text:
    State of Connecticut v. Thurlow Carey
    (8556)
    Daly, O’Connell and Landau, Js.
    Submitted on briefs October 6,1992 —
    decision released February 16,1993

      John M. Hudock, certified legal intern, and Todd D. Fernow filed a brief for the appellant (defendant).

      Timothy J. Sugrue, assistant state’s attorney, John M. Bailey, state’s attorney, and Pedro Segarra, former deputy assistant state’s attorney, filed a brief for the appellee (state).
   O’Connell, J.

This matter is now before us on remand from the Supreme Court. We previously considered it in State v. Carey, 25 Conn. App. 421, 594 A.2d 1011 (1991), in which we did not reach the merits of the appeal but remanded it to the trial court for dismissal of the probation revocation proceedings on jurisdictional grounds. The Supreme Court granted certification, reversed our judgment and remanded the case to this court for consideration of the merits of the defendant’s appellate claims. State v. Carey, 222 Conn. 299, 610 A.2d 1147 (1992).

This is the defendant’s appeal from the revocation of his probation. He claims that the evidence presented at his revocation hearing (1) was insufficient as a matter of law, (2) violated his constitutional right to due process of law and (3) violated his right to cross-examine witnesses. We reverse the judgment of the trial court.

The following facts are necessary to resolve this appeal. On June 13,1988, the defendant pleaded guilty to assault in the third degree in violation of General Statutes § 53a-61. He received a suspended sentence and was placed on probation for one year. His probation was subject to a special condition that he have no contact with the victim of the assault. During the probationary period, the defendant was arrested twice for allegedly assaulting the victim. Following the first arrest, the defendant’s probation officer, Sharon Rome, filed a motion for revocation of probation that cited as the reasons a new conviction and a violation of the special condition that the defendant have no contact with the victim. Following the second arrest, Rome filed a substitute motion, citing as the reason the defendant’s “subsequent arrests.”

At the commencement of the revocation hearing, the defendant requested, “in the nature of an oral bill of particulars,” that he be informed of the specific manner in which he violated his probation. The state’s attorney responded orally that the ground for revocation was the violation of the “specific conditions of probation . . . that he keep away from the [victim]. The subsequent arrests, all three of them, were specific arrests that have to do with the victim and the person . . . whom he was ordered to stay away from and not have any contact.” Prior to closing arguments, the state again claimed that it “has sought violation of probation based on the special condition of probation that [the defendant] have no contact with the victim in this case.”

Rome was the only witness who testified at the hearing. Through Rome, the state introduced two police incident reports relating to the defendant’s arrests. Defense counsel repeatedly objected to the admission of the reports on the basis that they were hearsay. Although Rome testified that she had not personally observed the defendant’s conduct, she narrated the allegations set forth in the reports. She explained that the bases for initiating the revocation proceeding were the police reports and a telephone conversation with the victim, whom she had never met. The court sustained the defendant’s hearsay objection to the telephone call and, therefore, did not permit Rome to testify concerning the contents of her conversation with the victim.

No further evidence was offered by either party. The court found that the defendant had violated his probation and reinstated the original sentence. As expressed in its memorandum of decision, the court appeared to have found that the defendant violated not only the no contact provision, but also the provision that he not violate any criminal law of the United States, notwithstanding that he was not charged with the latter as a probation violation. Because a defendant cannot be found in violation of probation on grounds other than those with which he is charged, we will disregard the second finding.

In his first claim, the defendant contends that the evidence produced at the hearing was insufficient as a matter of law because it consisted entirely of unsupported and unreliable hearsay evidence. We agree that the evidence was insufficient to establish a probation violation.

A subsequent arrest, by itself, is not a sufficient basis on which to find a violation of probation. Although there need not be proof of unlawful conduct sufficient to sustain a criminal conviction; Roberson v. Connecticut, 501 F.2d 305, 308 (2d Cir. 1974); there must be proof that the “defendant’s conduct constituted an act sufficient to support a revocation of probation . . . .” State v. Smith, 18 Conn. App. 368, 370 n.1, 558 A.2d 257 (1989); Payne v. Robinson, 10 Conn. App. 395, 402-403, 523 A.2d 917 (1987), aff'd, 207 Conn. 565, 541 A.2d 504, cert. denied, 488 U.S. 898, 109 S. Ct. 242, 102 L. Ed. 2d 230 (1988).

In the present case, because the revocation was not based on a subsequent conviction, the issue is whether the state presented sufficient evidence to show that the defendant’s conduct, leading to the arrests, constituted an act sufficient to support the revocation. The standard of proof to be applied by the trial court in deciding whether a probationer has violated a condition of probation is the reasonable satisfaction standard, wherein the trial court must have a rational belief that the “evidence is adequate or sufficient to prove a violation.” State v. Davis, 29 Conn. App. 801, 811, 618 A.2d 557 (1993). “[0]ur review is limited to reviewing whether such a finding was clearly erroneous.” Id., 805.

A probation revocation hearing is not a stage of a criminal prosecution; Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973); State v. Wright, 24 Conn. App. 575, 580, 590 A.2d 486 (1991); but is a discrete statutory procedure to which many of the substantive and procedural rules of criminal law do not apply. Payne v. Robinson, supra, 207 Conn. 571.

General Statutes § 53a-32 (b) provides in pertinent part: “No such revocation [of probation] shall be ordered, except upon consideration of the whole record and unless [a] violation is established by reliable and probative evidence.” The only evidence offered by the state, over the defendant’s repeated hearsay objections, was the two police reports. These reports were admitted through the probation officer who had no independent knowledge of the material contained therein. She knew only that they were police reports pertaining to the defendant.

These reports were undisputably hearsay. In its brief, the state argues that the police reports qualified as business records under General Statutes § 52-180 and were therefore admissible. This contention is invalid for two reasons. First, the reports were not offered or admitted as business records. An appellant is entitled to review of claims on appeal only on the basis that that evidence was admitted in the trial court. See State v. Braman, 191 Conn. 670, 684-85, 469 A.2d 760 (1983). Second, the necessary foundation for admission was not provided. The state offered no testimony that (1) the police reports were made in the regular course of police business, (2) it was the regular course of police business to make the reports and (3) the reports were made at the time of the arrest or within a reasonable time thereafter. See Bell Food Services, Inc. v. Sherbacow, 217 Conn. 476, 485, 586 A.2d 1157 (1991). The probation officer did not, and in all probability could not, testify to these requirements. The reports, therefore, are hearsay and do not qualify for admission as evidence under any established exception to the hearsay rule.

The state relies on State v. White, 169 Conn. 223, 239-40, 363 A.2d 143, cert. denied, 423 U.S. 1025, 96 S. Ct. 469, 46 L. Ed. 2d 399 (1975), for the proposition that hearsay evidence is admissible in probation violation proceedings. The White court recognized that “General Statutes § 53a-32 apparently contemplates use of hearsay testimony ... so long as it is not unsupported and is reliable, as the evidence was here.” (Emphasis added.) Id. The final five words of this quotation, however, are significant and were omitted in the state’s quotation from the White decision. It is those words that distinguish White from the present case.

The statement in White was dicta because the issue before that court was the admissibility of hearsay evidence at a preliminary probable cause hearing held within the probation department. The White court dicta, however, implied that its conclusions for the preliminary hearing would apply to the final hearing held in court. White is the only Connecticut case discussing preliminary probation violation hearings. We have since determined that such preliminary hearings are not required under our law. State v. Baxter, 19 Conn. App. 304, 317-19, 563 A.2d 721 (1989). By judicial gloss, however, the White statement has become the Connecticut law on hearsay admissibility in probation revocation hearings held in court. See Payne v. Robinson, supra, 207 Conn. 574; State v. Baxter, supra, 320.

Careful examination of White, however, discloses that it is limited and is not authority for admitting all hearsay evidence in all probation violation cases. The White court expressly “contemplate[d] use of hearsay testimony ... so long as it is not unsupported and is reliable, as the evidence was here.” (Emphasis added.) State v. White, supra.

Our analysis begins with a comparison of the White case with the present case. The alleged violation in White was the defendant’s departure from a residential drug rehabilitation program in violation of a special condition of probation that he remain there until released by its officials. At the preliminary hearing, the defendant’s probation officer, who had prepared the original presentence report, testified that he was familiar with the condition of the defendant’s sentence and that he was informed by officials of the drug rehabilitation program that the defendant left without permission. In his testimony, he referred to a letter from the resident director of the program, confirming the defendant’s unauthorized departure. Reference to this letter constituted the hearsay. In addition to the probation officer’s testimony, department records were also referred to at the hearing. Moreover, it was undisputed that the defendant was apprehended on an arrest warrant away from the rehabilitation facility. Upon reviewing the evidence, the hearing officer determined that there was probable cause that the defendant had violated the terms of his probation.

The record does not include a transcript of the testimony at the probable cause hearing. It includes only a brief report from the probation department that referred to hearsay material from the drug rehabilitation program. It is not possible to determine the extent of other evidence that may have been received to support this claimed hearsay at the preliminary probable cause hearing. We must infer, however, that there was other evidence because White held that hearsay is admissible on the condition that it is supported by other evidence in the case.

