author: Foti, J.

text:
    Tolland Bank v. Robert G. Larson et al.
    (10610)
    Dupont, C. J., Foti and Freedman, Js.
    Argued May 1
    decision released July 21, 1992

      William F. McDonald, with whom was John H. Parks, for the appellant (named defendant).

      Jerome Levine, for the appellee (plaintiff).
   Foti, J.

The named defendant, Robert G. Larson, appeals from the judgment of strict foreclosure. The defendant claims that the trial court improperly rendered judgment after refusing to set aside a default for failure to plead. We affirm the judgment of the trial court.

The following facts are pertinent to our decision. In February, 1991, the plaintiff commenced a foreclosure action against a number of defendants, all of whom were defaulted. The defendant Robert G. Larson appeared pro se and was subsequently defaulted in May, 1991, for failure to plead. The plaintiff filed a motion for judgment of strict foreclosure on July 12, 1991. On August 5, 1991, Attorney John H. Parks filed an appearance for the defendant. A hearing on the plaintiff’s motion for judgment was scheduled on the short calendar list for Monday, August 19, 1991. On that morning, prior to the 10 a.m. short calendar, the defendant filed an answer to the complaint, in which he claimed to have insufficient knowledge or information on which to form a belief as to each and every paragraph. The answer was dated August 16,1991, and certified as having been mailed to all counsel of record on August 17,1991. Counsel for the plaintiff protested to the court that he had no prior notice or knowledge of the answer and sought to proceed on his motion. The court then asked Parks whether he wanted to have the court set aside the default. The court received no response to this question. The clerk then noted on the defendant’s answer, “8-19-91 Default not reopened (Scheinblmn, J.)” and signed the notation. The plaintiff then provided the court with the original promissory note and mortgage deed, an affidavit of debt dated August 15,1991, and an original appraisal report performed by Robert G. Stewart. The defendant was given the opportunity, through counsel, to question the appraiser, but counsel declined the offer. The court rendered a judgment of strict foreclosure and set law days beginning October 23, 1991.

The defendant claims that pursuant to Practice Book § 363A the clerk should have set aside the default for failure to plead because he filed an answer before judgment was rendered, and that, therefore, judgment could not have been rendered.

“The design of the rules of practice is both to facilitate business and to advance justice; ‘they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice.’ ” Snow v. Calise, 174 Conn. 567, 574, 392 A.2d 440 (1978); Practice Book § 6. “Rules of practice must be construed reasonably and with consideration of this purpose. . . . Rules 'are a means to justice, and not an end in themselves; their purpose is to provide for a just determination of every proceeding.’ ” (Citations omitted.) In re Dodson, 214 Conn. 344, 363, 572 A.2d 328, cert. denied, 572 U.S. 328, 111 S. Ct. 247, 112 L. Ed. 2d 205 (1990).

Applying these principles to the circumstances of this case, we conclude that the court acted reasonably. The record is clear that the sole purpose of the attempt to open the default was to delay the proceedings so that counsel for the defendant might negotiate a better result with the plaintiff. The delay was sought in the hope of working something out “as a package deal on two properties.”

“[W]e would be reluctant to find an abuse of discretion [for failing to set aside the default and rendering judgment] and to remand . . . where there is nothing in the record to suggest that a meritorious defense may exist. ’ ’ Burritt Mutual Savings Bank of New Britain v. Tucker, 183 Conn. 369, 374, 439 A.2d 396 (1981). We note that the defendant’s answer claimed insufficient knowledge on which to form a belief as to each and every paragraph of the complaint, including allegations that the defendant had signed the promissory note and mortgage deed. It is obvious that unless the defendant is incapacitated or otherwise unavailable to his attorney, such information is within his knowledge so as to require an admission or denial.

“ ‘Courts have an inherent power to disregard . . . pleadings which have been interposed for the purpose of thwarting the orderly progress of a case.’ ” Friedlander v. Friedlander, 191 Conn. 81, 91, 463 A.2d 587 (1983); Burritt Mutual Savings of New Britain v. Tucker, supra, 373.

We will not elevate form over substance. The defendant’s sole purpose was delay. He has failed to suggest any defense of at least arguable merit. He was also given full opportunity to participate in the proceedings on the plaintiff’s motion for judgment of foreclosure, having conceded that no equity existed in the property.

The judgment is affirmed.

In this opinion the other judges concurred.

       All other defendants were defaulted for either failure to appear or failure to disclose a defense. They have not appealed. We will refer in this opinion to the named defendant as the defendant.

       Practice Book § 363A provides: “Where a defendant is in default for failure to plead pursuant to Sec. 114, the plaintiff may file a written motion for default which shall be acted on by the clerk upon filing, without placement on the short calendar.
      “If a party who has been defaulted under this section files an answer before a judgment after default has been rendered by the court, the clerk shall set aside the default."

       We note that the proposed amendment to Practice Book § 363A provides: “If a claim for a hearing in damages or a motion for judgment has been filed the default may be set aside only by the court.”

       The relevant colloquy is as follows:
      “The Court: I see an answer dated August 16. Did that follow the default?
      “Mr. Parks: Yes, Your Honor. The default as to Robert Larson.
      “The Court: So you want me to reopen the default?
      “Mr. Parks: I think what happened, Your Honor, let me explain, Mr. Larson has two properties that are both under foreclosure by Tolland Savings Bank.
      “The Court: In this one action?
      “Mr. Parks: No. A separate action that is also going to judgment. He has got an offer to purchase that, and I was hoping in the time between my filing of the answer and Attorney Levine’s filing his default for failure to disclose a defense that we might be able to work out something as a package deal on two properties. I know this is the eleventh hour, and I apologize to him and to his appraiser, but I wasn’t able to — as you can see, I just filed my appearance, and I wasn’t able to do anything any quicker.
      “Mr. Levine: Good morning, Your Honor. For the record, Attorney Jerome Levine. I’m here this morning with Mr. Stewart as my appraiser, and I want to indicate to the court what has happened. I have no pleading from Mr. Parks and was informed when I walked into the courthouse this morning that he had filed some kind of a pleading. I know—
      “The Court: It was filed this morning.
      “Mr. Levine: That’s correct, Your Honor. I know that he appeared in this matter approximately two weeks ago because it was on for judgment two weeks ago and since I was just back from vacation, I couldn’t get everything together. I did not hear from Mr. Parks in the two week interim. I called him on Friday merely as a courtesy to say, ‘I’m going forward.’ I did not hear from him on Friday, and when I got to my office this morning, there was a phone message—
      “The Court: Mr. Parks, let me ask you this, if I give a foreclosure by sale, you’re going to have enough time to see if you can work something out?
      “Mr. Parks: I hadn’t anticipated that, Your Honor, because I do believe there is no equity here.
      “Mr. Levine: There is no equity, Your Honor.
      “The Court: There is no equity. Well, if I give you a nice law day, you can still work things out.
      “Mr. Parks: Well, we would prefer to do it the other way, Your Honor, but—
      “The Court: Well, what am I supposed to do with Mr. Levine? He came here to court. He brought his witnesses. He says he’s been back two weeks and he hasn’t heard from you. He called you Friday, and you didn’t return the call. What am I supposed to do, ignore him?
      “Mr. Parks: No, Your Honor. I apologize for this situation. My client slept on this situation, and I got the thing—
      “The Court: Well, then we’re going to proceed, and your comments for the record to protect your client are noted.”


source: Caselaw Access Project

author: Norcott, J.

license: Public Domain

text:
    Greater Bridgeport Transit District v. Amalgamated Transit Union, Local 1336
    (10739)
    Dupont, C. J., Daly and Norcott, Js.
    Argued June 2
    decision released July 21, 1992

      Thomas J. Weihing, with whom, on the brief, was John T. Bochanis, for the appellant (plaintiff).

      James L. Kestell, for the appellee (defendant).
   Norcott, J.

The plaintiff, Greater Bridgeport Transit District (district), appeals from the trial court’s judgment denying its application to vacate an arbitration award brought pursuant to General Statutes § 52-418 and concomitantly granting the application of the defendant, Amalgamated Transit Union, Local 1336 (union), for an order confirming the award.

On appeal, the district claims that the trial court improperly determined that (1) the arbitrator was authorized to render an award, (2) his award conformed to the submission, and (3) the submission involved an agreement between the parties that is required by federal law. We affirm the judgment of the trial court.

