author: Daly, J.

text:
    State of Connecticut v. Julio Gonzalez
    (5344) (5345)
    Borden, Spallone, and Daly, Js.
    Argued September 30 —
    decision released December 15, 1987

      Brian S. Karpe, with whom, on the brief, were Kimball Haines Hunt and Marcia L. Reed, for the appellant (defendant).

      Geoffrey Marion, deputy assistant state’s attorney, with whom, on the brief, were James G. Clark and Herbert G. Appleton, assistant state’s attorneys, for the appellee (state).
   Daly, J.

The defendant appeals from the judgments of conviction, after a jury trial, of two counts of possession of cocaine with intent to sell by a non-drug-dependent person in violation of General Statutes § 21a-278 (b). On appeal, the defendant claims that the trial court erred in denying the defendant’s motion for a mistrial. We find no error.

The following facts are relevant to this appeal. During the trial court’s charge to the jury, the courtroom needed to be evacuated as the result of a fire alarm. While the courtroom was being evacuated, the trial court instructed the clerk to “stay close to the panel to make sure that they did not discuss or speculate about what had occurred.” The court indicated to the jury “that these things happen from time to time in a building such as this.” At that time, the jury was excused for the day.

On the following day, before the jury was brought back into the courtroom, the defendant’s counsel made a motion for a mistrial. The counsel alleged that during the evacuation the previous day an unidentified deputy sheriff stationed behind the defendant blurted out, “[G]et the cuffs on him, we’ve got to get him downstairs and get him out of here.” The sheriff allegedly-repeated the statement after the defendant’s counsel reprimanded him.

When this incident was brought to the court’s attention, the judge asked the defendant’s counsel whether he wished the court to inquire of the jury. The defendant’s counsel declined the court’s invitation to do so. At that point, a sheriff, who had been stationed near the jury as they left the courtroom the previous day, volunteered to the court that he had not heard the alleged statements, that he had not heard any comments from anyone, and that no jurors had turned around to indicate that they had heard anything. The trial court denied the motion for a mistrial. The court did conduct a general inquiry of the jury concerning the confusing events of the previous day. The trial court asked the jurors if anything which had happened the previous day affected their ability to serve as fair and impartial jurors. The jurors unanimously indicated that nothing had happened to affect their ability to be fair and impartial. The trial court then resumed its charge to the jury, starting over again from the beginning of the charge.

The defendant’s sole claim is that the trial court erred in denying the motion for a mistrial. It is the defendant’s contention that the remarks by the unidentified sheriff infringed upon his constitutional right to a fair trial by diluting the presumption of innocence. We disagree.

The trial court possesses wide discretion in passing on motions for mistrial. State v. Moye, 199 Conn. 389, 395, 507 A.2d 1001 (1986); State v. Jackson, 3 Conn. App. 132, 136, 485 A.2d 934 (1985). A mistrial should be granted “ ‘only where it is apparent to the court that as a result of some occurrence during a trial a party has been deprived of the opportunity for a fair trial.’ ” State v. Jennings, 5 Conn. App. 500, 505, 500 A.2d 571 (1985). This court has quoted Practice Book § 887 numerous times in stating: “The ultimate question on a motion for mistrial is whether there was ‘substantial and irreparable prejudice to the defendant’s case.’ ” State v. Kluttz, 9 Conn. App. 686, 705, 521 A.2d 178 (1987). “Our review, therefore, is limited to determining whether under the circumstances the trial court abused its discretion in refusing to grant . . . the defendant’s motion for mistrial.” State v. Jennings, supra.

The defendant argues that the sheriff’s remarks constituted improper ex parte statements by a court official. See, e.g., Sher v. Stoughton, 666 F.2d 791 (2d Cir. 1981); United States v. Greer, 620 F.2d 1383 (10th Cir. 1980); Tillman v. United States, 406 F.2d 930 (5th Cir.), vacated in part on other grounds, 395 U.S. 830, 89 S. Ct. 2143, 23 L. Ed. 2d 742 (1969). This argument is misplaced because unlike those cases, these remarks, even if heard by the jury, concerned only the fact that the defendant was in custody and did not concern the sheriffs opinion as to the guilt of the defendant.

Thus, this case is analogous to cases in which the defendant claims that a juror inadvertently saw him in handcuffs. See State v. Jackson, 3 Conn. App. 132, 136-37, 485 A.2d 934 (1985). Under this analysis, the defendant’s claim must fail.

This record is far from clear that any juror even heard the remarks. The deputy sheriff nearest to the jurors did not hear them. The court’s general inquiry of the jurors elicited absolutely no indication that the remarks had been heard, and indicated that nothing had happened that affected the jurors’ abilities to be fair and impartial. In fact, the defendant’s counsel subsequently admitted to the trial court in argument that he did not know whether the jurors were paying attention to the remarks, and that he could not say whether they had heard the remarks.

Furthermore, the defendant took no steps to establish that the jurors heard the remarks. He declined the court’s invitation to make a more specific inquiry of the jurors, and he made no request for a hearing to establish whether the remarks were heard. See United States v. Carr, 647 F.2d 867 (8th Cir.), cert. denied, 454 U.S. 855, 102 S. Ct. 303, 70 L. Ed. 2d 149 (1981) (defendant has affirmative burden to show prejudice from possible viewing of defendant in custody by prospective jurors).

In this connection, moreover, we reject the defendant’s claim that the court should have, sua sponte, held a hearing to establish whether the jurors overheard the remarks. This claim is directly contrary to the defendant’s position at trial, where he urged the court to refrain from specific inquiry. See, e.g., State v. Weidenhof, 205 Conn. 262, 275, 533 A.2d 545 (1987), quoting State v. Scognamiglio, 202 Conn. 18, 25, 519 A.2d 607 (1987) (“Action induced by an appellant cannot ordinarily be a ground of error”); State v. Vilhotti, 11 Conn. App. 709, 713, 529 A.2d 235 (1987). By making its general inquiry of the jurors and not highlighting the specific remarks, the court did all that the defendant asked of it, short of the drastic step of declaring a mistrial. Under the circumstances of this case, no more was required. “Because of the uncertainty of whether a juror did [hear the remarks], the [jury’s indication of] a lack of prejudice, and the wholly adequate [steps taken by the trial court], we find no abuse of discretion in the denial of the motion for a mistrial.” State v. Jackson, supra.

There is no error.

In this opinion the other judges concurred.

       In this colloquy, it was disclosed to the court that this sheriff had a slight hearing problem. The sheriff stated, however, that if the statement was made “in a voice which the whole courtroom must have heard it,” as the defendant’s counsel maintained, he would have heard it.

       “The Court: Was there anything that happened in the course of that momentary confusion or interruption that any of you feel, since, you know, we have our two alternates with us, do any of you feel might be troublesome for you or might affect you in any way at all with regard to your deliberations in this case?

        “And I want you to think about it very carefully and raise your hand if you feel that that might be the case because, as you know, that’s one of the reasons we have alternates remain with us until the conclusion of the charge.
      “Is it fair to state, ladies and gentlemen, since I see no hands, that the entire incident that we were involved with yesterday, which was unique and certainly surprising, and anything that happened in connection therewith, did not affect any of you in such a way as to affect your ability to serve as fair and impartial jurors in the deliberations phase of this case?
      “Is that a fair statement?
      “Jurors: Yes.
      “The Court: And so say you all?
      “Jurors: Yes.
      “The Court: Would you raise your hands?
      “All right, the record will note that the jury has indicated unanimously that that’s the situation.” (Emphasis added.)

       During the discussion of the motion for mistrial, counsel for the defendant admitted this in stating: “The only analogy I could make, your Honor, is the situation in which the defendant is seen being cuffed in the courtroom, or led down the stairs . . . . ”

       In reference to whether the jury heard the statement, the defendant’s counsel stated: “I don’t know whether [the jurors] were paying attention, I can’t say that.”


source: Caselaw Access Project

author: Bieluch, J.

license: Public Domain

text:
    Morris Silverstein’s Appeal from Probate
    (5096)
    Dupont, C. J., Bieluch and Norcott, Js.

      Argued September 29 —
    decision released December 15, 1987

      Morris Silverstein, pro se, the appellant (plaintiff).

      Constance L. Epstein, for the appellee (defendant Dorothy Silverstein Mitchell).
   Bieluch, J.

The plaintiff has appealed to this court from the “Certificate of Descent of real estate and other assets of the Estate [of Esther Sarah S. Silver-stein]” issued by the Superior Court following a judgment by stipulation in his appeal from an order and decree of the Probate Court for the district of Andover. By amendment, the appeal was extended to cover rulings of the trial court made subsequent to the filing of this appeal. We find error.