This contrasts with the present case in which the sole witness, the probation officer, testified that the basis for initiating the revocation proceedings was the two police reports. She had never met the victim, would not have been able to recognize her, had never seen the defendant in the presence of the victim and had no basis whatsoever upon which to judge the reliability or accuracy of the police reports. She conceded that she had no knowledge of the events and her testimony was limited to her having read the police reports. The trial court then, on the basis of only the probation officer’s hearsay testimony, and with no independent supporting evidence, admitted the two police reports into evidence and found the defendant in violation of probation.* ***

Pursuant to White, hearsay testimony is admissible only if it is supported by other evidence. Hearsay evidence cannot be the basis of probation revocation if it is wholly unsupported by corroborative evidence, as it was here. If, for example, the probation officer had been competent to testify from personal knowledge, it would have been a question of the trial court’s discretion as to whether there was sufficient support to allow the hearsay evidence.

General Statutes § 53a-32 was passed as part of No. 828 of the 1969 Public Acts, which created the Connecticut penal code. It is readily apparent from the commentary by the commission appointed to revise the criminal statutes and to adopt the penal code that § 53a-32 was carefully drafted so as to forestall the possibility of basing probation violations on unsupported hearsay. The commentators noted that “[bjecause the defendant’s continued freedom is likely to be at stake, and because the decision as to the violation may turn on conflicting sets of facts, the right to counsel, to cross-examine witnesses and to present evidence (which rights were often granted in practice anyway) are made clear. The language limiting revocation orders to those supported by ‘the whole record’ and ‘by reliable and probative evidence’ is an attempt to reach a middle ground between the requirement of a full trial-type hearing and allowing revocation simply upon what may be unsupported hearsay information in the probation officer’s report.” (Emphasis added.) Commission to Revise the Criminal Statutes, Penal Code Comments, Connecticut General Statutes (1969), pp. 16-17.

The trial court acknowledged that the two hearsay police reports were the only evidence before it and the state agreed. In view of the fact that the police reports were wholly unsupported hearsay, they should not have been admitted into evidence. Because the state conceded that its only evidence was hearsay and we have concluded as a matter of law that it should not have been admitted, there was no evidence to support a probation violation finding. Accordingly, the trial court could not have been reasonably satisfied that the defendant had violated a term of his probation and, therefore, its finding of a violation is clearly erroneous. When the evidence adduced at a probation revocation hearing is insufficient, the defendant is entitled to a judgment of acquittal. Payne v. Robinson, supra, 10 Conn. App.

We do not reach the defendant’s other claims.

The judgment is reversed and the case is remanded with direction to render judgment denying the motion for probation revocation.

In this opinion the other judges concurred.

       There does not appear to have been a new conviction.

       We know of no authority for an oral bill of particulars under these circumstances. See Practice Book §§ 812, 830 through 833.

       General Statutes § 52-180 (a) provides: “Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter.”

       The specific claim in State v. White, 169 Conn. 223, 239, 363 A.2d 143 (1975), was that “the hearing officer at the preliminary hearing improperly relied on hearsay evidence in determining there was probable cause that he had violated the terms of his probation.” (Emphasis added.)

        White established a two-prong test. The evidence must be both (1) supported and (2) reliable. Because we conclude that the defendant has not satisfied the first prong, we do not reach the second.

        State v. White, A-857 Rec. & Briefs, Position 3, Record pp. 6-7, May Term, 1975.

       Despite the White dicta suggesting that a defendant could be found in violation of probation on limited but supported hearsay, the actual probation violation finding was supported by substantial direct evidence. The defendant’s probation officer, Raymond Bykowski, testified that the defendant had been assigned to a treatment facility in Waterbury as the result of a court sentence. He further recounted that he had been notified by phone and later by letter that the defendant had left the facility. Francis Petrillo, senior coordinator and drug rehabilitation counselor at the facility, also testified. After stating that he remembered the defendant as a participant in the drug rehabilitation program, Petrillo pointed him out in the courtroom. Petrillo further testified that he recalled the defendant leaving the facility without permission shortly after the defendant had arrived.

       The trial court was not consistent in its hearsay evidence rulings. It is difficult to reconcile the ruling on admissibility of the police reports with the court’s ruling sustaining a hearsay objection to a question of what the victim may have said to the probation officer in a phone conversation.

       Addressing the state’s attorney, the trial court commented, “Isn’t it true that the only actual evidence in this particular case is the two police incident reports? There is no warrant that is in evidence. The warrant was marked for ID purposes only.” The state’s attorney replied in the affirmative.


source: Caselaw Access Project

author: Freedman, J.

license: Public Domain

text:
    Oakhill Associates v. Edward A. D’Amato, Sr., et al.
    (11098)
    Lavery, Freedman and Schaller, Js.
    Argued December 4, 1992 —
    decision released February 16, 1993

      Richard P. Weinstein, for the appellant (plaintiff).

      Richard C. Robinson, for the appellees (defendants).
   Freedman, J.

The plaintiff partnership, Oakhill Associates, appeals from the judgment rendered, after a trial to the court, for the defendant Edward A. D’Amato, Sr. (D’Amato), a member of the partnership, and the defendant D’Amato Construction Company. Oakhill’s four count complaint alleged a breach of contract, negligence, a breach of fiduciary duty and a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq., all arising out of a claim that the defendants charged excessive and unreasonable amounts for site development work performed for Oakhill. The trial court found the issues for the defendants after concluding that the plaintiff had not sustained its burden of proving the defendants’ charges to be excessive or unreasonable. We affirm the judgment of the trial court.

The plaintiff first challenges the factual findings of the trial court. The plaintiff argues that the trial court could not properly find that the defendants’ charges were not excessive. We are not persuaded.

“When the factual basis of the trial court’s decision is challenged on appeal, the role of this court is to determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. . . . The trier is the final judge of the credibility of witnesses and of the weight to be accorded their testimony. ... On appeal, the function of this court is limited solely to the determination of whether the decision of the trial court is clearly erroneous. . . . This court cannot find fact[s] or draw conclusions from primary facts found, but can only review such findings to determine whether they could have legally, logically and reasonably been found by the trier. . . .” (Citations omitted; internal quotation marks omitted.) R. Zemper & Associates v. Scozzafava, 28 Conn. App. 557, 560-61, 611 A.2d 449 (1992).

The trial court carefully reviewed the conflicting evidence regarding the work done by the defendants and the reasonable cost of the work involved. The court concluded that the plaintiff had failed to show that the defendants’ charges were excessive. After our own careful review of the trial transcript and the record and briefs on appeal, we believe that the trial court could reasonably and logically have concluded that the plaintiff failed to establish, by a preponderance of the evidence, that the defendants’ charges were improper. The plaintiffs challenge to the trial court’s finding that the defendants’ charges were not excessive or unreasonable is, therefore, without merit.

The plaintiff’s challenge to the trial court’s determination of liability with respect to the third count, alleging a breach of a fiduciary duty by the individual defendant, must also fail. The plaintiff argues correctly that the trial court improperly allocated the burden of proof on this issue by not shifting the burden to defendant D’Amato to prove his fair dealing with the partnership by clear and convincing evidence. See 59A Am. Jur. 2d, Partnership § 420; see also Dunham v. Dunham, 204 Conn. 303, 322-23, 528 A.2d 1123 (1987). Yet, that misallocation does not require the reversal of the trial court’s judgment on the third count under the circumstances of this case.

In an action alleging the breach of a fiduciary duty, although the burden will shift to the defendant to establish his freedom from liability by clear and convincing proof of his fair dealing, in all other respects the case proceeds as any other civil case. See Dunham v. Dunham, supra, 320; cf. Alaimo v. Royer, 188 Conn. 36, 40, 448 A.2d 207 (1982) (involving a claim of fraud). Thus, the burden remains with the plaintiff to prove every other element of its claim, including the fact of damage. Consequently, although the trial court misallocated the burden of proof on the liability aspect of the plaintiff’s claim of a breach of fiduciary duty, the trial court properly allocated the burden of proof on damages. That the trial court could misallocate the burden of proof with respect to an element of liability and still properly conclude that the plaintiff was not damaged is a function of the unique circumstances of this particular case. Here, the evidence probative of liability was the very same evidence related to damages. While the court was obligated to judge the evidence concerning the alleged breach of a fiduciary duty by shifting the burden to D’Amato to prove his fair dealing with the partnership by clear and convincing evidence, it was required to evaluate that evidence on the issue of damages by whether the plaintiff had met its burden by the less exacting preponderance of the evidence standard. As noted previously, the plaintiff failed to satisfy the trial court by a preponderance of the evidence that the defendants’ charges were excessive or unreasonable.

Under these circumstances, the misapplication of the burden of proof could not have affected the result. See, e.g., Evans v. Santoro, 6 Conn. App. 707, 712, 507 A.2d 1007 (1986). Any error was therefore harmless and affords no basis for disturbing the judgment.

The judgment is affirmed.

In this opinion the other judges concurred.


author: Landau, J.

text:
    State of Connecticut v. Dwain Charlton
    (11028)
    Dupont, C. J., Lavery and Landau, Js.

      Argued November 2, 1992 —
    decision released February 23, 1993

      Francis T. Mandanici, assistant public defender, for the appellant (defendant).