The pertinent facts are as follows. The district, a public entity serving the elderly and handicapped, employs union members to perform vehicle maintenance. The parties’ collective bargaining agreement provides for arbitration and states in part that “[t]he decision of the arbitrator shall be final and binding upon the parties,” and that the arbitrator’s authority “shall be limited to interpreting and applying the provisions” of the agreement. The parties also operate under what is known as a “13 (c) agreement,” which is mandated by federal law because the district receives federal funding pursuant to the Urban Mass Transportation Act of 1964, 49 U.S.C. § 1601 et seq. That agreement sets forth requirements for dispute resolution and provides that grievances may be submitted for arbitration in accordance with the collective bargaining agreement.

In June, 1990, the union commenced grievance proceedings alleging that maintenance on certain vehicles was not being performed by its members as required by the collective bargaining agreement. The parties proceeded to arbitration, and a single, neutral arbitrator was appointed by the American Arbitration Association. On the first day of arbitration, October 25,1990, the union’s counsel stated that a three member panel made up of a neutral arbitrator and one chosen by each party should hear the dispute. After some off-the-record discussion, the arbitrator suggested that the hearing proceed and include argument as to whether a three member panel was required. The arbitrator would then issue a draft decision on both the substantive dispute and the issue of who should have arbitrated the matter. The parties were told that if the arbitrator found that the hearing should have been heard by a three member panel, he would present his draft decision to the parties so they could request such a panel that would then review and vote on the draft decision. The union’s counsel agreed to these procedures. The district’s counsel objected, but nevertheless participated in the hearing that day and throughout further hearings.

On April 25,1991, the arbitrator issued his draft decision, finding in favor of the union on the substantive issue and crafting a remedy in accordance therewith. Although the arbitrator determined that the district had not violated the collective bargaining agreement, he found that it did violate the 13 (c) agreement. The arbitrator also determined that under these contracts, the three member panel was required. Pursuant to the procedures discussed on October 25,1990, copies of the decision were mailed to the parties, who had until May 14,1991, to make written requests for review by a three member panel. The union chose to accept the decision. Because neither party requested review by a three member panel, the arbitrator made the draft decision final on May 16, 1991. It was then signed by the arbitrator and the union’s counsel. The district declined to sign the decision.

On May 24,1991, the district moved in the Superior Court to vacate the arbitration award, claiming that the arbitrator had exceeded his authority under General Statutes § 52-418 (a) (4). On June 17, 1991, the defendant moved to confirm the award. On October 9, 1991, the trial court issued a memorandum of decision denying the district’s request to vacate the arbitration award and granting the union’s request for confirmation. This appeal followed.

The district first claims that the arbitrator lacked authority to render an award because he ultimately determined that a three member arbitration panel should decide the grievance. We disagree.

At the outset, we note that as a reviewing court we afford great deference to arbitrators’ decisions; Board of Education v. AFSCME, 195 Conn. 266, 270, 487 A.2d 553 (1985); Board of Education v. Hartford Federation of School Secretaries, 26 Conn. App. 351, 352, 600 A.2d 1053 (1992); since the scope of our review is limited by General Statutes § 52-418 and the terms of the parties’ contract. Carroll v. Aetna Casualty & Surety Co., 189 Conn. 16, 22, 453 A.2d 1158 (1983); Board of Education v. Hartford Federation of School Secretaries, supra, 353. Specifically, our review is limited to a comparison of the award with the submissions, and to a determination of whether the award conforms to the submissions. Watertown Police Union Local 541 v. Watertown, 210 Conn. 333, 338-39, 555 A.2d 406 (1989). The party seeking to vacate the award has the burden of demonstrating its nonconformity to the submission. Id., 339; Board of Education v. Hartford Federation of School Secretaries, supra, 353-54.

Here, the trial court found that the parties’ contracts provided that disputes are to be arbitrated in accordance with their collective bargaining agreement, and that an arbitration decision is final and binding on the parties. The court also determined that the parties did not restrict the submission so as to authorize the arbitrator to consider only the specific grievance at issue. As a result, determination of whether a single arbitrator was permissible or whether a tripartite panel was required was a matter within the scope of the unrestricted submission. Board of Education v. Hartford Federation of School Secretaries, supra; Hartford v. IAFF, Local 760, AFL-CIO, CLC, 24 Conn. App. 254, 257-58, 587 A.2d 435 (1991). “Where the parties contractually agree to a procedure and have delineated the authority of the arbitrators, they must adhere to, and are bound by, the limits which they have set.” Trumbull v. Trumbull Police Local 1745, 1 Conn. App. 207, 211-12, 470 A.2d 1219 (1984); Waterbury Board of Education v. Waterbury Teachers Assn., 168 Conn. 54, 62, 357 A.2d 466 (1975). Further, even though the collective bargaining agreement does not require any specific number of arbitrators, it is well settled that when the submission is silent an arbitrator nevertheless is empowered to decide factual and legal questions, and that his award cannot be vacated on the ground that his construction of the agreement was erroneous. Bic Pen Corporation v. Local No. 131, 183 Conn. 579, 584, 440 A.2d 774 (1981). Finally, it is noteworthy that the district could have submitted the question of the arbitrator’s authority to a designated court pursuant to General Statutes § 52-415, an option “designed to enhance . . . the process of rapid, informal dispute resolution.” Daginella v. Foremost Ins. Co., 197 Conn. 26, 34, 495 A.2d 709 (1985); Trumbull v. Trumbull Police Local 1715, supra, 216. The district did not do so, but instead chose to participate in all three days of the arbitration proceeding. On the basis of the record provided in this case, we conclude that the trial court correctly determined that the arbitrator had the authority to decide the number of arbitrators.

The district next claims that the arbitrator’s award did not conform to the submission because it did not agree to submit to the arbitrator the issue of whether the grievance should be decided by a single arbitrator or a tripartite panel. We disagree.

When the parties have contractually agreed to resolve their disputes by arbitration, “the arbitration clause in the contract is a written submission to arbitration.” Vail v. American Way Homes, Inc., 181 Conn. 449, 451, 435 A.2d 993 (1980); Morganti, Inc. v. Boehringer Ingelheim Pharmaceuticals, Inc., 20 Conn. App. 67, 74, 563 A.2d 1055 (1989). A challenge to the authority of the arbitrator is limited to a comparison of the award to the submission. Daley v. Hartford, 215 Conn. 14, 23, 574 A.2d 194, cert. denied, 498 U.S. 982, 111 S. Ct. 513, 112 L. Ed. 2d 525 (1990). To decide if an arbitrator has exceeded his authority, a reviewing court examines the submission together with the award to determine if the award conforms to the submission. Bruno v. Department of Consumer Protection, 190 Conn. 14, 18, 458 A.2d 685 (1983). Every reasonable presumption will be made in order to sustain an award. Bic Pen Corporation v. Local No. 134, supra. If the submission does not contain limiting or conditional language, then the submission is unrestricted. Id., 584-85. If the submission is unrestricted, the award is final and binding, and cannot be reviewed for factual or legal error. Caldor, Inc. v. Thornton, 191 Conn. 336, 340, 464 A.2d 785 (1983), aff’d, 472 U.S. 703, 105 S. Ct. 2914, 86 L. Ed. 2d 557 (1985). Further, an arbitrator is not required to decide the issues presented according to law if the submission is unrestricted. Bridgeport v. Bridgeport Police Local 1159, 183 Conn. 102, 106-107, 438 A.2d 1171 (1981). In this case, the trial court found that the arbitration provision was unrestricted and that neither party sought to restrict the submission. As we have frequently stated, we cannot, and do not, retry the facts. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 220, 435 A.2d 24 (1980). Therefore, the trial court correctly determined that the award conformed to the submission.

Finally, the district advances a two-pronged attack on the trial court’s finding that the submission was made pursuant to both the collective bargaining and 13 (c) agreements. The district first claims the arbitrator exceeded his authority by construing the 13 (c) agreement after finding that there had been no violation of the collective bargaining agreement. Second, even if application of the 13 (c) agreement was proper, it was incorrectly interpreted. Again, we disagree.

Our review of the contracts discloses that the 13 (c) agreement is specifically incorporated into the collective bargaining agreement, a fact the district concedes in its brief. Although the maintenance grievance was submitted pursuant to the arbitration provision in the collective bargaining agreement, in light of the fact that this agreement incorporates the 13 (c) agreement, it is of no moment that the demand for arbitration did not specifically refer to the arbitration clause in the 13 (c) agreement. The trial court correctly determined that the arbitrator’s finding of a violation of the 13 (c) agreement conformed to the submission of all issues arising under that agreement and the parties’ collective bargaining agreement. As to the district’s claim that the arbitrator improperly interpreted the 13 (c) agreement, this is a factual determination that, as stated above, we cannot and do not retry. Pandolphe’s Auto Parts, Inc. v. Manchester, supra.

The judgment is affirmed.

In this opinion the other judges concurred.