The decedent, Esther Sarah S. Silverstein, died intestate on February 28, 1969, leaving four children as her heirs: Morris Silverstein, Dorothy S. Mitchell, Belle Silverstein and Samuel Silverstein. On March 8, 1969, the plaintiff, Morris Silverstein, was appointed administrator of his mother’s estate. On August 26, 1982, the plaintiff made application to the Probate Court (1) for approval of his administration account, (2) for ascertainment of heirs and distributees, and (3) for an order of distribution. After a hearing, at which objections to the account were made by the plaintiff’s sister, Dorothy S. Mitchell, the Probate Court on January 4,1983, accepted the final account of the plaintiff, but disallowed certain claims, expenses and fees paid by him and ordered their reimbursement to the estate.

The plaintiff appealed to the Superior Court from the probate decree and orders. In his reasons of appeal from the probate decree and orders, the plaintiff alleged aggrievement in the disallowance of certain claims, expenses and fees and in the order for their reimbursement to the estate. A companion appeal was taken by Dorothy S. Mitchell. The Probate Court ordered that notice of these appeals be given to the plaintiff and Mitchell only. The Superior Court at no time made any further order of notice to the two remaining heirs. Mitchell appeared by counsel in the plaintiff’s appeal. The plaintiff appeared by counsel and pro se in the Mitchell appeal. Without notice, however, the two remaining heirs, Belle Silverstein and Samuel Silverstein, appeared pro se in the Mitchell appeal only. They did not participate in the trial of either appeal.

On August 7, 1985, the trial court heard both probate appeals jointly. Only the respective plaintiffs and their counsel were present at the hearing. In the course of the proceedings, a stipulation for judgment was agreed to by these two heirs. The record reveals an extended discussion between the court, counsel and the plaintiff, after which the court approved the various terms proposed by the parties.

The stipulation provided that the trial court approve the administration account as filed in the Probate Court and order the immediate distribution of the real property of the estate to the four heirs in equal shares, after which a partition action would be filed if the heirs could not arrange a mutual buyout between them at an agreed appraisal. In addition, the plaintiff was to file a supplemental account with the Probate Court within ninety days.

Additionally, the personal property was to be divided equally between the heirs, but in case of any disagreement, the Probate Court would be asked to appoint distributors. In a private capacity, the plaintiff was to pay Mitchell $5000 and operate a cider mill located on the real estate until it was partitioned or sold. After discussion of these various terms between the court, counsel and the plaintiff, the oral stipulation was approved by the court.

At one point in the court’s consideration of the proposed judgment, the plaintiff suggested a continuance to consult with the two absent heirs “and find out what their positions are in this.” To this, the court responded that since they had pro se appearances in the Mitchell appeal, “[t]he court will enter judgment without them being a party to the stipulation.” After objection to a continuance by Mitchell’s counsel, the court further concluded that “[t]hey are not [necessary parties] in the opinion of the court, and while the court will accept the stipulation in both of these cases entered into by the parties, judgment may enter in each case in accordance with the stipulation as recited by [counsel for Mitchell] and concurred in by [counsel for the plaintiff] and by Mr. Silverstein and by Mrs. Mitchell. [Counsel for Mitchell] will prepare the judgment file.”

A single judgment file was signed by the court for both actions. In this judgment file, the court found that the heirs of the deceased were listed in the application for administration, and “ORDERED AND DECREED that: Judgment enters in accordance with the stipulation of the parties in accordance with the transcript attached hereto. The rest, residue and remainder of said estate be distributed, transferred and paid over to and among the distributees in accordance with the findings of the Court as indicated above according to the statutes of the State of Connecticut covering intestate estates and MAKE DUE RETURN OF COMPLIANCE with this ORDER.” The relevant sixteen page transcript segment was attached to the judgment file.

The plaintiff moved to open, set aside or modify the judgment. This motion was denied by the court, Kelly, J., on December 30, 1985. Mitchell, on January 10,1986, moved “that the court hear evidence and clarify the stipulation of the parties and enter judgment accordingly.” On January 13,1986, the plaintiff moved for “Judgment in Accordance with Stipulation.” In that motion, he requested that the trial judge, Barry, J., sign an attached judgment file which expressed, in seriatim, the terms of the stipulation for judgment as he understood them from the transcript. The latter two motions which sought a clarification of the judgment were denied by the court, Kelly, J., on January 21, 1986, without referral to the trial court which had rendered the judgment.

Thereafter, on April 11, 1986, the original trial judge issued and signed two certificates of descent for land owned by the decedent and located in Bolton and Columbia. Although signed by a judge of the Superior Court, these certificates of descent were on forms of, and purported to be issued by, the Probate Court for the district of Andover. Each certificate provides the following: “THIS CERTIFIES that as appears from the records of this Court said deceased died on [February 28,1969] and [her] estate has been duly settled in this Court and there is distributed, set out or divided or descends: TO Belle Silverstein, Samuel Silverstein, Dorothy Silverstein Mitchell and Morris Silverstein who take by inheritance all such right, title and interest said deceased had at the time of her death in and to a certain piece or parcel of land [described].” The plaintiff thereafter took an appeal pro se to this court from the “Certificate of Descent of real estate and other assets of the Estate,” issued in relation to his action only.

On a motion for contempt filed by Mitchell, the trial court, Kelly, J., on September 29,1986, although it did not hold the plaintiff in contempt, ordered that he file a supplemental accounting for the period from July 1, 1982, to August 1,1986, within thirty days. On November 14, 1986, the plaintiff amended his appeal to this court to include the trial court’s subsequent ruling.

The plaintiff took no appeal from the judgment of August 7, 1985, rendered on the parties’ stipulation. Although he moved to open, set aside or modify the judgment, he did not appeal from the denial of his motion which occurred on December 30,1985. Nor did he appeal from the double denial on January 21,1986 of Mitchell’s motion for clarification of judgment and his motion for judgment in accordance with his understanding of the oral stipulation. Only when the original trial court issued its probate certificate of descent on April 11, 1986, purporting to effectuate a portion of the stipulated judgment did he appeal to this court, but he then restricted the appeal to his case only. No appeal was taken by him or his sister from any action in her companion suit. Such a factual situation on appeal is without precedent.

At no time did the defendant Mitchell seek to dismiss this appeal for lack of jurisdiction or for untimely appeal. Practice Book § 4056. Such an attack is made by her for the first time in the preliminary argument of her brief. Without supporting argument or citation of authority, she now asserts that the plaintiff is foreclosed from appealing the stipulated judgment (1) because the issuance of the certificates of descent “was an express and essential portion of the stipulation into which Mr. Silverstein had entered,” and (2) because his claim that the trial court lacked subject matter jurisdiction to enter the stipulated judgment was never raised prior to the appeal.

In substance, the plaintiff has appealed from the stipulated judgment rendered on August 7,1985, although his jurisdictional statement states that the appeal is from the “Certificate of Descent of real estate and other assets of the Estate.” Until the preliminary argument in her appeal brief, the defendant Mitchell’s apparent understanding was that the plaintiff’s appeal was properly and timely taken. The defects in the plaintiff’s jurisdictional statement and his late appeal now suggested by the defendant Mitchell are waivable and have been waived by her. Windham Community Memorial Hospital v. Willimantic, 166 Conn. 113, 115, 348 A.2d 651 (1974); LaReau v. Reincke, 158 Conn. 486, 493-94, 264 A.2d 576 (1969). These defects do not void the plaintiffs appeal. We will, therefore, proceed to determine the appeal. See Giordano Construction Co. v. Ross, 182 Conn. 577, 578, 438 A.2d 772 (1980); LaReau v. Reincke, supra; Sackett v. Carroll, 80 Conn. 374, 376, 68 A. 442 (1908).

General Statutes § 45-288 provides that “[a]ny person aggrieved by any order, denial or decree of a court of probate in any matter . . . may appeal therefrom to the superior court . . . .” In all appeals from probate, the appellant shall file reasons of appeal. “[Pleadings shall thereafter follow in analogy to civil actions.” Practice Book § 194. The nature of a probate appeal is not defined either by statute or by the rules of practice. Neither the effect of the appeal on the decree appealed from, nor the scope of the issues presented in the appeal, nor the powers of the appellate court, are indicated by statute or procedural rule of court. The courts, therefore, have clothed “the appeal from probate with very definite characteristics which mark it as a thing peculiar unto itself . . . .” 1 W. Locke & P. Kohn, Connecticut Probate Practice § 186, p. 381. The appeal from probate does not vacate the decree appealed from, nor does it “lift” or surrender the entire matter from the Probate Court into the Superior Court for further proceedings and termination of the estate beyond the order or decree appealed from. “On the contrary, it leaves the matter as it was in the Probate Court, there to be continued with and completed according to law, presenting in the meanwhile to the Superior Court for redetermination, after a retrial of facts, the special and limited issues embraced within the particular decree appealed from. It follows that the Superior Court is without power, on appeal from probate, to proceed through all the forms of a complete settlement of the estate as a prerogative court, and may not consider or adjudicate issues beyond the scope of those proper for determination by the decree being attacked.” (Footnotes omitted.) Id., § 214, p. 438.

