. See Pagano v. Board of Education, 4 Conn. App. 1, 9-10, 492 A.2d 197 (1985). It must, however, meet some modicum of orderly and fair procedure. Id. This hearing did not.

There is error, the judgment is set aside and the case is remanded with direction to sustain the plaintiff’s appeal and to return the case to the board for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       Presumably, the other four were members of the board.