       Article 20 § A of the parties’ collective bargaining agreement provides in pertinent part: “The decision of the arbitrator shall be final and binding upon the parties. . . . The Arbitrator’s authority shall be limited to interpreting and applying the provisions of this Agreement and shall have no power to add, subtract or modify any of the provisions of this Agreement.”

       Section 11 of the 13 (c) agreement provides in pertinent part: “In the event of any labor dispute involving [the District] ... or the employees covered by this agreement . . . such dispute may be submitted at the written request of either the Union ... or the [District] to a board of arbitration selected in accordance with the existing collective bargaining agreement . . . .”

       At the October 25,1990 session, the arbitrator asked the district’s counsel, “[D]o you feel that you would be prejudiced if we proceed under the proposal that I’ve made here today?” Counsel replied, “I can waive no rights as I sit here for the Greater Bridgeport Transit District as a public body without bringing it before them.” Later, counsel told the arbitrator, “I just want to comment on your ruling . . . and that was [that] I did note an objection with the statement that I could not agree to anything on behalf of the district.” The arbitrator replied, “I understand your objection . . . and it’s noted.”


author: Dupont, C. J.

text:
    Steven Levine v. Police Commission of the Town of Fairfield
    (10563)
    Dupont, C. J., Foti and Heiman, Js.

      Argued May 4
    decision released July 21, 1992

      Donal C. Collimore, assistant town attorney, for the appellant (defendant).

      Lawrence M. Lapine, with whom, on the brief, was Christopher R. Bello, for the appellee (plaintiff).
   Dupont, C. J.

This appeal concerns a challenge, pursuant to General Statutes § 14-313, to certain parking restrictions imposed by the defendant police commission of the town of Fairfield (commission) affecting Reef Road near the plaintiffs place of business. The commission appeals from the judgment of the trial court that revoked the commission’s order prohibiting parking along the west side of Reef Road between One Rod Highway and Fairfield Beach Road. The commission contends that the trial court improperly (1) proceeded to a determination of the merits when the plaintiff failed to serve and cite in the forty-nine Reef Road residents who petitioned the commission to request the parking restrictions, (2) found that the plaintiff was sufficiently aggrieved by the decision of the commission to allow him to maintain his appeal pursuant to General Statutes § 14-313, and (3) concluded that the parking restrictions adopted by the commission were unreasonable. We affirm the judgment of the trial court.

The plaintiff is the owner of the Seagrape Cafe, an eating and drinking establishment located at 1144 Reef Road in Fairfield, which is at the intersection of Reef Road and Fairfield Beach Road. Reef Road runs in a north-south direction for at least one mile from the Post Road on the north, terminating at its intersection with Fairfield Beach Road. Fairfield Beach Road runs in an east-west direction along the town’s coastline.

Neither Reef Road nor Fairfield Beach Road is exclusively residential. Both are interspersed with commercial and other nonconforming uses. Although the intersection of the two roads is the site of several commercial properties, that portion of Reef Road running north from the plaintiff’s business premises to its intersection with One Rod Highway, a distance of approximately 800 feet, is residential and consists of multifamily homes. In this area, Reef Road is thirty-six feet wide. Allowing seven feet for parking on both sides leaves a twenty-two foot wide travel portion of the highway, or eleven foot travel lanes in either direction. Evidence before the trial court showed that these dimensions meet generally accepted standards for commercial and residential areas.

The plaintiff’s business premises had been the site of a bar-cafe for over fifty years before the plaintiff purchased the property in 1983. Although the Seagrape has an occupancy limit of 180 patrons, it has only sixteen on-site parking spaces and depends on on-street parking for its patrons. Prior commercial establishments at 1144 Reef Road were likewise dependent on on-street parking, which was not restricted in any way.

The commission is the traffic authority for the town of Fairfield. At its regular monthly meetings, the commission decides town traffic issues. Prior to making any decision, the commission conducts a traffic survey between 9 a.m. and noon on the Wednesday preceding its monthly meeting. This survey is conducted by at least one member of the commission, along with a liaison from the police department, visiting the site that is the subject of a traffic or parking request. The commissioner who visits the site then makes a recommendation to the full commission regarding the appropriate action.

For some time prior to August 9, 1989, the date of the commission’s action, the commission had received numerous complaints concerning crowds, noise, and resulting traffic congestion at the southern end of Reef Road, particularly in the late night and early morning hours. The police department had initiated extra patrols during those hours on the weekends but had little success in resolving the complaints.

In July, 1989, at a regular meeting of the commission, a resident of Reef Road requested that the commission restrict parking along one side of Reef Road from One Rod Highway to Fairfield Beach Road. The commission suggested that he put together a petition of the area residents regarding the proposal.

On July 26, 1989, the resident sent a letter to the commission. Enclosed with this letter was a “Letter of Request,” which requested that the commission “explore the possibility of restricting parking to only one side of Reef Road between One Rod Highway and Fairfield Beach Road” and which was signed by forty-nine residents of that area.

On August 2, 1989, three commissioners together with a member of the police department visited the lower Reef Road area to conduct a traffic survey. This visit took only a matter of minutes and occurred between 9 a.m. and noon. None of those conducting the traffic survey, including the accompanying police officer, possessed any special traffic expertise.

As a result of the survey, these persons recommended that parking be restricted on the west side of Reef Road from One Rod Highway south to Fairfield Beach Road between the hours of 8 p.m. and 6 a.m. This recommendation was conditioned on receipt of “a petition reflecting a consensus of the residents.”

At the August 9, 1989 regular meeting of the commission, the petition was presented to the commission as well as a survey of the residents of lower Reef Road indicating support for the recommendation. The commission then voted to restrict parking along the west side of Reef Road from One Rod Highway to Fairfield Beach Road from 8 p.m. to 6 a.m.

The plaintiff appealed to the Superior Court pursuant to General Statutes § 14-313 because the parking restriction adversely affected his business. The trial court concluded that the action of the commission was beyond the legitimate police powers of the commission and, therefore, was unreasonable because it was “not designed to regulate parking or traffic in response to any overall public need” but “was more directly concerned with the regulating, adverse or otherwise, of the business of the plaintiff.” The court revoked the parking restriction and ordered the removal of any signs authorized by the commission to accomplish that purpose. This appeal followed.

I

The commission first claims that the trial court should not have proceeded to determine the merits of the plaintiffs appeal because the plaintiff failed to serve and cite in the forty-nine Reef Road residents whose petition prompted the challenged commission action. The commission argues that once the forty-nine petitioners were successful before the commission, they acquired a special interest in the proceedings that would be affected by the plaintiff’s appeal. Consequently, the commission contends, they were necessary and indispensable parties who needed to be served proper citations to appear as parties. The commission’s argument rests on the holding in Fong v. Planning & Zoning Board of Appeals, 212 Conn. 628, 563 A.2d 293 (1989). We conclude, however, that Fong is inapplicable here.

“Parties have been termed indispensable when their interest in the controversy is such that a final decree cannot be made without either affecting that interest or leaving the controversy in such condition that its final disposition may be inconsistent with equity and good conscience.” Gandio v. Gaudio, 23 Conn. App. 287, 305-306, 580 A.2d 1212, cert. denied, 217 Conn. 803, 584 A.2d 471 (1990). In such cases, joinder is mandated because due process principles make it “essential that [an indispensable party] be given notice and an opportunity to protect his interests by making him a party to the [action].” Fong v. Planning & Zoning Board of Appeals, supra, 634.

Initially, we note that the commission raised the issue of the plaintiffs failure to join the forty-nine petitioners by way of a motion to dismiss. Since § 14-313 requires that only the local traffic authority be named and served in an appeal that challenges the establishment of parking restrictions, the failure to serve and cite the petitioners does not implicate the trial court’s subject matter jurisdiction over the plaintiff’s appeal. Id., 634-36. Consequently, a motion to dismiss is not the proper method to raise the issue of the nonjoinder of a party. Instead, the exclusive remedy for nonjoinder of indispensable parties is by way of a motion to strike. W. G. Glenney Co. v. Bianco, 27 Conn. App. 199, 202, 604 A.2d 1345 (1992). Although the commission did not properly raise the issue of nonjoinder in the trial court and now seeks to raise a claim on appeal that was not distinctly raised below, “[w]e believe that because of the definition of indispensable party and its relation to the proper disposition of an action, it is necessary for us to review the [commission’s] claim even though [it] did not move to strike the plaintiff’s complaint.” Id., 203.

In Fong, the plaintiffs were issued a building permit by the building inspector. Charles W. Pettengill, Jr., the owner of property adjacent to the plaintiffs’ property, appealed the granting of the building permit to the planning and zoning board of appeals, which sustained his appeal and revoked the plaintiffs’ permit. The plaintiffs then appealed the board’s decision to the Superior Court, but did not name Pettengill as a party.