The judgment on appeal should affirm or reverse the decree appealed from, in whole or in part, and answer the questions raised by the reasons of appeal. Id., § 220, pp. 449-50. The judicial role for probate appeals was succinctly stated two centuries ago in Case v. Case, Kirby 284, 285 (1787): “It is the province of the Superior Court, on appeals made from decrees of probate, to fix the principles of law, for the direction of the Courts of Probate; but it seems not to be authorized to proceed through all the forms to a complete settlement of estates, as a prerogative court. The execution of the law, as ascertained by the Superior Court, appertains to the courts of probate.” The proper judgment in an appeal from an order or decree should be returned to the Probate Court for further determination and termination of the proceedings in that court. The estate must always be settled in the Probate Court even when its administration is sidetracked or diverted temporarily by an appeal to the Superior Court.

An appeal from a probate order or decree to the Superior Court is not a civil cause of action. It has no more of the ordinary attributes of a civil action than the original proceedings in the court of probate. Slattery v. Woodin, 90 Conn. 48, 50, 96 A. 178 (1915). That pleadings after the reasons of appeal “may thereafter follow in analogy to civil actions”; Practice Book § 194; “expresses the proper status of an appeal from probate, as a special proceeding authorized by statute, but not a civil action. Independently of the language of the rule, appeals from probate are not civil actions because it has always been held that the Superior Court, while hearing appeals from probate, sits as a court of probate and not as a constitutional court of general or common-law jurisdiction. It tries the questions presented to it de novo, but in so doing it is . . . exercising a special and limited jurisdiction conferred on it by the statute authorizing appeals from probate.” Slattery v. Woodin, supra, 50-51.

In a probate appeal, the Superior Court cannot consider events that occurred after the issuance of the order or decree appealed from. Satti v. Rago, 186 Conn. 360, 369, 441 A.2d 615 (1982). The appeal brings to the Superior Court only the order appealed from. The order remains intact until modified by a judgment of the Superior Court after a hearing de novo on the issues presented for review by the reasons of appeal. Id., 364-65. The Superior Court may not consider or adjudicate issues beyond the scope of those proper for determination by the order or decree attacked. Hartford Kosher Caterers, Inc. v. Gazda, 165 Conn. 478, 486, 338 A.2d 497 (1973); Stevens’ Appeal, 157 Conn. 576, 581, 255 A.2d 632 (1969). Inasmuch as the motion for the appeal is made in the Court of Probate and forms a part of the proceedings in that court, no amendment to it may be made in the Superior Court. The Superior Court, therefore, cannot enlarge the scope of the appeal. Sacksell v. Barrett, 132 Conn. 139, 146, 43 A.2d 79 (1945); Canty’s Appeal, 112 Conn. 457, 458, 152 A. 585 (1930); Wildman’s Appeal, 111 Conn. 683, 686, 151 A. 265 (1930).

As to the order or decree appealed from, the jurisdiction of the Superior Court is coextensive with that of the Probate Court in the first instance. “[I]f a de novo trial which will be fully effective is to be granted in the superior court on appeal from a probate decree, the superior court must logically be given the same power as the probate court itself had, including any discretionary power. In other words, after consideration of all evidence presented on the appeal which would have been admissible in the probate court, the superior court should exercise the same power of judgment which the probate court possessed and decide the appeal as an original proposition unfettered by, and ignoring, the result reached in the probate court. . . . We find no sound reason for considering that the probate court has any special expertise in matters which in our case law we have held to fall within its primary or exclusive or sound discretion, or jurisdiction and, consequently, no good reason for considering that the superior court, on appeal, is not ‘as competent to deal with them as the Court of Probate . . . . ’ See Reiley v. Healey, 124 Conn. 216, 222, 198 A. 570 [1938] .... Consequently, we now hold that the foregoing exception to the general rule should be eliminated and that any discretion of the probate court, even though it has been denominated in our cases as sound or primary or exclusive, or as existing in the first instance, passes to the superior court on appeal and is to be exercised by it in an independent determination, without regard to the result reached by the probate court.” Prince v. Sheffield, 158 Conn. 286, 298-99, 259 A.2d 621 (1969). This is now the guiding rule for the Superior Court in a probate appeal.

In Killen v. Klebanoff, 140 Conn. 111, 98 A.2d 520 (1953), the sole question on appeal was the correctness of the Probate Court’s decree ascertaining the heirs at law of an intestate decedent. Since the Superior Court was sitting as a court of limited statutory jurisdiction, and not as a court of general jurisdiction, it was limited to probate powers relating solely to the decree appealed from. For that reason, the Supreme Court held that the Superior Court in the probate appeal to it could not consider an alleged tender of payment under a $3000 settlement agreement not approved by the Probate Court and disclaimed by the plaintiff. Id., 117-18. An analogous procedural posture is presented to us in this review.

The plaintiff in the present case appealed from the Probate Court’s disallowance in part of his final administration account covering the period from the decedent’s death on February 28, 1969, through June 30, 1982. The issues raised in his reasons of appeal concerned only the correctness of the Probate Court’s modification of his account (1) by ordering the repayment of certain sums of money, (2) by disallowing certain administration fees, (3) by disallowing compensation for labor and services performed for the estate, (4) by surcharging interest due to claimants of the estate, and (5) by charging the plaintiff for additional costs attributable to the nonliquidation of assets. These allegations were neither admitted nor denied by defendant Mitchell, but left to the proof of the plaintiff.

The issues raised by the probate appeal were not decided by the trial court. Instead, the court accepted an oral agreement between the plaintiff and defendant Mitchell settling both appeals before the court by a stipulated judgment. The terms of the settlement went beyond the issues raised by the two appeals in that it (1) ascertained the heirs and distributees of the intestate estate, (2) issued, on a Probate Court form and as a Probate Court, two separate certificates of descent of the intestate’s real estate, (3) ordered that the plaintiff pay the defendant Mitchell $5000 in settlement of her complaints against the administrator’s account, and (4) ordered that the plaintiff file a supplemental account for the period beyond that covered in the administration account before the court on appeal. Upon the plaintiff’s failure to file the supplemental account, the defendant Mitchell moved to have the plaintiff found in contempt of court. In lieu of a finding of contempt, the plaintiff was further ordered by the trial court, Kelly, J., on September 29, 1986, to file this supplemental account for the period which it extended to August 1,1986, within thirty days. Before this order, however, the trial court had issued its certificates of descent of real estate on April 11, 1986.

The distribution of intestate estates is governed by General Statutes § 45-273. After payment of all expenses and charges, an intestate estate shall be distributed by the administrator of the estate. General Statutes § 45-273 (a). If an intestate estate consists wholly of real property, the Court of Probate shall issue a certificate of descent to the heirs at law, as provided by § 45-286. “Before a distribution valid for all purposes — one that will put an end to the settlement of the estate and the power of the court — can be made . . . the estate to be distributed must be first ascertained by that court, by the settlement of the administration account, and the deduction of the ascertained expenses and charges. This is a condition precedent to such a distribution as will put an end to the jurisdiction of the Court of Probate over the unsettled administration account.” Mathews’ Appeal, 72 Conn. 555, 559, 45 A. 170 (1900).

In his appeal to this court, the plaintiff concedes that he expressly agreed, together with his attorney, to the stipulated judgment, but he now claims that he could not legally, and should not, have submitted the oral stipulation to the trial court for its approval. The defendant Mitchell maintains that by virtue of the plaintiffs consent, the stipulated judgment cannot now be challenged. She also argues that the Superior Court had jurisdiction to address “the Ml scope of the appeal by resolution of the entire matter upon agreement of the parties.” The supporting cases cited by the defendant, however, concerned stipulated judgments rendered in civil actions, and not in probate appeals.

This case is without parallel or precedent. In a civil suit, although the parties are ordinarily restricted to the issues framed by the pleadings, the parties may, by consent, enlarge the scope of the litigation to include issues not raised in the pleadings. Doublewal Corporation v. Toffolon, 195 Conn. 384, 390-91, 488 A.2d 444 (1985). In a probate appeal, on the other hand, the Superior Court’s jurisdiction is statutory and limited to the order appealed from. The issues presented for review are those defined in the reasons of appeal. The Superior Court cannot consider or adjudicate issues beyond the scope of those proper for determination by the order or decree attacked. This is so even with the consent of the parties to the appeal because the court has subject matter jurisdiction limited only to the order or decree appealed from. Hartford Kosher Caterers, Inc. v. Gazda, supra, 486-87; Stevens’ Appeal, supra, 580-81; Kilim v. Klebanoff, supra, 118; Sacksell v. Barrett, supra, 146; Wildman’s Appeal, supra, 686.

Additionally, all of the heirs at law were not parties to the appeal, even though the stipulated judgment affected their rights in the estate. General Statutes § 45-294 provides: “The court of probate, in allowing an appeal, shall make such order of notice to persons interested as it deems reasonable. When the notice has been given by the appellant and proved to the court to which the appeal is taken, the court may hear the appeal without further notice.” In both the appeal by the plaintiff and that by defendant Mitchell, the only notice ordered by the Probate Court was that directed to be given to the plaintiff and to the defendant Mitchell. Although no notice was ordered given to the two remaining heirs, Belle Silverstein and Samuel Silverstein, as previously noted, they filed pro se appearances in the appeal taken by the defendant Mitchell only. They did not file an appearance pro se or by counsel in the probate appeal taken by the plaintiff and now under consideration in this court. They were not present at the hearing when the stipulated judgment was approved by the trial court.