      James A. Killen, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David P. Gold, supervisory assistant state’s attorney, for the appellee (state).
   Landau, J.

The defendant appeals from the judgment of conviction, rendered after a trial to the jury, of assault in the first degree in violation of General Statutes § 53a-59 (a) (3). The defendant claims that the trial court improperly (1) denied his motions for a speedy trial, (2) limited his questioning of venirepersons during voir dire, (3) denied the defendant’s request for a specific instruction concerning the effect of alcohol and marihuana on a witness’ credibility, and (4) prohibited him from arguing, in his closing argument, that the jury could draw an adverse inference from the state’s failure to call an eyewitness to the crime. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On the morning of June 24,1990, the victim was attending a party at a friend’s house. The victim was accompanied by two friends, Tanya Phillips and Byron Campbell. Shortly before 4:30 a.m., the victim went to the bar to ask someone for a light for his marihuana cigarette. One of the persons he asked was the defendant’s girl friend, Catherine Hammie. He eventually obtained a light from a person named Kunta and returned to talk with his friends. The defendant went over to Hammie and asked her what the victim wanted. Hammie told the defendant that the victim had asked her for a light and to dance, but she refused. The defendant then bumped the victim, and an argument ensued. The defendant pulled out a handgun, but was restrained by Kunta. The defendant, however, got his hand free, raised the gun and shot the victim in the face. The defendant and Hammie then left the party. The bullet lodged against the victim’s spine, breaking his neck.

I

The defendant’s first claim is that the trial court improperly denied his motion for a speedy trial. We disagree.

The following additional facts are necessary to the resolution of this claim. The defendant was arrested on November 6, 1990. On November 21, 1990, the defendant filed seven pretrial motions, which were ruled on on November 29,1990. On December 4,1990, the defendant filed a motion for reduction of bond, which was denied on December 12,1990. On January 8, 1991, the defendant filed another motion for reduction of bond, which was denied on January 23, 1991. On January 25, 1991, the defendant filed nine pro se motions. These motions were scheduled for hearing on February 13,1991, but were not heard because the defendant was not present. On February 20,1991, the defendant withdrew these motions, but the withdrawal did not appear on the docket sheet. The defendant, on May 8, 1991, requested that these pro se motions be marked off. On May 21,1991, the defendant filed three additional motions. These were a motion to suppress, a motion for reduction of bond, and his first motion for a speedy trial. On May 29,1991, the motion to suppress was marked off and the motions for reduction of bond and a speedy trial were denied. On July 12, 1991, the defendant filed a motion to dismiss counsel, and a second motion for a speedy trial. On July 24, 1991, the motion to dismiss counsel was denied and the motion for a speedy trial was granted. Later that day, however, the court reconsidered the speedy trial motion and then denied it. The court reversed itself because it had not taken into account substantial excludable time due to the withdrawal of the January 25,1991 pro se motions that were not indicated on the docket sheet. The defendant filed additional motions to dismiss counsel and for a speedy trial, which were denied on August 7, 1991. On October 10, 1991, the defendant filed another motion for reduction of bond. On October 21,1991, the defendant again filed a motion for a speedy trial. There is nothing in the record to indicate that the trial court ruled on the motions filed on October 10 and October 21. Jury selection began on October 31, 1991, and evidence was first heard on November 6, 1991, exactly one year from the date of the defendant’s arrest.

The right to a speedy trial is guaranteed by the sixth amendment to the United States constitution, made applicable to the states through the fourteenth amendment. State v. Almgren, 12 Conn. App. 364, 368, 530 A.2d 1089 (1987). This right is also guaranteed in article first, § 8, of the Connecticut constitution. Id. The time limitations that govern this right are found in Practice Book § 956B. The defendant was arrested on November 6, 1990, and the information was filed on November 8, 1990. Therefore, the date on which calculation begins is November 9, 1990; Lamberti v. Stamford, 131 Conn. 396, 397-98, 40 A.2d 190 (1944); and the earliest possible date for the filing of the motion to dismiss for lack of a speedy trial, without taking into consideration the excludable time periods, is July 8, 1991. Id. The periods of time that are excludable from this calculation are found in Practice Book § 956C.

The defendant argues that only the days on which the actual hearings take place are excluded under this section. Our cases clearly demonstrate otherwise. In State v. Ortiz, 14 Conn. App. 493, 499, 542 A.2d 734 (1988), we unequivocally held that “there is nothing in the rules that limits delays resulting from a hearing to the hearing time itself.” The computation period will begin on the day following the filing of the motion; see Lamberti v. Stamford, supra; and will run until and including the day the motion is heard.

The defendant further argues that the time delays resulting from the defendant’s “garden-variety,” pro se motions are not excluded. This argument is equally unavailing. “The rules of statutory construction apply with equal force to Practice Book rules. ... A basic tenet of statutory construction is that when a statute [or rule of practice] is clear and unambiguous, there is no room for construction.” (Internal quotation marks omitted.) Infante v. Porath, 29 Conn. App. 465, 467, 615 A.2d 1073 (1992). The words contained in § 956C (a) (4) are clear and unambiguous. It states that the “delay resulting from the hearing on any pretrial motion” is excluded. (Emphasis added.) Therefore, we include the pro se motions in the calculation of excludable time.

As noted earlier, without considering the excludable time, the earliest that the defendant could have filed a motion to dismiss for lack of a speedy trial is July 8, 1991. We calculate the excludable time to arrive at the actual date when a motion to dismiss would be timely as follows: The defendant’s motions filed November 21, 1990, and acted on November 29,1990 — eight days; the defendant’s motions filed December 4,1990, and acted on December 12, 1990 — eight days; the defendant’s motions filed January 8,1991, and acted on January 23, 1991 — fifteen days; the defendant’s pro se motions filed January 25,1991, and withdrawn February 20,1991— twenty-six days; the defendant’s pro se motions filed May 21, 1991, and either withdrawn or acted on May 29, 1991 — eight days; the defendant’s pro se motions filed July 12, 1991, and acted on July 24, 1991 — twelve days; and the defendant’s pro se motions filed July 29,1991, and acted on August 7,1991 — nine days. Therefore, the total excludable time amounts to eighty-six days. Adding this time to the July 8, 1991 date brings us to October 2, 1991, which is the earliest day on which a motion to dismiss would be timely. Therefore, the trial court properly denied the defendant’s speedy trial motions of May 21, 1991, July 12, 1991, and July 29, 1991. The defendant’s motion for a speedy trial filed on October 21, 1991, was timely. Jury selection in this case began on October 31,1991, and evidence was heard beginning on November 6, 1991. Therefore, the trial was commenced within the thirty days required under § 956D. The defendant’s claims, therefore, are without merit.

II

The defendant next claims that the trial court improperly limited his questioning of potential jurors on voir dire. We do not agree.

Before voir dire, the defendant proposed that he be allowed to ask potential jurors “whether they are more inclined to find someone guilty as compared to not guilty.” The trial court stated that: “No, that could not, given the amount of information that they have, would not present any type of information. . . . My ruling is based on the fact that you could not intelligently ask that question in a vacuum.” The defendant properly excepted.

“The right to a voir dire examination of each prospective juror in a criminal action is provided by § 54-82f of the General Statutes. This right was established as a constitutional one in 1972 by including in article IV of the amendments to the state constitution the provision that ‘[t]he right to question each juror individually by counsel shall be inviolate.’ ” State v. Smith, 222 Conn. 1, 6, 608 A.2d 63, cert. denied, U.S. , 113 S. Ct. 383, 121 L. Ed. 2d 293 (1992). The trial court is vested with broad discretion to determine the extent and form of the voir dire examination. Id.; State v. Hernandez, 204 Conn. 377, 381, 528 A.2d 794 (1987). “The exercise of the court’s discretion, however, must be tempered to comport with the goals of the voir dire examination. We have recognized that the purpose of examining members of the venire is twofold: first, to provide information upon which the trial court may decide which prospective jurors, if any, should be excused for cause; and second, to provide information to counsel which may aid them in the exercise of their right to peremptory challenge. . . . ‘[T]he court should grant such latitude as is reasonably necessary to fairly accomplish the purposes of the voir dire. Clearly, therefore, if there is any likelihood that some prejudice is in the juror’s mind which will even subconsciously affect his decision of the case, the party who may be adversely affected should be permitted questions designed to uncover that prejudice. This is particularly true with reference to the defendant in a criminal case.’ ” (Citations omitted.) State v. Dolphin, 203 Conn. 506, 512, 525 A.2d 509 (1987). We will not disturb a trial court’s ruling unless the court has clearly abused its discretion such that prejudice to one of the parties has resulted. State v. Smith, supra, 6-7; State v. Dahlgren, 200 Conn. 586, 601, 512 A.2d 906 (1986).