Our Supreme Court concluded that an applicant who receives a favorable decision from a planning and zoning board of appeals is a necessary and indispensable party to an appeal by persons aggrieved by the decision “because were the appeal to be sustained the result would be the invalidation and deprivation of rights granted to the applicant by the zoning board.” (Emphasis added; internal quotation marks omitted.) Fong v. Planning & Zoning Board of Appeals, supra, 633. The court farther explained that “Pettengill was not merely an abutter, but the person who initiated before the board the very proceeding that has resulted in the present appeal. Unlike other abutters or aggrieved members of the public, whose interests may be regarded as adequately represented by the board itself, he had become a party to the administrative proceeding. If he had not prevailed before the board, he could have appealed from its decision. ” (Emphasis added.) Id.

Here, by contrast, the parking restrictions approved by the commission granted no rights to the petitioners. Consequently, unlike Fong, the decision of the trial court sustaining the appeal could not invalidate or deprive the petitioners of any rights granted to them by the traffic authority. Additionally, if the persons who signed the petition had not prevailed before the police commission, they could not have appealed the decision. General Statutes § 14-313 allows an appeal only by a “person aggrieved by any order or regulation made by any traffic authority . . . relating to . . . the establishment of parking restrictions ... or by the performance of any act pursuant to the provisions of [Chapter 249].” Unlike General Statutes § 8-8 at issue in Fong, § 14-313 does not provide a right of appeal from any “decision” by a traffic authority. The purpose of § 14-313 is to permit a challenge to the exercise of police powers regulating traffic and parking, not to allow a challenge to the failure of the local traffic authority to exercise its statutory powers.

The forty-nine petitioners, while obviously interested in the outcome of the plaintiffs appeal to Superior Court, were neither necessary or indispensable parties to the disposition of that appeal. Instead, they are more properly regarded as members of the general public whose interests are adequately represented by the commission itself. For these reasons, the due process concerns that compelled the conclusion that Pettengill was an indispensable party in the Fong appeal are absent in the present case. Thus, the trial court properly proceeded to consider the merits of the plaintiffs appeal notwithstanding the plaintiffs failure to join the forty-nine petitioners as parties to the appeal.

II

The commission next argues that the trial court improperly concluded that the plaintiff was aggrieved by the Reef Road parking restrictions. “The jurisdictional requirement of aggrievement serves both practical and functional purposes in assuring that only those parties with genuine and legitimate interests are afforded an opportunity to appeal. ... A party [is] aggrieved if it successfully demonstrates a specific, personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as the concern of all members of the community as a whole, and successfully establishes that this specific, personal and legal interest has been specially and injuriously affected by the decision.” (Citations omitted.) Zoning Board of Appeals v. Planning & Zoning Commission, 27 Conn. App. 297, 300-301, 605 A.2d 885 (1992). “Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected.” (Internal quotation marks omitted.) Hall v. Planning Commission, 181 Conn. 442, 445, 435 A.2d 975 (1980).

The commission contends that the plaintiff failed to demonstrate that he has a specific interest that has been injuriously affected by its action. Specifically, the commission argues that because the right of the plaintiff (and his customers) to park along the west side of Reef Road is no different from that of the general public, he cannot satisfy the test for aggrievement.

The trial court concluded that the plaintiff was aggrieved. This finding will not be disturbed on appeal unless the subordinate facts do not support that finding. Walls v. Planning & Zoning Commission, 176 Conn. 475, 476, 408 A.2d 252 (1979). Here, the court found that the plaintiff was affected in the conduct of his business by the on-street parking restriction. No reported case has yet defined the specific interest necessary for aggrievement within the terms of General Statutes § 14-313.

The commission correctly points out that the plaintiffs aggrievement cannot rest on a claim of any property right in parking along the west side of Reef Road. Parking on public streets is not a property right as such, but a general right of the community. See State v. Muolo, 119 Conn. 323, 326, 176 A. 401 (1935); 10A E. McQuillin, Municipal Corporations (3d Ed. Rev.) § 30.58, p. 375. Although the allowance of parking on a public street is not a property right, it is a right relating to the use of a public street, which, if restricted, can, in some instances, form the basis for aggrievement. If this were not so, the right of appeal given by § 14-313 could never be exercised because no individual member of the public could ever be aggrieved.

The trial court, however, did not rest its finding of aggrievement on any property right of the plaintiff in parking on Reef Road. Rather, the court found that the residents’ petition that prompted the parking restriction “was aimed at the business of the plaintiff, with an ulterior desire to so restrict or limit it that it might hopefully vanish from the neighborhood,” and concluded that the parking regulations “were not designed to regulate parking or traffic in response to any overall public need . . . but more pointedly to restrict or regulate the plaintiff’s business.” This analysis is relevant as a factor in determining aggrievement. State Medical Society v. Board of Examiners in Podiatry, 203 Conn. 295, 303, 524 A.2d 636 (1987).

The plaintiffs property is located in a commercial zone within the town of Fairfield. It had been the site of a bar and restaurant for more than fifty years. As such, the plaintiff had a “predictable fourteenth amendment property right in the commercial use” of his property. Brady v. Town of Colchester, 863 F.2d 205, 212-13 (2d Cir. 1988). Moreover, the plaintiff contended, and the trial court agreed, that this specific personal and legal interest was specially and injuriously affected by the challenged parking restrictions because the parking restrictions are an unreasonable governmental regulation designed to drive him out of business. Cf. Bello v. Walker, 840 F.2d 1124, 1129 (3d Cir.), cert. denied, 488 U.S. 851, 109 S. Ct. 134, 102 L. Ed. 2d 107, 488 U.S. 868, 109 S. Ct. 176, 102 L. Ed. 2d 145 (1988) (substantive due process violation when governmental regulation affecting property is arbitrary, irrational, or tainted by improper motive). Additionally, the area affected by the challenged parking restrictions was close to the plaintiff’s business and the trial court found that the parking restrictions had an adverse impact on the plaintiff’s business revenues.

An economic interest that is injuriously affected may afford a basis for aggrievement; New Haven v. Public Utilities Commission, 165 Conn. 687, 702, 345 A.2d 563 (1974); as long as the economic deprivation is not speculative. Diamond v. Charles, 476 U.S. 54, 106 S. Ct. 1697, 90 L. Ed. 2d 48 (1976); Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 497, 400 A.2d 726 (1978). In light of the proximity of the plaintiff’s business to the area affected by the parking restrictions, the economic deprivation suffered by the plaintiff as a result of the restrictions, and the purpose of the commission’s action to affect the operation of the plaintiff’s business, the trial court properly determined that the plaintiff was sufficiently aggrieved by the commission’s decision to pursue his appeal challenging the Reef Road parking restrictions.

Ill

The commission’s last claim is that the trial court improperly concluded that the parking restrictions on the west side of Reef Road were unreasonable. The commission contends that the trial court’s method of determining whether the parking restrictions were “reasonable” under General Statutes § 14-313 was flawed. The commission argues that the reasonableness of its parking regulation should be evaluated by its effect and not an analysis of its purpose or the means employed to achieve its purpose. We do not agree.

The commission urges us to evaluate the reasonableness of its parking restrictions under the standard enunciated by the United States Supreme Court in Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591, 64 S. Ct. 281, 88 L. Ed. 333 (1944). “The issue before the Supreme Court of the United States in Hope was the interpretation of § 4 (a) of the federal Natural Gas Act of 1938, 52 Stat. 821, 15 U.S.C. § 717, which provides that gas rates ‘shall be just and reasonable.’ . . . The court ultimately concluded that ‘[u]nder the statutory standard of “just and reasonable” it is the result reached not the method employed which is controlling. . . . If the total effect of a rate order cannot be said to be unjust and unreasonable, judicial inquiry is at an end.’ Id., 602.” (Emphasis added.) Connecticut Light & Power Co. v. Department of Public Utility Control, 216 Conn. 627, 633-34, 583 A.2d 906 (1990).

We are unpersuaded that the Hope test provides the proper standard for evaluating the validity of municipal regulations. The power to regulate parking on public streets is a universally recognized police power of the state that may be delegated to its municipal subdivisions. Edwards v. Hartford, 145 Conn. 141, 145, 139 A.2d 599 (1958); Cassidy v. Waterbury, 130 Conn. 237, 239, 33 A.2d 142 (1943); see also 7A Am. Jur. 2d, Automobiles and Highway Traffic § 271. “It is unquestionably true that any regulation, under the police power, for the use of property must have a reasonable relation to the public health, safety and welfare and must operate in a manner which is not arbitrary, destructive or confiscatory. We examine the ordinance to decide whether in its purpose and operation generally, it satisfies the rule.” (Citations omitted; emphasis added.) Calve Bros. Co. v. Norwalk, 143 Conn. 609, 616, 124 A.2d 881 (1956). “If an ordinance is found to be partial and unequal in its operation as between different classes, if it is manifestly unjust, if it discloses bad faith, or if it involves such oppressive and gratuitous inference with the rights of the citizen as can find no justification in the minds of reasonable [people], the court might well say that the legislature never intended to give authority to make such rules, and that they are unreasonable and ultra vires.” (Footnote omitted.) 56 Am. Jur. 2d 429, Municipal Corporations, Counties, and Other Political Subdivisions § 388.