The statutory notice requirements are not essential to probate appeals. Therefore, the failure to name an adverse party by notice in a probate appeal does not deprive the Superior Court of subject matter jurisdiction. The provision allowing an appeal confers upon the party aggrieved an absolute right of which he cannot be deprived by an omission of the Court of Probate. When the appeal is properly taken and allowed, the jurisdiction of the Superior Court over the cause attaches. That court, however, will not proceed with the appeal until all appellees have had notice of the appeal. Any defect in the notice should be corrected before trial. George v. St. Ann’s Church, 182 Conn. 322, 324, 438 A.2d 97 (1980); Donovan’s Appeal from Probate, 40 Conn. 154, 155-56 (1873); 1 W. Locke & P. Kohn, Conn. Probate Practice § 202, p. 414. No such notice was given to the remaining two heirs, Belle Silverstein and Samuel Silverstein, by the trial court in the plaintiffs appeal, and no appearance was made by them in that action. Notwithstanding their nonappearance in the appeal and at its hearing, the trial court undertook to determine their rights in the estate by a stipulated judgment to which they were not parties and did not give their consent. By this stipulated judgment neither they nor the other heirs can be bound.

The trial court’s assumption of excessive jurisdictional authority is further evident in its disregard of the provisions of General Statutes § 45-231 giving the Courts of Probate the sole power to approve the compromise and settlement of appeals from probate. Section 45-231 (a) provides that “[u]pon application by executors, guardians, conservators, administrators, trustees in insolvency and trustees appointed, or whose appointment has been approved, by the court of probate, the court may, after public notice and hearing, authorize such fiduciaries to compromise and settle any doubtful or disputed claims or actions, or any appeal from probate in favor of or against the estates or persons represented by them.” (Emphasis added.)

The stipulated judgment in the plaintiff’s appeal was predicated on his agreement with the defendant Mitchell only, the remaining two heirs being excluded therefrom by the trial court when it denied the plaintiff’s request for a continuance for their consultation and consideration of the agreement. The public notice and hearing provisions of § 45-231 (a) have as their purpose the requirements of due process in the approval by the Courts of Probate of the compromise and settlement of contested appeals. The Superior Court was without jurisdiction to approve the agreement of the plaintiff with defendant Mitchell and to render stipulated judgment thereon. That jurisdiction rested exclusively with the Probate Court under § 45-231 (a).

We conclude for the above reasons that the trial court exceeded its limited statutory jurisdiction not only as to the scope of review of the plaintiff’s probate appeal, but also in approving the agreement and rendering the stipulated judgment thereon.

There is error, the judgment and certificates of descent are set aside and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 45-286. descent or distribution of real property to be recorded, (a) When the real property of any deceased person, or any part thereof or interest therein, is devised or distributed or set out to the devisee or devisees, heirs or heirs or spouse of such decedent or is legally divided by the voluntary act of all the persons interested therein or descends to the heirs or heirs or spouse of such decedent, the fiduciary of the estate of such decedent shall, within one month thereafter, or, in case of descent to the heir or heirs or spouse of such decedent, within one month after the acceptance by the court of the final administration account of such fiduciary, procure from the judge, clerk or assistant clerk of the court of probate having-jurisdiction of the settlement of the estate of such decedent, and cause to be recorded in the land records of each of the toums in which such real property is situated, a certificate signed by such judge, clerk or assistant clerk. Such certificate shall contain the name and place of residence of each person to whom such real property, or any portion thereof or interest therein, is distributed, set out or divided or descends, and a particular description of the estate, portion or interest distributed, set out or divided or descending to each person.” (Emphasis added.)

       See footnote 1, supra.


author: O’Connell, J.

text:
    State of Connecticut v. Angel Nieves
    (4665)
    Borden, Daly and O’Connell, Js.

      Argued October 8 —
    decision released December 22, 1987

      David A. Moraghan, special public defender, for the appellant (defendant).

      Susan C. Marks, deputy assistant state’s attorney, with whom, on the brief, was Dennis A. Santore, state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from the judgment of conviction, after a jury trial, of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a). He claims the court erred (1) in refusing to allow him to cross-examine his codefendant after the codefendant testified concerning events of the crime involving both of them, and (2) in denying his motion for judgment of acquittal because of insufficiency of evidence to justify conviction. We find no reversible error.

The jury could reasonably have found the following facts. While the defendant and a codefendant; see State v. Garcia, 13 Conn. App. 67, 534 A.2d 906 (1987); were inmates at the Litchfield Correctional Center, they used physical force to compel another inmate to perform sexual acts upon them. In testifying on his own behalf, the codefendant made reference to the defendant’s involvement in the crimes.

I

The defendant’s first claim of error raises the issue of whether a defendant’s right of cross-examination applies only to witnesses called by the state, or is equally applicable to witnesses called by a codefendant, including the codefendant himself. The defendant bases his claim on the confrontation clauses of the federal and state constitutions.

This is a case of first impression in Connecticut, but looking to other jurisdictions, we find that in the seminal case of State v. Crooker, 123 Me. 310, 122 A. 865 (1923), the Maine Supreme Court held that a defendant may cross-examine any witness who offers testimony adverse to him. See annot. 33 A.L.R. 821. Of the few jurisdictions and treatises that have considered the question, all have been in general agreement with the Crooker court. See United States v. Polizzi, 500 F.2d 856, 903 (9th Cir. 1974), cert, denied, 419 U.S. 120 (1975); United States v. Zambrano, 421 F.2d 761, 763 (3d Cir. 1970); State v. Mayberry, 52 N.J. 413, 245 A.2d 481 (1968); State v. Martin, 53 N.M. 413, 209 P.2d 525 (1949); 81 Am. Jur. 2d, Witnesses § 470, p. 447; 5 J. Wigmore, Evidence (Chadbourn Rev.) § 1394, p. 147.

The cases and text writers analogize this right to a party’s conditional right to impeach his own witness, thereby recognizing a right of cross-examination substantially narrower than that applicable to prosecution witnesses. A condition precedent to this special right

In addition to the foregoing constitutional bases, the principle is firmly entrenched in the common law. In 1902, this precise question was decided by the King’s Bench. Rex v. Hadwen, 1 K.B. 581 (1902). Writing for the court, Lord Alverston, C. J., said in part: “That question is, whether, where two prisoners indicted jointly are defended separately, and one elects to give evidence [on his own behalf] . . . and in the course of that evidence inculpates the other prisoner, counsel for the latter prisoner can cross-examine the former, or whether he can only be cross-examined by counsel for the prosecution. . . . [I]t is in the interests of justice that the counsel for the prisoner inculpated should be able to cross-examine. The case may arise where the evidence for the prosecution is so strong against a prisoner that it might not be thought necessary to test strictly the inculpating evidence of the other prisoner.” Id., 583.

The trial court in the present case stated the law correctly, namely, that cross-examination of the codefendant should be barred if the codefendant’s testimony was not adverse to the interests of this defendant. The court misapplied the law, however, because its recollection of the codefendant’s testimony was faulty. The transcript discloses that the codefendant testified that the defendant was “involved in this” and also that the victim had been in the defendant’s cell the night of the assault. This testimony had some degree of probative value against the defendant and he was entitled to an opportunity to cross-examine the codefendant concerning it.

The state concedes that, under the facts of this case, it was error for the trial court to deny the defendant the opportunity to cross-examine his codefendant. This concession notwithstanding, the state argues that in view of other evidence in the case it was harmless error. The defendant, on the other hand, contends that it is constitutionally impermissible to find such an error harmless and that automatic reversal is mandated. We agree with the state.

“In Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), the [United States Supreme] Court held that since a defendant had a right to cross-examine a co-defendant it was reversible error to admit evidence of a co-defendant’s confession where that co-defendant did not take the stand and subject himself to such cross-examination.” United States v. Zambrano, supra, 763. Bruton, however, does not purport to overrule the conclusion of Chapman v. California, 386 U.S. 18, 22, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), that in the setting of a particular case some constitutional errors may be deemed harmless and not require automatic reversal. The later cases of Harringtons. California, 395 U.S. 250, 89 S. Ct. 1726, 23 L. Ed. 2d 284 (1969), and Delaware s. Van Arsdall, 475 U.S. 673, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986), held denial of crossexamination subject to harmless error analysis. “[N]ot all ‘trial errors which violate the Constitution automatically call for reversal.’ ” Harrington s. California, supra, 251-52, quoting Chapman s. California, supra, 23. Both cases utilized a case by case examination of the facts to determine whether the error was harmless beyond a reasonable doubt. In VanArsdall, the court considered a variety of factors such as the importance of the testimony to the state’s case, whether the testimony was cumulative, the presence of corroborating or contradictory testimony, the extent of cross-examination permitted and

the strength of the state’s case, in determining whether the error affected the reliability of the fact-finding process. Delaware v. Van Arsdall, supra, 1438. In addition, the court refused to accept the argument that reversible error must be found because it was impossible to predict how the jury would have reacted if it had heard the excluded testimony. Id.