Contrary to the defendant’s claim, this case is very similar to Smith. In Smith, the defendant attempted to ask the same question of jurors and the trial court did not allow it. In that case, however, the trial court suggested ways in which the defendant could rephrase the question that would make it unobjectionable. The defendant here seems to suggest that the trial court’s failure to suggest ways to rephrase the question prevented him from a meaningful opportunity to inquire into a prospective juror’s predisposition to convict. We cannot impose on a trial court the burden of suggesting to parties how they should conduct their cases. Furthermore, the record does not support the defendant’s claim that he did not have a meaningful opportunity to delve into the predispositions of jurors. “[I]n determining whether members of the venire were predisposed to convict his client, defense counsel [had an opportunity to consider] the answers he had received to questions about the presumption of innocence and the state’s burden of proof beyond a reasonable doubt, which the court did not restrict in any way.” State v. Smith, supra, 9 n.7. Indeed, the defendant inquired as to the possible predispositions of the jurors in great detail and had sufficient information to aid him in the exercise of his right of peremptory challenge. Therefore, the defendant’s claim is meritless.

Ill

The defendant next claims that the trial court improperly denied his request for a specific instruction concerning the effect of alcohol and marihuana on a witness’ credibility. We disagree.

In this case, the defendant argues generally that “where there is evidentiary support for specific instructions regarding credibility factors, the court is obligated upon proper request to include those factors in its instructions.” State v. Mancinone, 15 Conn. App. 251, 280, 545 A.2d 1131, cert. denied, 209 Conn. 818, 551 A.2d 757 (1988), cert. denied, 489 U.S. 1017, 109 S. Ct. 1132, 103 L. Ed. 2d 194 (1989). As we held in Mancinone, we disagree with that premise. “Whether jury instructions on credibility should specifically address any of the factors urged here by the defendant is a determination best left to the discretion of the trial court, and the refusal to give such an instruction is erroneous only if, under all the circumstances of the case, it was an abuse of discretion.” Id. We find no abuse of discretion. We have reviewed the court’s charge on the credibility of witnesses and, considering the instruction in its entirety, “without critical dissection, and from the standpoint of whether it gave adequate guidance to the jury in reaching a proper verdict ... we conclude that the instruction sufficiently covered the issue of credibility of witnesses, and that the failure of the trial court to address specifically [the effect of marihuana and alcohol on the credibility of witnesses] was not an abuse of discretion.” (Citation omitted.) Id., 282.

IV

The defendant’s final claim is that the court improperly prohibited him from presenting a closing argument that drew attention to the fact that the state failed to call an eyewitness to the crime. We do not agree.

The missing witness rule was stated in Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960). That rule provides that “[t]he failure of a party to produce a witness who is in his power to produce and who would naturally have been produced by him, permits the inference that the evidence of the witness would be unfavorable to the party’s cause.” Id., 675. Two requirements must be fulfilled before a party is entitled to a Secondino charge: the witness must be available, and he must be a witness whom the party would naturally produce. Id.; see State v. Anderson, 212 Conn. 31, 41, 561 A.2d 897 (1989). “To take advantage of this rule permitting an adverse inference, the party claiming the benefit must show that he is entitled to it. . . . When a witness is equally available to both parties no inference unfavorable to either party may be drawn.” State v. Rosa, 170 Conn. 417, 431, 365 A.2d 1135, cert. denied, 429 U.S. 845, 97 S. Ct. 126, 50 L. Ed. 2d 116 (1976).

In State v. Rosa, supra, our Supreme Court held that where the defendant could not show that he is entitled to benefit of the rule, he is not entitled to the requested charge or “an opportunity to argue to the jury that an unfavorable inference may be drawn from the failure of the state to produce [the] witness.” Id.

In this case, the defendant did not request a Secondino instruction from the trial court. Indeed, the defendant conceded that he “probably didn’t meet the standard for a [Secondino] instruction.” Nevertheless, the defendant argues that he should be allowed to argue a “watered-down” version in his closing argument. This argument has no merit. The standards of the Secondino charge are clear. Unless the party fulfills the requirements of a Seeondino charge; see State v. Anderson, supra; he will not be allowed to argue it to the jury in any form, full or “watered-down.”

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-59 (a) provides in pertinent part: “A person is guilty of assault in the first degree when ... (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person . . .

       These motions included motions (1) to suppress evidence, (2) for advance notice and access regarding testing, (3) to produce photographs, (4) for disclosure of uncharged misconduct, (5) to dismiss, (6) to limit impeachment of the defendant, (7) for copy of information, (8) for bill of particulars, and (9) to suppress identifications.

       Practice Book § 956B (b) provides in pertinent part: “The trial of such defendant shall commence within eight months from the filing of the information or from the date of the arrest, whichever is later, if the following conditions are met:
      “(1) the defendant has been continuously incarcerated in a correctional institution of this state pending trial for such offense; and
      “(2) the defendant is not subject to the provisions of Gen. Stat. § 54-82c. ...”

       Practice Book § 956C provides in pertinent part: “The following periods of time shall be excluded in computing the time within which the trial of a defendant charged by information with a criminal offense must commence pursuant to Sec. 956B:
      “(a) Any period of delay resulting from other proceedings concerning the defendant, including but not limited to . . .
      “(4) delay resulting from the hearing on any pretrial motion . . . .”

       We are not unaware of cases in which our Supreme Court has held that the word “any” has a diversity of meanings. Cf. Muller v. Town Plan & Zoning Commission, 145 Conn. 325, 142 A.2d 524 (1958).

       The docket sheet does not indicate that these motions were actually withdrawn. The docket sheet does indicate that these motions were marked off on May 8,1991. Regardless, for the computation of the excludable time in this case, we will use the shorter time period.

       Practice Book § 956D provides: “If the defendant is not brought to trial within the applicable time limit set forth in Secs. 956B and 956C, and a trial is not commenced within thirty days of the filing of a motion for speedy trial by the defendant at any time after such time limit has passed, the information shall be dismissed with prejudice on motion of the defendant filed after the expiration of such thirty day period. Failure of the defendant to file a motion to dismiss prior to the commencement of trial shall constitute a waiver of the right to dismissal under these rules.”

       The record contains only the questioning of the first three venirepersons. It is the defendant’s burden to ensure that an adequate record exists for appellate review. State v. Hoeplinger, 27 Conn. App. 643, 609 A.2d 1015, cert. denied, 223 Conn. 912, 612 A.2d 59 (1992). The limited record that does exist regarding the voir dire shows that the defendant had a meaningful opportunity to question jurors about a possible predisposition to convict.

       The record indicates that the trial court accorded the defendant great latitude in this area. On the day of the jury instruction, the court allowed the defendant to reopen his case to present evidence of the effects of marihuana and alcohol. The court stated to the jury that it was “going to allow at the defendant’s request their case to be reopened and one exhibit to be introduced. . . . It’s defendant’s Exhibit Number 1, it’s the Diagnostic and Statistical Manual of Mental Disorders. There is no mental disorder claimed here, but a portion of that learned text, and the DSM-III-R is recognized as a learned text, it’s used by doctors who deal with the effect of alcohol on a person and also the effect of marihuana on a person. It’s probably within your common knowledge, but Mr. Mandanici has asked me to allow this to be presented as an exhibit so that he could argue from this what he feels the marihuana and alcohol, what role they played in this case. So, you could attach whatever weight you want to this, it’s offered solely for the purpose of explaining to you something you already know, the effect of marihuana and the effect of alcohol on a person. He is going to argue from that. The weight you give this, the importance you give this is completely and totally up to you.”

       The court charged as follows: “You heard the lawyers talk a lot about the credibility of witnesses. Let me say this about that subject. In deciding what the facts are, you must consider all the evidence in doing this. You must decide which testimony to believe, and which testimony not to believe. You may disbelieve all or any part of any witness’ testimony. In making that decision, you may take into account a number of factors including the following, and I’ll give you a list of six factors that bear on the credibility:
      “One, was the witness able to see or hear or know the things about which that witness testified?
      “Two, how well was the witness able to recall and describe those things?
      “Three, what was the witness’ manner while testifying?
      “Four, did the witness have an interest in the outcome of this case or any bias or prejudice concerning any party or any matter involved in the case?
      “Five, how reasonable was the witness’ testimony considered in light of all the evidence in the case?
      “Six, was the witness’ testimony contradicted by what that witness has said or done at another time or by the testimony of other witnesses or by other evidence. If you should think that a witness has deliberately testified falsely in some respects, you should carefully consider whether you should rely upon any of that witness’ testimony.
      “In deciding whether or not to believe a witness, keep in mind that people sometimes forget things. You need to consider, therefore, whether a contradiction is an innocent lapse of memory or an intentional falsehood, and that may depend on whether it has to do with an important fact or only with a small detail. These are some of the factors you may consider in deciding whether to believe testimony.”

       This is the so-called Secondino or “missing witness” inference.


author: Dupont, C. J.

text:
    John W. Cox v. Colonial Mobile Home Park, Inc.
    (10702)
    Dupont, C. J., Foti and Lavery, Js.
    Argued September 28, 1992 —
    decision released February 4, 1993

      Eric C. Hard, with whom, on the brief, was George Sherman, for the appellant (defendant).

      Philip L. Steele, for the appellee (plaintiff).
   Dupont, C. J.