Judicial review of challenged municipal regulations, therefore, necessarily involves a determination of whether the purposes asserted in support of the regulation are, in fact, served, or whether other, improper purposes have motivated the municipal action and affect its operation. See Builders Service Corporation v. Planning & Zoning Commission, 208 Conn. 267, 545 A.2d 530 (1988). Moreover, the means adopted to produce the result must bear a rational relationship to the stated purpose of the ordinance. Blue Sky Bar, Inc. v. Stratford, 203 Conn. 14, 22, 523 A.2d 467 (1987); Bush v. Quality Bakers of America, 2 Conn. App. 363, 370, 479 A.2d 820, cert. denied, 194 Conn. 804, 482 A.2d 709 (1984); DeLeon v. Jacob Bros., Inc., 38 Conn. Sup. 331, 446 A.2d 831 (1981), appeal dismissed, 456 U.S. 952, 102 S. Ct. 2026, 72 L. Ed. 2d 447 (1982). For these reasons, the Hope test, which calls on the reviewing court to look at the result alone, is not an appropriate standard by which to review municipal action.

The trial court properly concluded that the challenged parking restrictions were not rationally related to a legitimate governmental concern. The court first examined the public safety concerns set forth in the residents’ petition; see footnote 2, supra; which represent the only reasons articulated in support of the parking restrictions that were subsequently adopted. The court noted that two of those reasons had nothing to do with the public safety on lower Reef Road. Further, the court noted that the remaining concerns, namely, that traffic and parking on lower Reef Road impairs access by fire department vehicles as well as any other emergency service vehicles, were not supported by the evidence presented. No testimony or other facts of record showed that any of these departments had experienced difficulties in the performances of their duties as a result of traffic congestion in the affected area. In fact, Reef Road meets or exceeds generally accepted standards regarding recommended dimensions of streets. Furthermore, no testimony was offered to show how the parking restrictions, limited to one side of a small portion of Reef Road, could realistically solve the problems identified in the petition. In addition, the court was concerned that the traffic survey, on which the commission at least in part based its action, was conducted during hours that were not the subject of the subsequent parking restrictions.

On the basis of all of this evidence, the court concluded that the petition was “not motivated by any considerations of public safety whatsoever.” The court further concluded that the “conduct of the commission was more directly concerned with the regulating, adverse or otherwise, of the business of the plaintiff . . . an objective for which the traffic commission was not empowered, unless the regulation corrected an obvious public need or purpose. This has not been shown by any available testimony.”

In addition to concerns regarding emergency vehicle access to lower Reef Road, the conditions affecting public welfare and safety identified by the commission that it sought to regulate through the parking restrictions also included noise and congestion caused by pedestrian activity in the area of lower Reef Road. While these concerns are legitimate concerns for the exercise of a municipality’s police power, the exercise of those powers is arbitrary and unreasonable unless there exists a direct relationship between the conduct sought to be controlled and the regulated activity. Here, the offending conduct, namely, the gathering of people in the street and on the sidewalks of this neighborhood, is not directly related to automobile parking. The power to regulate parking is part of the power to regulate the use and flow of vehicular traffic. Problems related to the activities of pedestrian crowds are not the legitimate concern of a local traffic authority, but fall instead within the purview of the exercise of other police powers. See, e.g., General Statutes §§ 53a-181 (breach of peace), 53a-181a (creating a public disturbance), 53a-182 (disorderly conduct), 53a-182a (obstructing free passage). Once the town of Fairfield permitted the plaintiff to use his property for commercial purposes, it was clear that traffic, vehicular and pedestrian, on lower Reef Road was going to increase. While commercial development may bring with it certain undesirable consequences, only those problems related to the use of the streets by motor vehicles and the flow of traffic caused by such activity can be rationally related to any regulation approved by a local traffic authority.

Because the means adopted here did not bear directly on the concerns that the commission sought to address, the trial court correctly concluded that the purpose of the regulation was to affect adversely the plaintiffs business. The fact that the evidence showed that there has been a decrease in the number of complaints to the police and a freer movements of traffic subsequent to the adoption of the parking restrictions is of no moment. Since the problems being attacked by the commission were not shown to have anything to do with the use of the streets by motor vehicles as opposed to the conduct of individuals who own or operate them, the solution to those problems could not legitimately involve restrictions on the use of the streets by motor vehicles. Consequently, as determined by the trial court, the parking restrictions approved by the commission were, under the circumstances of this case, unreasonable and beyond the valid exercise of police powers conferred on that public body.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 14-313 provides in pertinent part: “Any person aggrieved by any order or regulation made by any traffic authority under the provisions of this chapter, relating to . . . the establishment of parking restrictions or ... by the performance of any act pursuant to any provision of this chapter, may take an appeal therefrom to . . . the superior court for the judicial district in which it is located. ... A written notice of such appeal, addressed to such traffic authority, shall be deposited with, or forwarded by registered or certified mail to, such traffic authority at least ten days before the return day thereof. Upon such hearing, such court or board shall determine whether the order or regulation appealed from is reasonable, and shall thereupon sustain or revoke such order or regulation.”

       The full text of the “Letter of Request” read as follows: “We, the undersigned residents of Reef Road, between One Rod Highway and Fairfield Beach Road, in the town of Fairfield, Connecticut, do hereby request that the Police Commission explore the possibility of restricting parking to only one side of Reef Road between One Rod Highway and Fairfield Beach Road, either by local or a time basis.
      “We ask that this be done as we feel that during the night time periods, -a public safety hazard exists for the following reasons:
      1. Traffic congestion along with bumper to bumper on street parking during certain hours, impairs access for Fire Department response as well as other emergency services to our homes along this section of Reef Road.
      2. Reef Road is the main and most direct route for emergency services such as the Fire Department, to the western end of Fairfield Beach Road. Traffic congestion and bumper to bumper on street parking, with back ups to One Rod Highway, jeopardizes and could result in delays to those residents also.
      3. Traffic and present parking in this area would make it impossible for a number of Fire Department vehicles to pass each other and position themselves at the same time in the event of a large, fast spreading marsh fire, which is a common occurrence.
      4. During the periods when traffic and parking are excessive, large groups of people can be found walking and gathering the streets, further making access, as well as driving by the public, quite impossible and dangerous.
      5. Crowding around parked vehicles during and after the large parties that have plagued the area, further obstructs passage through lower Reef Road, as well as being a source of noise and litter such as broken beer bottles, etc.
      6. The high density of both people and structures in this portion of Reef Road, along with the close proximity of homes to each other, make all the more vital unimpaired or undelayed access for Fire Department services.
      “It should be noted, again, that generally the congestion and access problems occur at night for various reasons. With that in mind, we ask that use of restricted parking based on a time period, much like the parking restrictions implemented on streets surrounding Fairfield High School, be given special consideration.

        “We feel that restricted parking on one side of the street during these critical periods, would greatly help improve both access and safety hazards that now exist, yet still allow street parking on both sides during the noncritical daytime hours.”

       Minutes of the August 9,1989 commission meeting reflect the following results of the survey: “28-houses in favor, 3 no signature, 6 not for it, 7 not available.” Evidence before the trial court showed that the plaintiff was not apprised of the petition or the request made to the commission until after its action which is the subject of this appeal.

       At the August 9 meeting, the commission also approved a “no parking” order affecting portions of Fairfield Beach Road on both sides of its intersection with Reef Road. These parking restrictions are not the subject of this appeal.


author: Landau, J.

text:
    State of Connecticut v. Donald Chapman
    (10624)
    Norcott, Landau and Heiman, Js.

      Argued April 29
    decision released July 21, 1992

      Ira B. Grudberg, with whom was Thomas W. Ude, Jr., for the appellant (defendant).

      Lawrence J. Tytla, assistant state’s attorney, with whom, on the brief, was C. Robert Satti, Sr., state’s attorney, for the appellee (state).
   Landau, J.