In the present case, the codefendant’s testimony added only slight, if any, strength to the state’s case against this defendant, whose own testimony was consistent with that of the codefendant. Both defendants admitted the sexual acts with the victim, but claimed that they were commercially bartered transactions for cigarettes and accordingly consensual.

The defendant is unable to articulate any specific incriminating aspect of the codefendant’s testimony other than that placing him at the scene of the assaults. The jury, however, learned of this from the defendant’s own testimony as well as from other witnesses.

The defendant argues that Connecticut has adopted a rule under our state constitution which is narrower than the federal rule exemplified in the Van Arsdall case. According to this argument, any refusal to allow cross-examination is prejudicial per se and not subject to harmless error analysis. State v. Esposito, 192 Conn. 166, 471 A.2d 949 (1984), which is relied on by the defendant, does not support this proposition. The Esposito court spoke in language that clearly left room for discretionary analysis of the situation, and the following year the harmless error doctrine for errors of constitutional import was expressly recognized in State v. Bruno, 197 Conn. 326, 335-36, 497 A.2d 758 (1985), cert, denied, 475 U.S. 1119, 106 S. Ct. 1635, 90 L. Ed. 2d 181 (1986); see also id., 336 (Shea, J., concurring).

Under the circumstances of this case we conclude that the court’s error in denying cross-examination of the codefendant was harmless beyond a reasonable doubt.

II

The defendant’s second claim of error is that the evidence was insufficient to sustain a conviction of either count of sexual assault in the first degree. The defendant claims that the testimony of the victim concerning force exerted by the defendant is conflicting and unreliable. It is rudimentary that we do not retry the facts or evaluate the credibility of witnesses. Bowman v. Williams, 5 Conn. App. 235, 238, 497 A.2d 1015 (1985). The standard is whether “ ‘[t]he jury could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt.’ ” State v. Dumlao, 3 Conn. App. 607, 613, 491 A.2d 404 (1985), quoting State v. Giorgio, 2 Conn. App. 204, 211, 477 A.2d 134 (1984). In addition, the evidence must be given a construction most favorable to sustaining the jury’s verdict. State v. Dumlao, supra. Applying that standard to this case, we find there was sufficient evidence, if believed by the jury, to sustain the convictions.

There is no error.

In this opinion the other judges concurred.

       A pretrial motion to sever the cases was withdrawn and the denial of a subsequent motion, made at trial, has not been assigned as error.

       U.S. Const., amend.; Conn. Const., art. I, § 8.

       For Connecticut’s evolving rule permitting impeachment of a party’s own witness, see State v. Whelan, 200 Conn. 743, 747, 513 A.2d 86, cert, denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), and State v. Graham, 200 Conn. 9, 17, 509 A.2d 493 (1986). of cross-examination is that the testimony of the witness actually must be opposed or contrary to the position of the defendant. United States v. Mercks, 304 F.2d 771, 772 (4th Cir. 1962); State v. Mason, 215 S.C. 457, 56 S.E.2d 90 (1949); People v. Braune, 363 Ill. 551, 2 N.E.2d 839, 841 (1936).

       “If . . . such consent [to examination of psychiatric records] is not forthcoming then the court may be obliged to strike the testimony of the witness.” (Emphasis added.) State v. Esposito, 192 Conn. 166, 179-80, 471 A.2d 949 (1984); but see In re Robert H., 199 Conn. 693, 711, 509 A.2d 475 (1986), for an indication to the contrary.


text:
    State of Connecticut v. William Garcia
    (4666)
    Borden, Daly and O’Connell, Js.
    Argued October 8 —
    decision released December 22, 1987

      Richard S. Cramer, for the appellant (defendant).

      Susan C. Marks, deputy assistant state’s attorney, with whom, on the brief, was Dennis A. Santore, state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from the judgment of conviction, after a jury trial, of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a). He claims that the court erred (1) in giving the “Chip Smith” jury charge as part of the initial jury charge, and (2) in denying his motion for judgment of acquittal because of the insufficiency of the evidence to justify conviction. We find no error.

The jury could reasonably have found the following facts. While the defendant and a codefendant; see State v. Nieves, 13 Conn. App. 60, 534 A.2d 1231 (1987); were inmates at the Litchfield Correctional Center, they used physical force to compel another inmate to perform sexual acts upon them.

The defendant’s first claim is that the court erred in giving the “Chip Smith” instruction as part of its initial charge instead of deferring until the court had been made aware of a disagreement among the jurors. See State v. Smith, 49 Conn. 376 (1881). We disagree. Our Supreme Court has repeatedly approved the giving of this instruction as part of the initial instruction prior to a jury deadlock. State v. Ralls, 167 Conn. 408, 425, 356 A.2d 147 (1974); State v. Schleifer, 102 Conn. 709, 725, 130 A. 184 (1925).

The defendant’s brief also suggests that the language of the trial court was more coercive than that previously approved by our Supreme Court. This claim was not raised in the trial court where the objection was to the timing of the instruction only and not to its form. Absent exceptional circumstances, this court need not consider claims of error not distinctly raised at trial. Practice Book §§ 315, 4185; State v. Narvaez, 3 Conn. App. 166, 168-69, 485 A.2d 1351 (1985). We find no such exceptional circumstances here.

The defendant next claims that the trial court erred in its denial of his motion for judgment of acquittal which he filed on the ground of insufficiency of the evidence. Although the evidence was conflicting, there was sufficient evidence, if believed by the jury, to support the conviction. We cannot retry the case. Public Works Supply Co. v. Eveready Machinery Co., 11 Conn. App. 79, 525 A.2d 988 (1987).

There is no error.

In this opinion the other judges concurred.

       The relevant portion of the jury charge is as follows: “Finally, ladies and gentlemen, I will conclude with this instruction. As I have stated, the verdict of a jury in a criminal case must be unanimous, one with which all of you agree. Usually, there are some differences of opinion by jurors when they first retire. As reasonable people, they discuss these differences and try to reconcile them. If a jury cannot come to an agreement upon a verdict, the case usually must be tried again before a different jury. A second trial imposes a severe hardship upon the parties involved, the State and the accused. You must, therefore, make every reasonable effort to come to a verdict. You must listen to what other jurors say. You must not hesitate to reconsider your own opinion. If few of the other jurors do share your viewpoint, you should carefully examine its soundness. All of you have heard the same evidence and the same explanation of the law. As reasonable people, you should ultimately be able to come to some agreement upon a verdict.
      “On the other hand, the verdict must be one which each juror considers just in his or her own mind. A juror cannot desert his or her firm and honest conviction simply in order to reach an agreement which he or she regards as wrong.”


author: Borden, J.

text:
    State of Connecticut v. Clarence Carey, Jr.
    (5797)
    Borden, Stoughton and Foti, Js.
    Argued November 3 —
    decision released December 22, 1987

      Robert W. Clark, with whom, on the brief, were Thomas J. Keramidas and Jane Cable, for the appellant (defendant).

      Geoffrey Marion, deputy assistant state’s attorney, with whom was James G. Clark, assistant state’s attorney, for the appellee (state).
   Borden, J.

The defendant appeals from the judgment of conviction for possession of narcotics in violation of General Statutes § 21a-279 (a), following a conditional plea of nolo contendere. His plea of nolo contendere was conditioned upon his right to appeal the trial court’s denial of his motion to suppress certain evidence found in his possession pursuant to a search incident to an arrest without a warrant. The dis-positive issue is whether there was probable cause to arrest the defendant prior to the challenged search. We find no error.

The following evidence was adduced at the hearing on the defendant’s motion to suppress. Officers William Discordia and Clemente Delacruz, and Trooper Sidney Luther, all then assigned to the statewide narcotics task force, were conducting surveillance of suspected narcotic activity at an apartment building located on Federal Street in New London. The building had been the scene of prior drug activities and trafficking, and arrests had been made for narcotics offenses. On this occasion, Discordia was positioned on the stairway between the second and third floors, while Delacruz and Luther were positioned on the third floor.

The defendant and Eric Malloy entered the building. Luther testified that he heard one say to the other, “What do you want, coke or dope?” to which the other responded, “Coke.” On the basis of this conversation, Luther believed that a sale was about to take place. Neither of the other officers heard this conversation. One of the individuals then entered an apartment, while the other waited in the hallway. The testimony of Luther suggested that it may have been Malloy who went into the apartment.

Soon thereafter, Discordia observed the defendant and Malloy in the second floor stairwell. Malloy was holding a clear plastic vial of what appeared to be “crack,” a cocaine derivative. Discordia testified that he believed, at that point, either that the defendant had given the vial to Malloy or that Malloy was showing the vial to the defendant. Each of the officers, including Discordia, testified that he did not witness any other events which normally accompany a drug transaction, namely, an exchange of money, or an exchange of possession of drugs. Delacruz testified that he believed the defendant was only being shown the vial and “that a sale was about to take place.” Luther also testified that he “didn’t know if the drug transaction had actually occurred,” and that he believed that the defendant was “in the position of the receiver.”