The principal issue to be decided in this declaratory judgment action is whether a rule promulgated by the defendant prohibiting the use of motorcycles within the confines of its mobile home park exceeds the authority given to mobile home park owners to regulate such activities under General Statutes § 21-70 (d). The trial court determined that the rule is unenforceable because it does not comport with the requirements of that statute. Although the court recognized that owners of mobile home parks can regulate motor vehicle operation within a park, it held that the rule could not stand because it was not reasonably related to the purpose for which it was adopted, namely, the promotion of the safety of the residents and the prevention of excessive noise. The court, therefore, granted the plaintiff the requested declaratory relief, but did not award him any monetary damages.* * The defendant appeals from the trial court’s judgment, claiming that the rule does comport with the requirements of § 21-70 (d). We affirm the decision of the trial court.

The defendant operates a mobile home park consisting of 188 mobile homes. The park has a main entrance situated along a public roadway, but access to almost all of the individual mobile homes is provided by way of several private roads within the park. In 1958, the defendant promulgated rule nine, prohibiting the operation of motorcycles within the park. Although the rule prohibits the operation of motorcycles within the park, park residents are permitted to own motorcycles, and the defendant has provided an area at the park’s entrance where they may be parked. Other motor vehicles, however, may be operated within the park, as long as their speed does not exceed ten miles per hour. At trial, the defendant’s general manager testified that the purpose of rule nine was to protect the residents of the park from the increased hazards and noise produced by motorcycles and to reduce the problem of enforcing speed limits within the park. Rule nine is included in the standard rental agreement that all tenants are required to sign upon moving into the park.

The plaintiff is a resident of the park and a motorcycle owner. The plaintiffs home is located approximately one quarter of a mile from the entrance of the park. Because the plaintiff chooses not to park his motorcycle in the area provided near the park entrance, he must push his motorcycle between his home and the park’s entrance each time he wants to use it so as not to violate the provisions of rule nine. The plaintiff brought suit against the defendant seeking damages and a declaratory judgment that rule nine violates § 21-70 (d) because it is overbroad and not reasonably related to the promotion of the residents’ convenience, safety or welfare. The plaintiff also claimed that rule nine violates § 21-70 (d) because it does not apply to all residents fairly, as it permits the owners of certain vehicles to use park roads while denying this privilege to owners of other types of vehicles.

The defendant counters that because rule nine does not regulate an area that § 21-70 (d) was intended to address, it is permissible, notwithstanding the fact that it might violate the specific language of § 21-70 (d). Additionally, the defendant contends that, in any event, rule nine does, in fact, comport with the express provisions of § 21-70 (d). We reject both of these arguments.

The defendant argues that the purposes of § 21-70 (d) are the prevention of economic abuse of tenants by mobile home park owners and the prevention of poor park conditions and health hazards. The defendant claims that the legislative history of the statute indicates that mobile home park owners could continue, after the passage of the statute, to adopt rules concerning use and occupancy as long as the rules were not violative of these purposes. The defendant claims that a rule banning the operation of motorcycles in a mobile home park is a permissible rule within the scope of the legislation because the rule is not aimed at one of the above cited abuses.

It is well settled that “[i]f the words of a statute are clear, the duty of a reviewing court is to apply the legislature’s directive since where the wording is plain, courts will not speculate as to any supposed intention because the question before a court then is not what the legislature actually intended, but what intention it expressed by the words that it used.” Kilduff v. Adams, Inc., 219 Conn. 314, 336, 593 A.2d 478 (1991); Collins v. Goldberg, 28 Conn. App. 733, 737, 611 A.2d 938 (1992). The words employed by the legislature in § 21-70 (d) are clear and unambiguous and therefore we will not look behind the statute’s words in an effort to ascertain the theoretical limits of the provision’s scope. We thus reject the defendant’s argument that § 21-70 (d) does not make rule nine unenforceable because § 21-70 (d) is concerned only with restrictions pertaining to economic abuse, poor park maintenance and health hazards.

As the trial court correctly noted, “[t]he operation of mobile home parks is not a totally private concern — it is subject to some governmental overview.” This overview comes in the form of § 21-70 (d). Under § 21-70 (d), the owner of a mobile home park may adopt any rule affecting a resident’s use or occupancy of the premises, but the rule will be enforceable only if it complies with all of the five enumerated requirements of the statute. The plaintiff concedes that rule nine complies with the last two requirements of § 21-70 (d). Thus, we must examine rule nine in conjunction with the provisions of § 21-70 (d) (1), (2) and (3) to determine whether the rule complies with these requirements. The rule is unenforceable if it fails to comport with any one of these three subdivisions.

General Statutes § 21-70 (d) (1) and (2) must be analyzed in conjunction with each other because they are interrelated. Subdivision (2) provides that the rule in question must be “reasonably related to the purpose for which it is adopted.” Subdivision (1) establishes that the only permissible purpose of a rule, “is to promote the convenience, safety or welfare of the residents . . . .” Therefore, regardless of any reasonable relationship between a rule and its purpose, the rule must first be determined to have been promulgated for the promotion of convenience, safety or welfare of the park’s residents. At trial, the general manager of the park testified that rule nine was enacted for safety and noise reasons. The avowed purpose of the rule is thus permissible under subdivision (1). The question then becomes whether there is a rational relationship between rule nine and the convenience, welfare or safety of the park’s residents.

We conclude that rule nine does not comply with subdivision (2) of § 21-70 (d), because it is not “reasonably related to the purpose for which it is adopted.” Section 21-70 (d) (2). The defendant advanced only two reasons for the promulgation of rule nine, safety and noise. As the plaintiff correctly points out, the rule, on its face, does not address speed or noise but bans all motorcycles, regardless of how they are operated. The defendant argues that rule nine is reasonably related to the purpose for which it is adopted because “motorcycles are generally noisier than automobiles, and . . . motorcycles, because of their instability and the additional attention required of their operator, pose a prospective hazard in a mobile home park.”

The trial court stated that it received no credible evidence that the purpose of rule nine was related to the prevention of noise, speed or safety. Without such evidence, no rationale exists for banning the operation of all motorcycles on the ground that they are deleterious to the welfare or safety of the residents, while allowing the operation of all other motor vehicles, including vans, trucks or buses. Cf. Levine v. Police Commission, 28 Conn. App. 344, 360, 612 A.2d 787, cert. denied, 223 Conn. 923, 614 A.2d 923 (1992).

We agree with the trial court and courts in other jurisdictions that have held that the proper solution to any problem of motorcycles operating at excessive and unsafe speeds is to enforce the speed limits, not to place a blanket ban on the use of motorcycles. The Michigan Court of Appeals rejected a similar motorcycle ban premised on safety reasons in Great Lakes Motorcycle Dealers Assn., Inc. v. Detroit, 38 Mich. App. 564, 196 N.W.2d 787 (1972). In striking down a city ordinance that precluded the operation of motorcycles in certain areas of the city, premised on safety reasons, the court held: “Since the problems of excessive speed and noise are not problems which relate solely to the nature and manner of operation of motorcycles, it is unreasonable and arbitrary to deny the use of the public streets to motorcycles, and yet, allow automobiles to continue to use those streets. The proper solution to the problems of excessive speed and noise is the enforcement of the speed and noise laws and ordinances.” Id., 567; accord Springfield Park District v. Buckley, 140 Ill. App. 3d 524, 488 N.E.2d 1071 (1986); American Motorcyclist Assn. v. Park Commission, 412 Mass. 753, 592 N.E.2d 1314 (1992); Rogers v. Provincetown, 384 Mass. 179, 424 N.E.2d 239, 242 (1981); contra American Motorcyclist Assn. v. St. Louis, 622 S.W.2d 267 (Mo. App. 1981).

The defendant argues that the cases cited above are inapposite because they concern the interpretation of municipal regulations and the relationship between the public and government, rather than regulations promulgated by a private landlord that apply to its tenants. We agree with the trial court that the defendant’s argument “would be true if our legislature had not enacted Chapter 412. [Due to the enactment of Chapter 412, however,] mobile home park owners may only enact rules which meet certain guidelines. Thus [these] cases are relevant to this situation.” The rights of a mobile home park owner vis-a-vis his tenants are limited by the restrictions placed on that relationship by § 21-70 (d).

Although the cases we have cited pertain to municipal regulations and ordinances, they are analogous to the present case. For example, in American Motorcyclist Assn. v. Park Commission, supra, a town park commissioner promulgated a regulation banning the use of motorcycles on the nonpublic roads of the park. The regulation was promulgated in response “to complaints from citizens concerning the speed, noise, and congregation of motorcycles.” Id., 755. The commissioner had adopted the regulation pursuant to authority given to him by Massachusetts General Law ch. 90, § 18, providing that he could “prohibit the use of ways in a park by motor vehicles, may regulate their speed, and may make regulations governing the use and operation of motor vehicles on parkways.” Id., 754 n.5. The Supreme Judicial Court of Massachusetts invalidated the regulation on two grounds. The court found that the regulation was inconsistent with a state statute giving citizens a statutory right to operate a motor vehicle on the roads of the commonwealth. The court also found the regulation invalid because the commissioner had exceeded his statutory authority. “While G.L. c.90, § 18, gives park commissioners the right to regulate the use and operation of motor vehicles, or ban them entirely, it does not allow the selection of a particular class, e.g. motorcycles, for prohibition.” Id., 757.