The defendant, Donald Chapman, appeals from a judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (l). On appeal the defendant claims that (1) his amnesia rendered him incompetent to stand trial, (2) the trial court’s charge to the jury improperly enlarged the offense of sexual assault in the first degree, (3) the trial court improperly failed to admit statements made by the victim to the defendant to show their effect on the defendant’s state of mind, and (4) the trial court improperly referred to the defendant’s “misstatements” in its charge to the jury on consciousness of guilt. We agree with the defendant’s second claim. Although this issue is dispositive, we will address the first claim to the extent it is likely to arise on retrial of this case.

On the basis of the evidence presented at trial, the jury could reasonably have found the following facts. The defendant is the owner of the Highland Horse Farm in Ledyard and the victim is a young woman who purchased a horse from the defendant and worked at the farm to subsidize her board payments for that horse. On the evening of March 2,1990, the victim and another young woman arranged to spend the night at the farm with the defendant because a mare was about to foal. During the course of that evening, the defendant made a number of lewd comments to the victim.

The victim and the other young woman fell asleep on a couch in the lounge of the farm at about 1 a.m., on March 3, 1990. The defendant woke the victim at about 3 a.m. and asked her to go into the office with him. The victim, believing the defendant was waking her because the mare was ready to foal, followed the defendant into the office. Once in the office, the defendant told the victim to sit on the floor. When she sat down, the defendant grabbed at her pants, ripped them off and pushed her back onto the floor. The victim struggled with the defendant before he sexually assaulted her. Afterward, the defendant told her to be quiet, threw her pants back at her and left the office. After waiting a short while, the victim returned to the lounge and crawled back onto the couch with the other young woman.

The next day, the victim told the young woman what had occurred during the night. The women then told the parents of the victim’s friend, who suggested that she contact the police. The victim contacted the police and gave a statement describing the events of the prior evening, in which she implicated the defendant. As a result of this incident, the defendant was charged with, and convicted of, sexual assault in the first degree. The trial court imposed a sentence of fourteen years suspended after seven years. From this sentence and conviction, the defendant has appealed to this court.

In his second claim on appeal, the defendant argues that the trial court unconstitutionally enlarged the offense with which he was charged and permitted the jury to convict him on the basis of a theory of liability that was neither charged by the state nor supported by the evidence when the court instructed the jury that it could convict him of sexual assault in the first degree if it found that he had compelled the victim to engage in sexual intercourse by either the use of force against her, or the threat of use of force. Although General Statutes § 53a-70 (a) (1) creates liability under both theories, the state, in its information, alleged that the defendant had violated the statute only by the use of force. The defendant claims that the trial court’s instruction effectively permitted the jury to convict him on the basis of an uncharged theory of liability, violating his rights to be informed of the nature and cause of the accusation against him as guaranteed under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. State v. Franko, 199 Conn. 481, 488-89, 508 A.2d 22 (1986); State v. Trujillo, 12 Conn. App. 320, 326, 531 A.2d 142, cert. denied, 205 Conn. 812, 532 A.2d 588 (1987); State v. Foshay, 12 Conn. App. 1, 24-28, 530 A.2d 611 (1987).

The state maintains that it was clear that the theory-on which the state prosecuted the defendant was that the defendant compelled the victim to submit to sexual intercourse by the use of force. The state argues that the jury instruction, when viewed from the standpoint of its effect on the jury in guiding it to a proper verdict, could not have misled the jury into believing that the defendant compelled the victim to engage in sexual intercourse by the threat of use of force. See State v. Williams, 202 Conn. 349, 362, 521 A.2d 150 (1987).

“ ‘The sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution guarantee a criminal defendant the right to be informed of the nature of the charge against him “with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise, and ... to enable him to plead his acquittal or conviction in bar of any future prosecution for the same offense ” State v. Williams, 27 Conn. App. 654, 668, 610 A.2d 672 (1992), quoting State v. Scognamiglio, 202 Conn. 18, 22, 519 A.2d 607 (1987). Because compulsion by the use of force and compulsion by the threat of use of force are two methods of committing one offense; State v. Franko, supra, 490; State v. Secore, 194 Conn. 692, 698, 485 A.2d 1280 (1984); the defendant’s conviction under either theory of liability would bar subsequent prosecution for the same offense.

“On more than one occasion, [both this court and our Supreme Court have] stated that ‘[w]here a person may have been convicted under more than one statutory alternative, the judgment cannot be supported unless the evidence was sufficient to establish guilt under each statutory provision which the trier may have relied upon.’ State v. Marino, 190 Conn. 639, 650-51, 462 A.2d 1021 (1983); State v. Thompson, 197 Conn. 67, 74, 495 A.2d 1054 (1985); State v. Asherman, 193 Conn. 695, 730, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985); State v. Reid, 193 Conn. 646, 666, 480 A.2d 463 (1984); see State v. Silveira, 198 Conn. 454, 459, 503 A.2d 599 (1986).” State v. Williams, supra, 202 Conn. 363; State v. Reyes, 19 Conn. App. 695, 702-704, 564 A.2d 309, cert. denied, 213 Conn. 803, 567 A.2d 833 (1989); see Leary v. United States, 395 U.S. 6, 31-32, 89 S. Ct. 1532, 23 L. Ed. 2d 57 (1969). It is well established that where, as here, the trial court’s charge includes statutory language as to both the use of force and the threat of use of force, either of which may be an element of the crime of sexual assault in the first degree, and the information restricts the offense charged to use of force and no evidence is introduced on the threat of use of force, a trial court’s instruction to the jury on the threat of use of force as a disjunctive element of sexual assault is improper. See, e.g., State v. Belton, 190 Conn. 496, 502, 461 A.2d 973 (1983); State v. Franko, supra, 488-89; State v. Newton, 8 Conn. App. 528, 513 A.2d 1261 (1986).

The substituted information charged the defendant with the crime of sexual assault in the first degree in that the defendant “attempted to, and did compel, the victim to engage in sexual intercourse by the me of force against said victim.” (Emphasis added.) The trial court, in its charge to the jury, instructed that “a person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the me of force against such person or by the threat of the me of force against such person which reasonably causes such person to fear physical safety. In order to commit the crime of sexual assault in the first degree the state must prove beyond a reasonable doubt that . . . the defendant compelled the victim to engage in sexual intercourse either by the me of force or by threat of the use of force which caused the victim to reasonably fear physical injury to herself. ... If you find the required sexual intercourse has been proven beyond a reasonable doubt, you must next determine whether the defendant used or threatened the use of force. ” (Emphasis added.) By instructing the jury on the threat of use of force portion of General Statutes § 53a-70 (a) (1), the trial court authorized the jury to consider this theory of criminality, thereby implying that there was a factual question for it to resolve under that section of the statute. The state concedes that there was no evidence to support this theory of liability. The court has a duty not to submit to the jury in its charge any issue on which the evidence would not reasonably support a finding. State v. Diggs, 219 Conn. 295, 298-302, 592 A.2d 949 (1991); Batick v. Seymour, 186 Conn. 632, 641, 443 A.2d 471 (1982); State v. Williams, supra, 202 Conn. 364; State v. Estrada, 26 Conn. App. 641, 659-60, 603 A.2d 1179, cert. denied, 221 Conn. 923, 608 A.2d 688 (1992). We cannot presume, as the state contends, that the jury rejected this issue because of the absence of evidence. See State v. Reid, supra, 667 n.22.

The trial court, therefore, improperly instructed the jury on a statutory alternative for which there was no supporting evidence. Accordingly, the judgment must be set aside and a new trial ordered. See State v. Williams, supra, 202 Conn. 363-64; State v. Marino, supra.

We will address the defendant’s first claim, that his amnesia rendered him incompetent to stand trial, to the extent it is likely to arise on retrial. See State v. Mooney, 218 Conn. 85, 125 n.30, 588 A.2d 145, cert. denied, U.S. , 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991); Esposito v. Presnick, 15 Conn. App. 654, 661, 546 A.2d 899, cert. denied, 209 Conn. 819, 551 A.2d 755 (1988). The following additional facts are necessary to our resolution of this claim. At the time the defendant was arrested and charged with sexually assaulting the victim, he was extremely agitated, brandishing a gun and threatening to commit suicide. Subsequent to his arrest, the defendant was transferred to Natchaug Hospital, where he was treated first as an inpatient and later as an outpatient. While at Natchaug Hospital, the defendant reported an inability to recall a three month period prior to his hospitalization, including the date on which he allegedly assaulted the victim. The defendant was diagnosed as suffering from psychogenic amnesia from late December, 1989, until early March, 1990.

On May 2, 1990, the defendant filed a motion, pursuant to General Statutes § 54-56d, for the court to order a competency examination of the defendant. The trial court granted the motion on May 21, 1990, and the examination was conducted on June 5,1990. A competency hearing was held on July 2,1990, at which the report of the clinical team that examined the defendant was introduced into evidence. The report concluded that, at the time of the examination, the defendant was able to understand the proceedings against him and to assist counsel in his defense. The trial court found the defendant competent to stand trial.