At that point, the officers came out of hiding. Discordia grabbed the vial from Malloy, placed him under arrest, and searched him. Delacruz and Luther informed the defendant that he was not free to leave. The court determined, and neither party disputes, that this constituted an arrest of the defendant. Delacruz and Luther ordered the defendant to empty his pockets. The defendant removed from his pocket, among other things, a matchbook with a glassine bag sticking out of it. The glassine bag appeared to contain heroin, and was seized by Delacruz and Luther. The defendant was then placed under arrest for possession of the heroin.

At the conclusion of the hearing on the defendant’s motion to suppress the heroin seized from him, the court determined that there was probable cause to arrest the defendant prior to searching him and denied the defendant’s motion. On appeal, the defendant argues that, at the time of their search of him, the police lacked the necessary probable cause to arrest him, as there existed no facts known to the officers to conclude that he was engaged in any wrongdoing. Accordingly, he contends that the search incident to that arrest violated his right to be free of unreasonable searches and seizures under the federal and state constitutions. We disagree.

“We note at the outset that a search conducted without a warrant issued upon probable cause is per se unreasonable, subject only to a few specifically established and well delineated exceptions. ... It is the state’s burden at trial to establish the exception. . . . If evidence obtained without a warrant was obtained as a result of a valid search and seizure incident to a lawful arrest, such evidence was not illegally obtained and is admissible.” (Citations omitted.) State v. Lizotte, 11 Conn. App. 11, 17, 525 A.2d 971, cert, denied, 204 Conn. 806, 528 A.2d 1154 (1987). The issue before us, then, is whether the search of the defendant was incident to a lawful warrantless arrest.

A police officer is authorized to arrest, without a warrant, “any person who the officer has reasonable grounds to believe has committed or is committing a felony.” General Statutes § 54-If (b); State v. Dennis, 189 Conn. 429, 431, 456 A.2d 333 (1983). “[T]he term ‘reasonable grounds’ as used in the statute is to be equated with probable cause.” State v. Dennis, supra.

“In order to establish probable cause, it is not necessary to produce a quantum of evidence necessary to convict. . . . Probable cause exists when the facts and circumstances within the knowledge of the officer and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution to believe that a felony has been committed.” (Citations omitted.) State v. Cobuzzi, 161 Conn. 371, 376, 288 A.2d 439 (1971), cert, denied, 404 U.S. 1017, 92 S. Ct. 677, 30 L. Ed. 2d 664 (1972). “In dealing with probable cause ... as the very name implies, we deal with probabilities. These are not technical; they are factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Brinegar v. United States, 338 U.S. 160, 175, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949). “Probable cause is a flexible common sense standard. It does not demand that a belief be correct or more likely true than false. Texas v. Brown, 460 U.S. 730, [742,] 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983).” Three S. Development Co. v. Santore, 193 Conn. 174, 175, 474 A.2d 795 (1984); see also Babiarz v. Hartford Special, Inc., 2 Conn. App. 388, 393, 480 A.2d 561 (1984).

“In its oral memorandum of decision the court made only limited factual findings and legal conclusions. We, therefore, must look to all the evidence produced in support of its decision.” State v. Mitchell, 7 Conn. App. 46, 49, 507 A.2d 1017 (1986), aff d in part and rev’d in part on other grounds, 204 Conn. 187, 527 A.2d 1168, cert, denied, U.S. , 108 S. Ct. 293, 98 L. Ed. 2d 252 (1987). “ ‘Furthermore, when we test the quantum of evidence supporting probable cause, it is not the personal knowledge of the arresting officer but the collective knowledge of the law enforcement organization at the time of the arrest which must be considered.’ ” State v. Dennis, supra, 432, quoting State v. Acquin, 187 Conn. 647, 656-57, 448 A.2d 163 (1982), cert, denied, 463 U.S. 1229, 103 S. Ct. 3570, 77 L. Ed. 2d 1411 (1983).

When the defendant was arrested and ordered to empty his pockets, the police were aware that he was present in a building known as a site of frequent drug transactions, and that, immediately prior to Malloy holding a vial of crack in the defendant’s presence, the defendant and Malloy had discussed a cocaine transaction. The defendant argues that this information, at most permitted the police to conclude that a drag transaction was about to take place, and that they therefore lacked probable cause to believe that he had committed any crime. This information, along with Discordia’s belief that Malloy may have received the vial from the defendant, however, was sufficient evidence to establish probable cause that the defendant had just engaged in a sale of a narcotic substance in violation of General Statutes § 2la-278.

Even if we assume, arguendo, that the police could only have reasonably concluded that a drug transaction was about to take place, the defendant’s argument that the officers had no basis to arrest him is without merit. That a drug transaction was about to take place does not mean that a crime had not already been witnessed by the officers. At the time that the vial of crack was seized from Malloy, the police had before them facts which, taken together, were sufficient to justify a determination of probable cause that the defendant had committed the crime of attempted possession of narcotics in violation of General Statutes §§ 53a-49 and 21a-279.

“Essentially an attempt under § 53a-49 (a) is an act or omission done with the intent to commit some other crime. The rationale is that while a defendant may have failed in his purpose, his conduct is, however, criminally culpable, and if carried far enough along causes a sufficient risk of harm to be treated as a crime in and of itself. . . . The act or acts must be something more than mere preparation for committing the intended crime; they must be at least the start of a line of conduct which will lead naturally to the commission of a crime which appears to the actor at least to be possible of commission by the means adopted.” (Citations omitted.) State v. Green, 194 Conn. 258, 271-72, 480 A.2d 526 (1984), cert, denied, 469 U.S. 1191, 105 S. Ct. 964, 83 L. Ed. 2d 969 (1985).

The conversation heard by Luther showed that the defendant and Malloy intended to engage in a drug transaction. The defendant’s request, as a potential buyer, that Malloy procure “coke” for him and his meeting with Malloy soon thereafter in the stairwell where Malloy procured a vial of crack and showed it to the defendant, “constitut[ed] a substantial step in a course of conduct planned to culminate in his commission of the crime” of possession of narcotics, and was “strongly corrobative of the [defendant’s] criminal purpose” to do so. General Statutes § 53a-49. The police therefore had probable cause to believe that the defendant had already completed the crime of attempted possession of narcotics when they intervened. See People v. Mociel, 39 Colo. App. 149, 568 P.2d 68 (1977); People v. Duprey, 98 App. Div. 2d 110, 469 N.Y.S.2d 702 (1983). This justified their arrest of him and the subsequent search incident to that lawful arrest.

There is no error.

In this opinion the other judges concurred.

       The fourth amendment to the United States constitution provides in pertinent part: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .’’This constitutional right is made applicable to the states through the fourteenth amendment to the United States constitution. Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961).

       Article first, § 7 of the Connecticut constitution provides in pertinent part: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures . . . .” Although the defendant relies on both the federal and the state constitutions, he offers no separate analysis of the Connecticut constitution as a basis for different treatment of the federal and state constitutional claims. We decline to undertake such analysis. See State v. Camerone, 8 Conn. App. 317, 321 n.l, 513 A.2d 718 (1986).


author: Stoughton, J.

text:
    State of Connecticut v. John Peterson
    (5295)
    Spallone, Daly and Stoughton, Js.
    Argued October 15 —
    decision released December 22, 1987

      Joette Katz, public defender, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Gary W. Nicholson, assistant state’s attorney, for the appellee (state).
   Stoughton, J.

The defendant was convicted of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), having weapons in a motor vehicle in violation of General Statutes § 29-38, and possession of a sawed-off shotgun in violation of General Statutes § 53a-211 (a). He makes the following claims on appeal: (1) his right to due process and a fair trial as guaranteed by the due process clause of the fourteenth amendment of the United States constitution was undermined by the state’s improper argument, which allegedly relied on his felony record for substantive purposes; (2) his conviction of possession of a sawed-off shotgun pursuant to General Statutes § 53a-211 (a) violated his right not to be punished twice for the same offense as guaranteed by the double jeopardy clause; (3) the court’s instructions on robbery in the first degree effectively enlarged count one of the information, allowing him to be convicted of a crime with which he had never been charged in violation of the sixth amendment to the United States constitution and article first, § 8 of the Connecticut constitution; and (4) his conviction under General Statutes § 29-38 must be dismissed because in order to convict the defendant under that statute the defendant must possess a firearm for which no proper permit had been issued and, because one cannot obtain a permit for a sawed-off shotgun, the defendant was convicted for failure to obtain that which it is impossible to obtain. We have considered the defendant’s first, second, and fourth claims and find them to be without merit. With respect to the third claim, we find error.