Section 21-70 (d) similarly limits the authority of mobile home park owners to restrict the use of the private roads within its complex. Thus, while not controlling law, the cases cited are sufficiently analogous to the present case to be useful in determining if rule nine violates § 21-70 (d). We find persuasive those cases that have determined that a blanket ban on the use of motorcycles “sweeps too broadly and arbitrarily discriminates against motorcyclists who would otherwise operate their vehicles in compliance with regulations prohibiting speeding . . . .” Springfield Park District v. Buckley, supra, 531.

In arguing that the above cases are inapposite to the present case, the defendant urges us to follow the decision of the New York Court of Appeals in Miller v. Valley Forge Village, 43 N.Y.2d 626, 374 N.E.2d 118, 403 N.Y.S.2d 207 (1978). Miller involved a declaratory judgment action brought by tenants of a mobile home park challenging two park rules, one banning “For Sale” signs and the other restricting the installation of air conditioners. The tenants argued that these rules were unenforceable because they undermined the broad protections guaranteed by § 233 of New York’s Real Property Law. The Court of Appeals agreed with the conclusion of the trial court “that the rules were not only adopted by and uniformly applied to all tenants, but for the vast majority were actually an inducement to rent space from the defendant.” Id., 629. The court, however, also noted that no request to install a window air conditioner had ever been denied to any tenant, nor had any tenant’s attempt to sell his home ever been frustrated by the prohibition on “For Sale” signs.

In contrast, the rule here is an absolute ban on the use of motorcycles, rather than a limited restriction on their use. The trial court found that there was no credible evidence that motorcycles are noisier or more hazardous to the safety of residents than other motor vehicles, such as cars, vans and trucks, which are permitted within the park. We therefore find more persuasive the conclusion of the dissent in Miller. “While it is recognized that a noisy air conditioner may disturb the relative peace and tranquility attendant to the suburban lifestyle, [the rule] unwarrantedly presumes the existence of a nuisance and attempts its abatement before it is shown to exist. Action taken which has no foundation in fact or reason is, by definition, arbitrary and capricious.” Id., 632.

We therefore conclude that rule nine is unenforceable because it is not “reasonably related to the purpose for which it is adopted,” as required by General Statutes § 21-70 (d) (2). We need not examine § 21-70 (d) (3) because the rule is unenforceable if any subdivision is not satisfied.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 21-70 (d), formerly part of General Statutes (Rev. to 1991) § 21-70 (b), applies to owners of mobile home parks and provides: “An owner, from time to time, may adopt a rule or regulation, however described, concerning the resident’s use and occupancy of the premises. Such rule or regulation shall be enforceable against the resident only if (1) the purpose of the rule or regulation is to promote the convenience, safety or welfare of the residents, preserve the owner’s property from abusive use or make a fair distribution of services and facilities held out for the residents generally; (2) such rule or regulation is reasonably related to the purpose for which it is adopted; (3) such rule or regulation applies to all residents on the premises in a fair manner, provided reasonable exemptions may be made for good cause; (4) such rule or regulation is sufficiently explicit in its prohibition, direction or limitation of the resident’s conduct to fairly inform him of what he shall or shall not do to comply, and (5) the resident has written notice of such rule or regulation at the time he enters into the rental agreement or when such rule or regulation is adopted. A rule or regulation having the effect of substantially modifying the terms of a rental agreement previously entered into by a resident shall not apply to such rental agreement without the written consent of the resident.”

       The defendant claims that the trial court improperly held that the rule was unenforceable because it had not been filed with the department of consumer protection as required by General Statutes § 21-70 (e) (formerly § 21-70 [c]). A close reading of the trial court’s memorandum of decision reveals that the trial court did not conclude that the rule was ineffective on the basis of § 21-70 (e), although it did cite Eamiello v. Liberty Mobile Home Sales, Inc., 208 Conn. 620, 546 A.2d 805 (1988), appeal dismissed, 489 U.S. 1002, 109 S. Ct. 1104, 103 L. Ed. 2d 169 (1989). Eamiello recognized that, in accord with § 21-70 (c) (now § 21-70 [e]), no rule or regulation promulgated by a mobile home park owner concerning a resident’s use and occupancy of the premises, other than a change in rent, shall be effective until it is filed with the department of consumer protection. Id., 633.
      The defendant further argues that the trial court incorrectly applied the doctrine of preemption in determining that the rule was invalid. We agree. The rule was not promulgated by a governmental body that is inferior to the state legislature and does not intrude on the state’s ability to govern the speed or noise of motorcycles. See Helicopter Associates, Inc. v. Stamford, 201 Conn. 700, 705, 519 A.2d 49 (1986). Thus, the doctrine of preemption is not applicable. The judgment of the trial court, however, did not rest on the application of the doctrine.

       The defendant claims that the trial court improperly placed the burden of proof on the defendant to establish the validity of the rule, rather than placing the burden on the plaintiff to establish the invalidity of the rule. We find this claim to be without merit, as the trial court expressly stated in its memorandum of decision: “Challenging a regulation is not an easy task. The burden is clearly on the plaintiff.”

       Rule nine provides that “[mjotorcycles of a tenant shall be allowed to be parked on their lot provided the motor is kept off and it is walked to and from your lot to the entrance drive. Your guest with a motorcycle must park it at the end of the entrance drive and walk to your lot. Starting of the motor vehicle to test or actual operation in the park is prohibited and the park can bar your keeping the motorcycle in the park.”

       The defendant sought to introduce into evidence a petition, signed by park residents, that stated that they were in favor of the prohibition on the operation of motorcycles within the park. The petition, however, was not marked as an exhibit for identification and, therefore, we need not consider its admissibility.

       Although subdivision (1) also contains two other permissible purposes, namely, to “preserve the owner’s property from abusive use or [to] make a fair distribution of services and facilities held out for the residents generally,” as the trial court correctly observed, this case is not concerned with these two purposes.

       The testimony was as follows: “The reason is our roads are private roads, not public right-of-way. We have a speed limit of ten miles an hour which is very difficult to enforce, particularly with existing residents as well as their guests and we do not feel the addition of motorcycles which have a tendency to go faster than passenger cars, being allowed on our roads. If — if we are forced to allow them, it is not just allowing Mr. Cox’s motorcycle, it’s allowing any and all motorcycles and therefore we would increase hazards on our roads. . . .” Noise was later cited as an additional reason for the adoption of rule nine.

       The regulation at issue provided in relevant part: “No person shall operate any motorized two wheeled cycle, such as a moped or motorcycle, on the roadways and/or within D.W. Field Park.’ ’ American Motorcyclist Assn. v. Park Commission, 412 Mass. 753, 753 n.2, 592 N.E.2d 1314 (1992).

       At the time of the action in Miller, New York Real Property Law § 233 (f) (3) (e) (now § 233 [i] [1] and [2]) provided in relevant part: “No mobile home park owner or operator shall deny any mobile home tenant the right to sell his mobile home [and] . . . shall not exact a commission or fee . . . unless the mobile home park owner or operator has acted as agent for the mobile home owner in the sale pursuant to a written contract.” See Miller v. Valley Forge Village, 43 N.Y.2d 626, 630, 374 N.E.2d 118, 403 N.Y.S.2d 207 (1978).
      New York Real Property Law § 233 (f) (3) (b) provided that park owners were forbidden from “restricting] the installation . . . of any [electric or gas] appliance.” See Miller v. Valley Forge Village, supra, 629-30. This section was repealed. L.1984, c. 910, § 1, eff. Jan. 1, 1985.


author: O’Connell, J.

text:
    In re Jose M.

    (10975)
    Dupont, C. J., O’Connell and Lavery, Js.

      Argued December 2, 1992 —
    decision released February 23, 1993

      Ramona S. Carlow, special public defender, for the appellant (respondent).

      James A. Kitten, assistant state’s attorney, with whom, on the brief, were Francis J. Carino, chief state’s advocate, and John H. Kearney, state’s advocate, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 4166B.2, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   O’Connell, J.

The respondent appeals from an order of the Superior Court for Juvenile Matters at Waterbury transferring him to the regular criminal docket of the Superior Court pursuant to General Statutes § 46b-127. The respondent claims that (1) the court improperly admitted several hearsay statements into evidence and (2) the evidence was insufficient to support the trial court’s finding that there was probable cause to believe that he committed the crime of felony murder in violation of General Statutes § 53a-54c.* We affirm the order of the court transferring the respondent to the regular criminal docket.

The court found the following facts. On the evening of August 5, 1991, Jarrid Fiorello and Gerrod Ellis, after meeting with the respondent and two other acquaintances, Lennis and Vince, went by themselves to Fiorello’s house and talked about robbing the deliveryman for a Chinese restaurant. The robbery was to take place that night at a vacant apartment located at 134 Stonefield Drive in Waterbury. While at the house, Fiorello gave Ellis a rifle, belonging to Fiorello’s mother, to use in the robbery.

They left Fiorello’s house with the rifle and, prior to reaching the apartment, were rejoined by the respondent and Lennis. After arriving at the apartment, they walked to another apartment where Ellis telephoned a food order to the Chinese restaurant and requested delivery at 134 Stonefield Drive. Vince, who was at the apartment while the call was made, accompanied them back to the vacant apartment.