The case proceeded to trial in May, 1991, ten months after the trial court ruled on the defendant’s competence to stand trial, and nearly one year after the defendant was examined by the clinical team. At the time of trial, the defendant neither renewed his claim regarding his competence to stand trial nor requested a contemporaneous examination to determine his level of competence in May, 1991.

Connecticut law provides that a defendant “is not competent to stand trial ‘if he is unable to understand the proceedings against him or to assist in his own defense.’ ” State v. DeAngelis, 200 Conn. 224, 229, 511 A.2d 310 (1986), quoting General Statutes § 54-56d. Here, the defendant does not contest his ability to understand the proceedings against him. Rather, he claims that his amnesia impaired his ability to assist counsel in the preparation of his defense.

Under our law, a defendant is presumed to be competent. General Statutes § 54-56d (b); State v. Lewtan, 5 Conn. App. 79, 82, 497 A.2d 60 (1985). Where competence is contested, however, General Statutes § 54-56d (b) places the burden of proving lack of competence on the party raising the issue. Here, the defendant challenged his competency to stand trial, and thus he bore the burden of proving that, at the time of trial, he was unable to understand the proceedings against him or assist in his defense. The defendant did not sustain this burden. In the absence of a renewal of his motion at the time of trial or a request for a contemporaneous examination, there is no evidence demonstrating the defendant’s lack of competence to stand trial in May, 1991. Neither we nor the trial court can speculate on the state of the defendant’s mental condition in May, 1991. On retrial, in order for the defendant to put in issue his competence to stand trial, he must present evidence that, at the time he is to be tried, he is incapable of either understanding the proceedings against him or assisting in his own defense. See Gold v. Warden, 222 Conn. 312, 317-18, 610 A.2d 1153 (1992). Because the defendant did not present the trial court with evidence that in May, 1991, he was not competent to stand trial, the trial court had no basis on which to conclude that the defendant was anything but competent.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       General Statutes § 53a-70 (a) provides in pertinent part: “A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . . .”

       We conclude that the defendant’s remaining claims do not merit review.

       The defendant properly preserved this claim for appellate review by taking an exception to this portion of the trial court’s instruction.

       General Statutes § 54-56d (b) provides: “presumption of competency. A defendant is presumed to be competent. The burden of proving that the defendant is not competent by clear and convincing evidence and the burden of going forward with the evidence are on the party raising the issue. The burden of going forward with the evidence shall be on the state if the court raises the issue. The court may call its own witnesses and conduct its own inquiry.”


author: Freedman, J.

text:
    State of Connecticut v. Maurice Washington
    (10159)
    Daly, Freedman and Cretella, Js.
    Argued May 4
    decision released July 21, 1992

      Alfred J. Onorato, for the appellant (defendant).

      Marjorie Allen Dauster, deputy assistant state’s attorney, with whom, on the brief, were Eugene Callahan, state’s attorney, Steven Weiss, supervisory assistant state’s attorney, and Abram Heisler, law student intern, for the appellee (state).
   Freedman, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of burglary in the third degree in violation of General Statutes § 53a-103a, possession of burglar’s tools in violation of General Statutes § 53a-106 and interfering with a police officer in violation of General Statutes § 53a-167a. The defendant claims that (1) the trial court’s instruction on flight as consciousness of guilt incorrectly stated the law, misled the jury and improperly commented on his failure to testify, and (2) the prosecutor, during closing argument, improperly commented on the defendant’s failure to testify. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At approximately 2 p.m. on January 8,1991, the owner of a house at 101 Greenwich Avenue in Stamford entered her house and discovered a burglar in the process of breaking in. She immediately called the police. The police arrived at the scene where one of the responding officers, Scott Duckworth, found the defendant standing inside an open window at the back of the house. The defendant, who was wearing a tan jacket and light blue gloves, slid through the window and, when both Duckworth and another officer at the scene, Colin Morris, ordered him to stop, he ran from the officers. After a brief chase, the defendant escaped by scaling an eight foot fence. With the help of backup officers, Morris and Duckworth sealed off the area and continued their search for the defendant. Both Morris and Duckworth had recognized him as Maurice Washington. During the search, Morris found a tan jacket and a pair of light blue gloves on the ground. Approximately fifteen feet from the gloves and jacket was an entryway to a house, which was covered with a sheet or towel. The officers found the defendant inside the entryway, crouched down and sweating, and wearing a sweatshirt but no jacket. Another officer who had joined the search drew his gun and told the defendant not to move. When the defendant disregarded the order and started to move, Morris stepped into the entryway to seize the defendant and a struggle ensued. Eventually, the defendant was taken outside, placed on the ground and handcuffed. A subsequent search of the tan jacket revealed a screw driver and a pry bar or nail puller in the jacket pocket.

In a substitute information, the state charged the defendant with burglary, possession of burglar’s tools, and interfering with a police officer. The defendant did not testify at trial. The court instructed the jury, at the state’s request, that it could consider the defendant’s flight from the scene as tending to prove consciousness of guilt. The jury returned a verdict of guilty on all counts.

The defendant raises several challenges to the trial court’s instruction on flight as consciousness of guilt. He claims that the instruction given was an incomplete and misleading statement of the law, that the trial court improperly failed to limit the jury’s consideration of flight as consciousness of guilt to the burglary and possession of burglar’s tools charges, and that the jury’s improper consideration of flight as consciousness of guilt on the interfering charge may have misled the jury as to the other two charges. He also claims that, in giving the instruction, the trial court improperly commented on the defendant’s failure to testify by stating that “[f]light, if unexplained, tends to prove consciousness of guilt.”

The defendant failed to raise any objection to the instruction he now challenges. In fact, the defendant even failed to request any other charge regarding flight as consciousness of guilt. Nevertheless, he argues that these claims are entitled to review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The defendant can prevail on his unpreserved constitutionally based claims only if the following four conditions are met: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” Id.

It is by now well established in Connecticut that “[t]he defendant’s flight, when considered together with all the facts of the case, may justify an inference of the accused’s guilt. State v. Rosa, 170 Conn. 417, 433, 365 A.2d 1135, cert. denied, 429 U.S. 845, 97 S. Ct. 126, 50 L. Ed. 2d 116 (1976).” State v. Fernandez, 27 Conn. App. 73, 89-90, 604 A.2d 1308 (1992). “Flight is a form of circumstantial evidence.” State v. Piskorski, 177 Conn. 677, 723, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979). “Trial courts [therefore] are justified, in appropriate cases, in instructing the jury regarding the inferences to be drawn from evidence of flight.” State v. Fernandez, supra, 90.

A claim challenging an instruction that mandates a particular inference adverse to the defendant may sufficiently implicate constitutional rights to satisfy the second condition of State v. Golding, supra. State v. Smith, 219 Conn. 160, 165, 592 A.2d 382 (1991). “A jury charge in which the court removes from the jury’s consideration an issue that is one of the essential elements of the crime, and thereby relieves the state of the burden of proving every element beyond a reasonable doubt, would violate the holding of Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979).” State v. Tillman, 220 Conn. 487, 503, 600 A.2d 738 (1991).

A proper instruction on flight as consciousness of guilt, however, merely identifies a permissive inference that the jury might draw from the defendant’s conduct. State v. Smith, supra. “An instruction about consciousness of guilt is [therefore] not so directly related to an essential element of the crime as to warrant plenary discussion of whether ‘the claim is of constitutional magnitude alleging a violation of a fundamental right.’ State v. Golding, supra, 239-40; see State v. Smith, [supra, 166].” State v. Tillman, supra, 504. Furthermore, language in the instruction that states that “flight, if unexplained, tends to prove consciousness of guilt” has been approved by the Connecticut Supreme Court and has been found not to violate a criminal defendant’s constitutional right. State v. Holloway, 209 Conn. 636, 650-52, 553 A.2d 166, cert. denied, 490 U.S. 1071, 109 S. Ct. 2078, 104 L. Ed. 2d 643 (1989); State v. Bowens, 24 Conn. App. 642, 651, 591 A.2d 433, cert. denied, 220 Conn. 906, 593 A.2d 971 (1991).