The jury could reasonably have found the following facts. On August 6,1985, at approximately 9:45 p.m., Kathleen Hiro loaned her Thunderbird automobile to James Gilcrest, Aron Tucker, and Anthony Tucker to go to a McDonald’s. While in Hiro’s Thunderbird, Gil-crest solicited the Tuckers about “pulling a robbery.” Both brothers refused. Gilcrest then drove to his house, went inside, and returned carrying a blue gym bag. After dropping Anthony Tucker off at a newsstand, Aron Tucker and Gilcrest drove around looking for the defendant, finding him at a pool hall. Aron Tucker left the car and saw the defendant, Gilcrest, and two others, Horatio Gordon and James Rawling get into the Thunderbird and drive off. Aron Tucker was told to wait and the others would return to give him some money.

The men drove to Andover Street where Gilcrest stopped the car. Gilcrest got out of the car and walked across the street to where the victim, Derrick Taylor, stood outside his house. Gordon and the defendant followed, the defendant carrying the gym bag with him.

Taylor testified that he was standing outside of his home at 168 Andover Street when a car he identified as Hiro’s pulled up with four black men in it. Gordon, Gilcrest and an unidentified black man approached him. Gilcrest and Gordon each carried handguns and the third man had a sawed-off shotgun. Gordon and Gil-crest proceeded to take the victim’s wallet and some cash. Rawling testified that when the three returned to the car, Gordon carried a black gun, Gilcrest carried a small silver gun, and the defendant carried a sawed-off shotgun. Rawling further testified that the three had some money and four bags of marihuana. The four drove off and a short time later saw a policeman in a cruiser who gave chase. The officer had heard a dispatch concerning a robbery committed by four armed black males in a light-colored Ford Thunderbird, Connecticut Registration 4F-8142. The Thunderbird accelerated upon being pursued by the officer. After being pursued at high speed for about one and one-half miles, the Thunderbird crashed into a tree. As the officer got out of the car, he observed gunfire coming from the Thunderbird and returned fire.

Rawling testified that, after crashing into the tree, all four men got out of the car, Gilcrest and the defendant leaving their guns in the car. Gordon still had his gun and fired four shots at the officer. The four men fled in various directions. Rawling took a cab home that night.

At about midnight, Joseph Kirkland saw the defendant and Gilcrest walking along Chopsy Hill Road. The defendant offered Kirkland money for a ride downtown. Kirkland agreed to give the men a ride to Beardsly Terrace. As he drove, Kirkland noted an unusual number of police cars in the area. The men said that they had unknowingly been in a stolen car and were being pursued by police. At about 1:30 a.m. that morning, Aron Tucker saw the defendant and Gilcrest. Gilcrest told Tucker that he had left the keys in the Thunderbird while he went into a store and the car had been stolen. Earlier, however, Tucker had spoken to Gordon, who told him they had committed a robbery and that Gilcrest and Gordon were being chased by the police.

The officer did not get a good look at the four people who fled the car, but testified that they appeared to be black. A sawed-off shotgun, found to be in working order, and a small chrome-plated automatic handgun were found in the rear seat of the Thunderbird. An automatic Walther PPKS pistol was seized from Gordon’s apartment.

The defendant took the stand and testified that he, Gilcrest, Gordon and Rawling had all been in a car being driven by Gilcrest. When the car stopped at Andover Street, all, save for himself, left the car. He testified that he could not see what the three were doing and had never seen a gun of any sort that evening. He did not know why the car was pursued by the police. He ran away after the crash because he did not know who was firing at them and feared for his life. He also denied ever speaking with Kirkland that evening.

I

In his first claim, the defendant attacks remarks concerning his criminal record made by the assistant state’s attorney during his closing argument. The defendant had attacked the credibility of Rawling, a key state’s witness, suggesting that he had manufactured his testimony to exculpate himself because he was on probation. The assistant state’s attorney’s remarks were made in response to this attack. There was no objection at the time and there was nothing abusive about the remarks. The assistant state’s attorney simply pointed out that while Rawling had a record, so did the defendant, and he suggested that this was a factor which might be considered in weighing the defendant’s credibility.

The defendant contends that the record adequately supports a claim that he has been deprived of a fundamental constitutional right and a fair trial, and that his case presents an “exceptional circumstance” under which an appellate court will consider a claim that has not been considered in the trial court. State v. Evans, 165 Conn. 61, 69-70, 327 A.2d 576 (1973). We disagree.

The remarks were not such as to support a claim that the defendant had clearly been deprived of a fundamental constitutional right and a fair trial, and, by his failure to object, the defendant has waived his right to a review of this claim. State v. Chace, 199 Conn. 102, 107, 505 A.2d 712 (1986); see also State v. Tyler-Barcomb, 197 Conn. 666, 674, 500 A.2d 1324 (1985).

II

The defendant claims that his rights under the double jeopardy clause of the United States constitution, as applied to the states through the fourteenth amendment, and the common law rule against double jeopardy were violated. His claim is that possession of a sawed-off shotgun is a lesser included offense in robbery in the first degree as charged and in the offense of having weapons in a motor vehicle as charged. “It is established that double jeopardy attaches in situations where multiple punishments are imposed for the same offense in a single trial. . . . ‘The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.’ . . . Here the state concedes that the same act or transaction underlay both of the statutory offenses charged. The analysis then becomes one of deciding whether, restricting our examination to the statutes, the information and the bill of particulars . . . the proof of a violation of one statute necessarily requires proof of a violation of the other.” (Citations omitted.) State v. McCall, 187 Conn. 73, 89-90, 444 A.2d 896 (1982); see Blockberger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932). “The test for determining whether one violation is a lesser included offense in another violation is whether it is possible to commit the greater offense without having first committed the lesser.” State v. Brown, 163 Conn. 52, 61-62, 301 A.2d 547 (1972).

Each of the offenses charged requires proof of some fact which neither of the others require. To prove robbery in the first degree, proof of a larceny by force is required. To prove the charge of weapons in a motor vehicle, it was necessary to prove that the defendant knowingly had in a motor vehicle occupied by him a weapon without a legal permit therefor. To prove possession of a sawed-off shotgun, the state was required to prove that the defendant owned, controlled or possessed a shotgun the barrel of which was less than eighteen inches in length. There is no merit to this claim.

Ill

The defendant’s third claim is that the trial court, in reading General Statutes § 53a-134 (a) (2) in its entirety during its instructions, allowed the jury to convict him on a theory of liability under that statute which was not alleged in the information and against which he did not put forth a defense. The defendant acknowledges that he took no exception to the court’s instruction, but maintains that his claim is reviewable under State v. Evans, supra. We, therefore, must determine if, on the record, the defendant was deprived of a fundamental constitutional right and a fair trial. State v. Thurman, 10 Conn. App. 302, 306-307, 523 A.2d 891 (1987).

The information by which the defendant was charged alleged that he stole certain property from Derrick Taylor and “in the course of the commission of the crime was armed with a deadly weapon, to wit: a sawed-off shotgun.” General Statutes § 53a-134 (a) (2) provides that a person is guilty of robbery in the first degree if he or another participant in a robbery commits the crime while armed with a deadly weapon. The record indicates that the trial court read § 53a-134 (a) (2) in its entirety during its instruction on robbery. Thus, the defendant contends, he was deprived of notice of the crime with which he was charged, in violation of the sixth amendment to the United States constitution and article first, § 8 of the Connecticut constitution.

“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 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. Sumner, 178 Conn. 163, 168,422 A.2d 299 (1979); State v. Rogue, 190 Conn. 143, 154, 460 A.2d 26 (1983).” State v. Franko, 199 Conn. 481, 490, 508 A.2d 22 (1986).

It is clear that General Statutes § 53a-134 (a) (2) creates liability for first degree robbery if one robs another while armed or participates in a robbery in which others are armed. See State v. Secore, 194 Conn. 692, 698, 485 A.2d 1280 (1984). To prevail, however, the defendant must demonstrate that the court’s instruction resulted in unfair surprise or somehow prejudiced the preparation of his defense. State v. Franko, supra. The defendant concedes that the instruction did not cause him unfair surprise, but maintains that it prejudiced him in that the defense he set forth was insufficient to meet a charge that he participated in a robbery in which others were armed. We agree.

The present situation is ostensibly similar to two recent cases decided by our Supreme Court. In State v. Franko, supra, the defendant was accused of sexual assault in the first degree. The jury was instructed that it could convict the defendant if it found that he had compelled the victim to engage in sexual intercourse either by the use of force or by threat of the use of force. The state, in its information, had alleged only that he violated General Statutes § 53a-70 (a) by use of force. The court held that there was no reversible error since there was sufficient evidence to convict the defendant under both theories and, if the jury had believed his defense of consent on the victim’s part, he would have been acquitted under either theory. Since the defendant suffered no prejudice, the conviction could stand. Similarly, in State v. Scognamiglio, 202 Conn. 18, 519 A.2d 607 (1987), the defendant was accused of felony murder, and the trial court, reading the applicable statute in its entirety, instructed the jury that it could convict the defendant if it found he caused the death of the victim during a robbery or flight therefrom. The state, in its information, alleged that the death occurred during the course of the robbery. Again, the court found no reversible error, because there was sufficient evidence presented to convict the defendant under both theories and his defense, that another person with him had killed the victim, would have been adequate under either theory. Id., 23.