While they waited for the deliveryman, Ellis assigned tasks to be performed during the robbery. The respondent was to take the deliveryman’s car. In preparation for carrying out that assignment, the respondent went to the parking lot and waited. The deliveryman, Fai Yeung, arrived, exited his car and walked to the apartment with the order. Ellis confronted him and demanded the food and money. At the same time, the respondent attempted to take the car but was unsuccessful because the victim had apparently removed the keys. The victim started to run away but was shot by Ellis. The victim dropped the food and, in response to an order by Ellis, the respondent picked up the food and ran. The respondent brought the food to Ellis’ house where they had all gathered after the robbery. Ellis and Vince then ate the food.

A police officer was dispatched to the scene, in response to a report of a man bleeding, and found the victim in his car. Although still conscious, the victim was weak and his chin kept falling to his chest. The officer asked him where he had been stabbed. The victim responded that he was not stabbed, but shot. The victim further stated twice, “[T]hey said give me the food or you’re dead.” The victim passed out and was transported to the hospital by ambulance. The officer followed a trail of blood from the victim’s car to 134 Stonefield Drive. The victim died later that night at the hospital. The following day, the police recovered the rifle from Fiorello’s house. Forensic testing established that the victim had been killed by that rifle and no other.

I

The respondent first claims that the court improperly admitted several hearsay statements made by Fiorello. General Statutes § 46b-127 requires that the procedures applicable to General Statutes § 54-46a probable cause hearings, including the rules of evidence, apply to transfer hearings. Therefore, hearsay is not admissible at a § 46b-127 transfer hearing unless it comes within an exception to the hearsay rule.

A

The respondent argues that Fiorello’s responses to two consecutive questions, regarding his initial conversation with Ellis about the robbery, were inadmissible hearsay. Fiorello testified that he and Ellis had a conversation at Fiorello’s house. The state’s advocate asked Fiorello, “What were you talking about?” The respondent objected that the answer would “elicit a response from the witness as to what [Ellis] said.” The court overruled the objection after Fiorello responded affirmatively to the court’s inquiry as to whether he could answer with just the subject matter of the conversation. The respondent took an exception and Fiorello then replied, “Just talked about robbing somebody.”

The state’s advocate next asked, “Can you tell me when this robbery was to take place?” The respondent objected “unless [the question] calls for what the witness’ participation was in this particular conversation and not necessarily anything that Gerrod Ellis would say.” The state’s advocate rephrased the question, asking Fiorello, “[W]hat was your understanding of when this was to happen?” The respondent again objected, arguing that “a person’s understanding . . . is a backward way of saying, did you say something, or did Ger-rod Ellis say something. Clearly, if he wants to relate his side of the conversation then my objection should be overruled.” The court cautioned Fiorello to answer without repeating what Ellis had said. Fiorello responded that the robbery was to take place that night.

The respondent argues that under State v. Robinson, 213 Conn. 243, 567 A.2d 1173 (1989), Fiorello’s testimony was inadmissible hearsay because it implicitly relayed to the court the substance of Ellis’ words. In Robinson, a witness had begun to respond to the state’s inquiry concerning her actions on a particular night by stating, “ ‘Well, I had gotten a call and,’ ” when she was cautioned by the state not to repeat anything said during the telephone conversation. Id., 257. The witness went on to explain that she had taken certain actions that night partially because she was concerned about the victim’s safety. Id.

The state asked her why she was concerned and the defendant objected. Out of the presence of the jury, she explained that she was warned by the telephone caller that the victim was in danger. Id., 258. The trial court ruled that it would allow the testimony to show the witness’ state of mind. Although the witness did not repeat the words stated by the caller, her testimony presented to the jury, by implication, the substance of the telephone conversation.

The Supreme Court held that the admission of the testimony was improper. Although the court noted that the testimony would not have been hearsay if offered to show its effect on the hearer, it recognized that the testimony was not relevant for that purpose. The probative value of the testimony was in the truth of the matter asserted and, for that purpose, it was inadmissible hearsay. Similarly, here, if the substance of the conversation was offered to prove that Fiorello and Ellis planned the robbery and was relevant for that purpose, it would be inadmissible hearsay. The conversation was not repeated verbatim by Fiorello but, nevertheless, his testimony expressly conveyed the substance of the conversation. As such, Fiorello’s testimony, by implication, presented out-of-court statements that if offered as assertions or to prove the facts asserted would run afoul of the hearsay rule. See State v. Hull, 210 Conn. 481, 498, 566 A.2d 154 (1989).

The state argues, however, that the testimony was admissible, not as an assertion or for the truth of the matter asserted, but rather to explain Fiorello’s subsequent course of action. In particular, the state reasons that the probative value of the conversation was “in the fact that both [Fiorello’s and Ellis’] conduct and conversation at the house were in furtherance of a conspiracy that resulted in the crime for which the respondent is charged.” Despite the fact that the state did not expressly present this argument before the trial court, we are not “prevented from sustaining the ruling of a trial court on a basis other than that used.” State v. Lynch, 21 Conn. App. 386, 393, 574 A.2d 230, cert. denied, 216 Conn. 806, 580 A.2d 63 (1990).

The probative value of the testimony here is distinguishable from that in Robinson. In Robinson, the testimony informed the jury by implication that the telephone caller had warned the witness that the defendant intended to harm the victim. The testimony had probative value only as an assertion that the victim’s life was in danger. State v. Robinson, supra, 259. In the present case, the probative value of the conversation rested not in the truth of any assertions made by Fiorello or Ellis, but rather, in its status as an act in furtherance of an enterprise that the trial court found was entered into by the respondent and culminated in the felony murder for which the respondent is charged.

The testimony, therefore, is not hearsay. See State v. Gannon, 75 Conn. 206, 216, 52 A. 727 (1902) (out-of-court statements made in furtherance of the conspiracy by two of the three coconspirators were admissible, notwithstanding the coconspirator statement prerequisite that the state prove a prima facie case of conspiracy, because they were not declarations as to the existence of a conspiracy but were evidence of an agreement to accomplish the common purpose); State v. Tolisano, 136 Conn. 210, 214, 70 A.2d 118 (1949) (telephone calls were admissible as evidence that illegal bets had been placed, but not for the truth of any assertions made therein); State v. Watley, 195 Conn. 485, 490, 488 A.2d 1245 (1985) (the substance of a conversation is admissible nonhearsay to establish that the conversation had taken place); State v. Miller, 154 Conn. 622, 629, 228 A.2d 136 (1967) (testimony of the contents of a prior oral statement is admissible non-hearsay if offered through the person who made the statement and offered only to prove that it was made); State v. Mortoro, 157 Conn. 392, 396-97, 254 A.2d 574 (1969) (out-of-court statement was admissible as non-hearsay earwitness testimony to a verbal act); Gyro Brass Mfg. Corporation v. United Automobile Workers, 147 Conn. 76, 80, 157 A.2d 241 (1959) (testimony as to the content of a conversation was admissible as nonhearsay proof of an oral contract modification); State v. Lewtan, 5 Conn. App. 79, 84, 497 A.2d 60 (1985) (in harassment conviction, testimony as to obscene statements made by the defendant in telephone conversations was admissible nonhearsay to prove that the statements were made); see also, construing the Federal Rules of Evidence, United States v. Hathaway, 798 F.2d 902, 904-905 (6th Cir. 1986); United States v. Whitman, 771 F.2d 1348, 1351-52 (9th Cir. 1985); United States v. Conn, 769 F.2d 420, 422 (7th Cir. 1985); United States v. Gaines, 726 F. Sup. 1457 (E.D. Pa. 1989), aff'd, 902 F.2d 1562 (3d Cir.), cert. denied, 498 U.S. 844, 111 S. Ct. 128, 112 L. Ed. 2d 96 (1990). Accordingly, because the implied utterances possessed significance irrespective of the truth of the matter asserted, they were properly admitted.

B

The respondent next contends that Fiorello’s responses to two questions concerning Ellis’ assignment of jobs were inadmissible hearsay. The first challenged statement arose after Fiorello had testified that “Gerrod [Ellis] gave us things to do.” The state’s advocate then asked, “Okay, what was your thing to do?” The respondent objected, claiming that the question called for a response from Fiorello as to what Ellis had said. The court overruled the objection and Fiorello testified, “I was supposed to take the money.” The respondent took an exception to the ruling.

The second challenged statement arose ten questions later when the state’s advocate asked, “When [the victim] came, what happened?” Fiorello explained that the respondent was standing by the parking lot “because he was supposed to take the car.” Fiorello went on to state that after the deliveryman had arrived, the respondent checked the car but did not find any keys. Fiorello further asserted that after the deliveryman had been shot, the respondent picked up the food and ran away. The respondent neither objected to the question nor requested that the response be stricken.

The respondent argues on appeal that the testimony was inadmissible because (1) the court failed to make the preliminary determination required under the coconspirator exception and (2) there was an insufficient evidentiary foundation to permit the admission of these statements under that exception. To the extent that the respondent’s claim implicates Fiorello’s second statement, describing the respondent’s role in the robbery, it is not reviewable because the respondent did not object to the question or request that the answer be stricken. “Claims that were not distinctly raised at trial are not reviewable on appeal.” State v. Pickles, 28 Conn. App. 283, 286-87, 610 A.2d 716 (1992). Consequently, the testimony became part of the evidence and was properly considered by the fact finder. State v. Hickey, 23 Conn. App. 712, 718, 584 A.2d 473, cert. denied, 217 Conn. 809, 585 A.2d 1233, cert. denied, U.S. , 111 S. Ct. 2894, 115 L. Ed. 2d 1058 (1991).