Here, contrary to the defendant’s assertion, the instruction did not create a mandatory inference. Rather, it is clear that “[t]he instruction merely identifies a permissive inference that the jury might draw from the defendant’s [flight], an item of circumstantial evidence.” State v. Smith, supra. The trial court, in its charge, specifically stated: “The flight of a person accused of a crime is a circumstance which when considered together with all of the facts of the case may justify a finding of the defendant’s guilt. However, flight, if shown, is not conclusive. It is to be given the weight to which you, the jury, think it is entitled under the circumstances.” (Emphasis added.) The trial court also instructed: “If you find that he was fleeing the scene for the purpose of avoiding apprehension, you may consider it as evidence of his consciousness of guilt. It is up to you to give the evidence the weight to which you think it is entitled.” (Emphasis added.) With respect to the defendant’s claim that use of the word “unexplained” improperly comments on his failure to testify, the trial court specifically instructed: “The defendant has not testified in this case. An accused person is under no obligation to testify in his own behalf. He has a constitutional right not to testify. You may not draw any unfavorable inference from the accused’s failure to testify.”

Because the instruction was proper under Connecticut law, did not create a mandatory inference adverse to the defendant, and did not improperly comment on the defendant’s failure to testify, the defendant cannot prevail on his multifaceted attack on the charge. “The defendant’s claim is . . . properly viewed as evidentiary rather than constitutional in significance. Unpreserved nonconstitutional claims such as this ‘do not warrant special consideration simply because they bear a constitutional label.’ State v. Golding, supra, 240.” State v. Smith, supra, 166. The defendant has not met the second Golding prong and thus we decline to review this unpreserved claim.

We also decline to afford plenary review to the defendant’s claim that the trial court’s failure to instruct the jury that it could not use his flight as tending to prove his consciousness of guilt with respect to the interfering with a public officer charge. Even if this claim were of constitutional magnitude, the defendant cannot satisfy the third Golding condition, namely, that a constitutional violation clearly exists and clearly deprived the defendant of a fair trial. “In reviewing a constitutionally based challenge to the court’s instructions to the jury, we must examine the charge as a whole to determine whether it is reasonably possible that the jury was misled by the challenged instruction. . . . The charge is not to be judged in artificial isolation from the overall charge.” (Citations omitted; internal quotation marks omitted.) State v. Falcon, 26 Conn. App. 259, 269, 600 A.2d 1364 (1991), cert. denied, 221 Conn. 911, 602 A.2d 10 (1992).

It is not reasonably possible that the jury was misled into believing that it could consider the defendant’s flight as consciousness of guilt on the interfering charge. The evidence was clear that the defendant fled only from the scene of the burglary and not the apprehension, from which the interfering charge arose. It also is not reasonable to conclude that the jury believed that the instruction permitted it to use the interfering as consciousness of guilt of the other two charges. The plain language of the court’s instruction makes clear that it was flight “from the scene of the alleged crime” that could be considered by the jury as tending to prove consciousness of guilt. We conclude that the jury could not have reasonably mistaken this reference to the scene of the crime as the scene of the interfering charge rather than the scene of the burglary. Nowhere in the instruction did the court suggest that a guilty verdict on the interfering charge could be used as tending to prove the defendant’s guilt on the other two charges.

The defendant also challenges the following remark made by the prosecutor during closing argument: “Officer Duckworth was at one point five to eight feet away from the [defendant]. He had his gun drawn, pointed at Mr. Washington. He was face to face with him. And he knew him, because he had given him a ride in his car twice before. That testimony of Officer Duckworth is uncontroverted." (Emphasis added.)

The defendant claims that a single use of the word uncontroverted “necessarily must be understood by the jury to be a comment on the failure of the accused to testify. It is, therefore, constitutionally prohibited.” The defendant failed to object to this remark by the prosecutor, but now seeks review under State v. Golding, supra. An examination of the defendant’s claim, however, fails to reveal a constitutional violation that clearly deprived him of a fair trial and thus he cannot prevail on this claim.

“Comment by the prosecuting attorney . . . on the defendant’s failure to testify is prohibited by the fifth amendment to the federal constitution. Griffin v. California, 380 U.S. 609, 615, 85 S. Ct. 1228, 14 L. Ed. 2d 106 (1965).” State v. Menzies, 26 Conn. App. 674, 695, 603 A.2d 419, cert. denied, 221 Conn. 924, 608 A.2d 690 (1992). In its closing argument, however, “the state may properly call to the attention of the jury any portion of the evidence that stands uncontradicted. Such a comment becomes objectionable only when it focuses the attention of the jury on the failure of the defendant to testify . . . .” (Internal quotation marks omitted.) State v. Menzies, supra, 696, quoting State v. Walker, 206 Conn. 300, 307, 537 A.2d 1021 (1988). “In determining whether a prosecutor’s comments have encroached upon a defendant’s right to remain silent we have espoused the following criterion. . . . Was the language used manifestly intended to be, or was it of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify? State v. Walker, 206 Conn. 300, 307, 537 A.2d 1021 (1988).” (Internal quotation marks omitted.) State v. Negron, 221 Conn. 315, 325, 603 A.2d 1138 (1992); see also State v. Menzies, supra.

The defendant has failed to present to us any evidence tending to suggest that the prosecutor’s single use of the word uncontroverted was intended to be or was taken by the jury to be a comment on the accused’s failure to testify. Our review of the transcript leads us to the conclusion that the remark would reasonably have been interpreted by the jury as an observation that the defendant failed to either discredit the testimony of Duckworth on cross-examination or through the examination of other witnesses. The prosecutor is not “precluded in argument from commenting on the strength of its case or the weakness of the defense case. . . . The prosecutor is entitled to comment on a defendant’s failure to call witnesses to contradict the factual character of the government’s case ... as well as his failure to support his own factual theories with witnesses. . . .” (Citations omitted; internal quotation marks omitted.) State v. Kluttz, 9 Conn. App. 686, 705-706, 521 A.2d 178 (1987).

“ ‘[A] court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations.’ Donnelly v. DeChristoforo, 416 U.S. 637, 647, 94 S. Ct. 1868, 40 L. Ed. 2d 431 (1974).” State v. Negron, supra, 325-26. Because there was no clear constitutional violation, the defendant cannot prevail on this claim.

Finally, the defendant argues that the trial court’s instruction regarding unexplained flight and the prosecutor’s remark on the “uncontroverted” evidence are direct violations of General Statutes § 54-84, which prohibits comment by either the trial court or the prosecutor on the defendant’s failure to testify. “That statute recognizes only a defendant’s right not to testify, and at his election, to have the jury instructed that they may not draw any unfavorable inference against him for exercising that right.” State v. Holloway, supra, 651. Because, however, we have concluded that there was nothing improper in either the court’s instruction or the prosecutor’s remark, the defendant cannot prevail on these claims.

The judgment is affirmed.

In this opinion the other judges concurred.

       The trial court gave the following instruction on consciousness of guilt: “I am going to give you a brief instruction on a concept that we call in the law consciousness of guilt. Whenever a person is on trial for a criminal offense, it is proper to show the person’s conduct subsequent to the alleged criminal offense which may have been influenced by that act. Here there was evidence in the case to flight or the defendant running from the scene of the alleged crime in this particular case. Flight, when unexplained, tends to prove consciousness of guilt. The flight of a person accused of a crime is a circumstance which when considered together with all of the facts of the case may justify a finding of the defendant’s guilt. However, flight, if shown, is not conclusive. It is to be given the weight to which you, the jury, think it is entitled to under the circumstances. Here there was evidence produced by the state’s witnesses that the defendant fled from the scene of the alleged crime. If you find that he was fleeing the scene for the purpose of avoiding apprehension, you may consider it as evidence of his consciousness of guilt. It is up to you to give the evidence the weight to which you think it is entitled. The defendant has not testified in this case. An accused person is under no obligation to testify in his own behalf. He has a constitutional right not to testify. You may not draw any unfavorable inference from the accused’s failure to testify.”

       We note that in its instruction to the jury, the court stated: “The defendant has not testified in this case. An accused person is under no obligation to testify in his own behalf. He has a constitutional right not to testify. You may not draw any unfavorable inference from the accused’s failure to testify.” Because the jury is presumed, in the absence of a fair indication to the contrary, to have followed the court’s instructions; State v. Ortiz, 217 Conn. 648, 669, 588 A.2d 127 (1991); we would conclude that, even if the remark violated the defendant’s constitutional right not to testify, the violation was harmless beyond a reasonable doubt. The defendant has presented no reasons that indicate that the jury did not follow the court’s instructions, nor can we perceive any.

       General Statutes § 54-84 provides: “(a) Any person on trial for crime shall be a competent witness, and at his or her option may testify or refuse to testify upon such trial. The neglect or refusal of an accused party to testify shall not be commented upon by the court or prosecuting official, except as provided in subsection (b) of this section.
      “(b) Unless the accused requests otherwise, the court shall instruct the jury that they may draw no unfavorable inferences from the accused’s failure to testify. In cases tried to the court, no unfavorable inference shall be drawn by the court from the accused’s silence.”