Therefore, the only portion of the respondent’s claim that is reviewable is Fiorello’s first statement that his own job in the robbery was to take the money. We decline to reach this claim, however, because, even if improperly admitted, the testimony was not harmful. When, as is true here, an error in a criminal case does not involve a constitutional violation, “the burden is on the defendant to demonstrate the harmfulness of the court’s error. The defendant must show that it is more probable than.not that the erroneous action of the court affected the result. . . .” (Citations omitted; internal quotation marks omitted.) State v. Hoeplinger, 27 Conn. App. 643, 649, 609 A.2d 1015, cert. denied, 223 Conn. 912, 612 A.2d 59 (1992); see also State v. Ruth, 181 Conn. 187, 196-97, 435 A.2d 3 (1980).

The respondent cannot meet that burden. Fiorello’s assertion that he was to take the money has no bearing on whether the respondent took part in the robbery. The respondent’s involvement in the robbery was amply described by Fiorello’s testimony both before and after this particular statement. Because this statement is not probative of the respondent’s participation in the robbery, its admission could not have affected the result. Accordingly, the admission of the statement, whether improper or not, was not harmful.

C

The respondent finally asserts that the victim’s statement to the police officer that “they said give me the food or you’re dead” was not admissible as a dying declaration either because (1) dying declarations, although admissible at a criminal trial, are not admissible at a transfer hearing because the hearing is not a criminal prosecution, or (2) the state failed to establish that the victim was conscious of his impending death. We will affirm the trial court’s rulings unless there has been a clear abuse of discretion. State v. Paulino, 223 Conn. 461, 468, 613 A.2d 720 (1992).

A dying declaration is admissible in a criminal prosecution for the declarant’s death if “(1) the declarant was conscious of impending death and (2) the statement concerns the cause of death or the circumstances surrounding the death.” State v. Onofrio, 179 Conn. 23, 43-44, 425 A.2d 560 (1979). Although we agree that a § 46b-127 transfer hearing does not result in a determination of guilt; In re Ralph M., 211 Conn. 289, 308-309, 559 A.2d 179 (1989); we do not agree that the hearing is so far removed from a criminal prosecution that the dying declaration exception does not apply. Indeed, the transfer proceeding is the first step in the criminal prosecution of a juvenile as an adult.

Additionally, the express language of the statute further persuades us that a dying declaration is admissible at a transfer hearing. Following In re Ralph M., supra, which held that hearsay was admissible in a transfer hearing, the legislature amended § 46b-127 to incorporate, with certain exceptions not relevant here, the procedures of § 54-46a governing probable cause hearings for persons charged with crimes punishable by death or life imprisonment. Section 54-46a (b) provides that “[t]he court shall be confined to the rules of evidence. . . .” These include the rules governing the admissibility of hearsay. See, e.g., State v. Boyd, 214 Conn. 132, 570 A.2d 1125 (1990) (statement did not qualify as a statement against penal interest or as a statement admissible under the catch-all exception); State v. John, 210 Conn. 652, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989) (statements were admissible to show their effect on the hearer).

Because § 54-46a is part of title 54 which governs criminal procedure, it is evident that a hearsay rule that is limited to criminal prosecutions, such as the dying declaration exception, applies to a § 54-46a hearing. Consequently, because the procedures of § 54-46a have been incorporated into § 46b-127, the dying declaration exception to the hearsay rule is similarly applicable to § 46b-127 proceedings.

The defendant’s second premise, that the state failed to prove that the victim was conscious of his impending death, is likewise without merit. Although it is true that consciousness of death must be demonstrated, “[tjhere is no talismanic ritual of words that must be spoken by a dying declarant” to render the statements admissible. State v. Onofrio, supra, 45. “[T]he declarant’s consciousness of despair over impending death may be proved by the circumstances surrounding the declaration as well as by the statements themselves.” Id., 44-45; see annot., 53 A.L.R.3d 1196.

In the present case, the victim had been mortally wounded and had left a trail of blood from the robbery scene to his car. When the police officer spoke to the victim, he was bleeding severely and growing weaker. The victim could not keep his head up and was yelling in pain. The officer testified that the victim made the statement just seconds before passing out. There is no indication that the victim ever regained consciousness. Although there were no specific words spoken by the declarant to indicate his consciousness of despair over impending death, in light of the circumstances surrounding the declaration, we conclude that the court acted within its discretion in admitting the victim’s statement.

II

The respondent next claims that the evidence at the hearing did not support the trial court’s finding of probable cause. “On appeal, our function is to determine whether the trial court’s decision that probable cause existed was clearly erroneous.” In re Ernest B., 29 Conn. App. 573, 575, 617 A.2d 903 (1992); In re Keijam T., 221 Conn. 109, 116, 602 A.2d 967 (1992). “The quantum of evidence necessary to establish probable cause at a preliminary hearing is less than the quantum necessary to establish proof beyond a reasonable doubt at trial. ... In making its finding, the court had to determine whether the government’s evidence would warrant a person of reasonable caution to believe that the accused [had] committed the crime. . . . The quantum of evidence necessary to establish probable cause exceeds mere suspicion, but is substantially less than that required for conviction.” (Citations omitted; internal quotation marks omitted.) In re Keijam T., supra, 115-16. “Proof of probable cause is not as demanding as proof by a fair preponderance of the evidence. . . .” (Citations omitted.) Id., 125. “Moreover, in viewing [the] evidence and the permissible inferences drawn from it to determine whether the decision was clearly erroneous, we do so in the light most favorable to sustaining the trial court’s determination of probable cause.” (Internal quotation marks omitted.) In re Ernest B., supra.

In the present case, our review of the record, including the court’s carefully detailed factual findings, which we have summarized in this opinion, satisfies us that the trial court’s decision ordering the transfer was not clearly erroneous. The factual findings were sufficient to support the court’s conclusion that “there is probable cause that the respondent, Jose M., acting with other persons, committed or attempted to commit robbery, and in the course of and in furtherance of the robbery, a participant in the robbery caused the death of a person other than one of the participants.”

The order of transfer is affirmed.

In this opinion the other judges concurred.

       General Statutes § 46b-127 provides in pertinent part: “The court shall transfer to the regular criminal docket of the superior court from the docket for juvenile matters: (1) Any child referred for the commission of a murder under sections 53a-54a to 53a-54d, inclusive, provided any such murder was committed after such child attained the age of fourteen years. . . . No such transfer shall be valid unless, prior thereto, the court has made written findings, after a hearing, that there is probable cause to believe that the child has committed the act for which he is charged. At such hearing, the child shall have the right to counsel and to confront the witnesses against him. The procedures provided in section 54-46a shall apply at such hearing, except that the child shall have the right to move to suppress any admission made by him on the ground that it was obtained in violation of the provisions of subsection (a) of section 46b-137 and to obtain discovery of exculpatory information. An order by the court under this section transferring a child from the docket for juvenile matters to the regular criminal docket of the superior court shall be a final judgment for purposes of appeal. Upon the effectuation of the transfer, such child shall stand trial and be sentenced, if convicted, as if he were sixteen years of age . . . .”

         General Statutes § 53a-54c provides in pertinent part: “A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping, sexual assault in the first degree . . . sexual assault in the third degree, sexual assault in the third degree with a firearm, escape in the first degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants . . . .”

       Alternatively, the state claims that if the testimony was hearsay, it was admissible as a declaration by Fiorello or Ellis of a present intention to do an act in the near future. See State v. Rinaldi, 220 Conn. 345, 358 n.7, 599 A.2d 1 (1991); State v. Journey, 115 Conn. 344, 351, 161 A. 515 (1932). The issue in this case is the court’s finding that there was probable cause to believe that the respondent had committed felony murder. Consequently, the evidence would not be relevant if offered for this reason.

       Fiorello’s response in full is as follows: “Like all of us, like I told him that I wasn’t going to take the money, so I walked to the woods and I waited there. And then [the respondent] was standing by the parking lot, because he was supposed to take the car. And then when the Chinese guy came, [the respondent] checked that there was no keys. [The respondent] was walking back. And while that was happening [Ellis] was telling the Chinese guy to give him the food and the money and stuff, and the Chinese guy started to run. So then when [the respondent] was walking back, he shot him. And he dropped the food and then [Ellis] started forcing [the respondent] to take the food and then [the respondent] took the food and he ran.”

       In his reply brief, the respondent urges us to review this claim under the plain error doctrine pursuant to Practice Book § 4185. This doctrine “is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985). In the present case, we cannot say that the inclusion of this testimony constituted such a manifest injustice to the respondent so as to impair the effectiveness or integrity of the hearing. See id., 88. Accordingly, this claim does not warrant review under the plain error doctrine.

       Public Acts 1990, No. 90-136, § 2.

       We note that the respondent’s contention would produce an untenable and bizarre result. While the dying declaration could be relied upon at trial where due process and confrontational rights are afforded the most protection, it could not be relied upon at the probable cause hearing which is necessary to initiate the prosecution. We decline to endorse such a result.