The case before us is readily distinguishable in two important respects. First, the state produced no evidence that the defendant participated in the robbery in any capacity other than as the man who brandished a shotgun while Taylor was robbed. The state’s contention at all times was that the defendant, not Rawling, accompanied Gordon and Gilcrest as Taylor was robbed. The second, related concern is that here the defendant was allegedly involved in a robbery with two other individuals. Had the jury believed the defendant’s testimony in its entirety, he clearly would have been acquitted of the robbery charge in light of the court’s fully adequate instruction on intent. It is well established, however, that jurors are free to believe some, all, or none of a witness’ testimony. See, e.g., Fritz v. Madow, 179 Conn. 269, 275, 426 A.2d 268 (1979). Here, the jury may have believed that the defendant remained in the car, yet disbelieved that he knew nothing whatsoever about his companions’ plans to commit a robbery. No relevant instructions were given on what “participation” in a robbery consists of or on robbery by aiding and abetting pursuant to General Statutes §§ 53a-8 and 53a-134 (a) (2). It is quite possible that the jury may have concluded that his very presence in the car under these circumstances somehow constituted “participation” in the robbery. Thus, the court’s reading of the statute in its entirety created the possibility that the jury convicted the defendant without ever resolving whether the defendant or Rawling held a shotgun on Taylor during the incident. The question in such situations is whether there was a reasonable possibility that the jury was misled. State v. Torrence, 196 Conn. 430, 436, 493 A.2d 865 (1985); State v. Grant, 6 Conn. App. 24, 27, 502 A.2d 945 (1986). On these facts, we find there was such a possibility. In light of the testimony and the instructions, the jury could have concluded that the defendant possessed a sawed-off shotgun that night, sufficient to convict him under both General Statutes §§ 29-38 and 53a-211 (a), yet did not hold a shotgun as the victim was robbed. There is error.

IV

The defendant finally claims that he should not have been convicted of the crime of weapons in a motor vehicle because the crime, as charged, does not exist. He claims that because there was testimony that a sawed-off shotgun may not be purchased legally, and that under General Statutes § 53a-211 no sawed-off shotgun may be possessed except under federal or state license, it is not possible to obtain a permit for such a weapon. He argues, therefore, that General Statutes § 29-38 applies only to a weapon for which a permit may be issued. We do not read into § 29-38 any requirement that the weapon must be one for which a permit may be issued. The clear intent of the legislation is to make it a crime to have a weapon in a motor vehicle, although one who has a permit to do so is permitted to carry the weapon with him.

The defendant also claims that because a sawed-off shotgun is not one of several firearms listed in § 29-38, it is not included in the phrase “any other dangerous or deadly weapon or instrument.” The shotgun had been tested by the police and found to be operable. It was beyond any question a dangerous or deadly weapon or instrument. See State v. Cari, 163 Conn. 174, 183, 303 A.2d 7 (1972). There is no error as to this claim.

There is error as to the first count charging robbery in the first degree only, as to that count the judgment is set aside and the case remanded for a new trial.

In this opinion the other judges concurred.

       “[General Statutes] § 53a-134. robbery in the first degree: class b felony, (a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime: (1) Causes serious physical injury to any person who is not a participant in the crime; or (2) is armed with a deadly weapon; or (3) uses or threatens the use of a dangerous instrument; or (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged. Nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, robbery in the second degree, robbery in the third degree or any other crime.
      “(b) Robbery in the first degree is a class B felony provided any person found guilty under subdivision (2) of subsection (a) shall be sentenced to a term of imprisonment of which five years of the sentence imposed may not be suspended or reduced by the court.”

       The transcript provides: ‘ ‘The testimony that he didn’t know what was going to happen, simply is unbelievable. It’s not worthy of belief. You know, you heard alot about Mr. Rawling’s record. There is no question, he has got a record. Unfortunately nice people don’t hang around with other people who commit crimes, it’s a fact of life. But, you got a situation here where Mr. Peterson is not exactly a pillar of the community. He has got four felony convictions within the last five years. He has been five years in jail on each of these convictions. He has done his time. Sure, he is not on probation. The Court didn’t see him fit to give him probation. He had to do his time in jail. He has had his bite of the apple and now it is time to start doing time. In the last conviction he got was a burglary conviction. So, he is no stranger to the court system either. And, he got released in July 12th of 1985 and a couple of weeks after, we have this situation. And, that is the type of person that Mr. Dunn says is credible, someone who has got— committed four felonies within the last five years, gets out of jail and within two or three weeks, finds himself in this situation. That is the type of person you should believe.”

       Similar charges were also pending against Rawling for the same incident.

       There was an extended colloquy among the prosecutor, defense counsel and the court during testimony by a ballistics expert from the state police concerning the defendant’s liability under the theory of Gordon or Gilerest being armed. No evidence was presented, however, which would have allowed the jury to consider the defendant’s liability under that theory.

       The transcript provides:
      “The Court: Gentlemen, I have two questions from the jury. The first reads ‘If Peterson was in the car and did not know what was going on, i.e., robbery about to take place, is Peterson guilty of robbery in the first degree?’ ”


author: Spallone, J.

text:
    Peter E. Klopp et al. v. Thermal-Sash, Inc., et al.
    (5758)
    Dupont, C. J., Spallone and Stoughton, Js.
    Submitted on briefs September 14 —
    decision released December 22, 1987

      Peter Upton filed a brief for the appellant (defendant David C. Colella).

      Louis J. Ruggiero filed a brief for the appellees (plaintiffs).
   Spallone, J.

The defendant David C. Colella appeals from the judgment of the trial court holding him liable to the plaintiffs for the sum of $2119. We find no error.

The plaintiffs, Peter and Maureen Klopp, brought this action against the three defendants, Thermal-Sash, Inc., Thermal Products of Connecticut, Inc., and Colella, to recover on a stipulated judgment in the amount of $2119 rendered against Thermal-Sash on October 27,1983. The record reflects that at the time that judgment was rendered, the defendant Colella was the president of Thermal-Sash but that soon thereafter, the company forfeited its charter and Colella formed Thermal Products, which provided the same basic services as Thermal-Sash.

The complaint in the present action consisted of two counts: (1) that all three defendants participated, together and individually, in the transfer of assets from Thermal-Sash to Thermal Products with the intent of avoiding the debt due to the plaintiffs; and (2) that the two corporations were merely an instrumentality of the defendant Colella, and that there has been such a commingling of assets between the three defendants that either Thermal Products or Colella could be held accountable for the judgment against Thermal-Sash. After a trial to the court, judgment was rendered in favor of both Thermal-Sash and Thermal Products, but against the individual defendant Colella. In its memorandum of decision, the court found that Colella had deliberately engaged in behavior intended to hinder the collection of this debt.

The defendant’s sole claim in his appeal to this court is that the trial court erred by “piercing the corporate veil” and holding the defendant liable for a debt generated by Thermal-Sash. The trial court found that Thermal Products did not assume the debts of Thermal-Sash and, therefore, was not liable for the judgment previously rendered. It further found that the individual defendant allowed Thermal-Sash to forfeit its corporate charter in order to avoid this, and other debts, thereby causing him to be personally liable. “Since the court found that the individual [defendant was] directly liable for the debt incurred, it is unnecessary for this court to reach the issue of piercing the corporate veil.” Zolan, Bernstein, Dworken & Klein v. Milone, 1 Conn. App. 43, 45, 467 A.2d 938 (1983).

Beyond the support for this specific finding, we cannot go. The memorandum of decision provides neither the legal nor factual bases upon which the court rested its decision, and the defendant took no action to rectify this deficiency. As both this court and our Supreme Court have frequently reminded litigants, “[t]he appellant bears the burden of presenting an adequate appellate record and generally we will not remand a case to correct a deficiency the appellant should have remedied. Barnes v. Barnes, 190 Conn. 491, 493-94, 460 A.2d 1302 (1983). Where the basis of the trial court’s decision is unclear, proper utilization of the motion for articulation serves to dispel any ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision. Id., 494. The defendant could have requested such clarification by moving for articulation pursuant to Practice Book § [4051], but it did not.” Pantlin & Chananie Development Corporation v. Hartford Cement & Building Supply Co., 196 Conn. 233, 239, 492 A.2d 159 (1985); see also Caracansi v. Caracansi, 4 Conn. App. 645, 648-49, 496 A.2d 225 (1985); Urban v. Leggio, 1 Conn. App. 226, 228, 470 A.2d 1226 (1984).

There is no error.

In this opinion the other judges concurred.

       Only the defendant David C. Colella has appealed to this court. We will refer to him in this opinion as the defendant.

       The original action against Thermal-Sash was for the recovery of the $2119 deposit paid by the plaintiffs for the installation of insulated glass replacement windows. The sales agreement was signed by both plaintiffs and David C. Colella.

       The second count sets forth allegations involving the individual defendant only, claiming that the corporate defendants were mere instrumentalities and the alter egos of the defendant, David C. Colella. Under Connecticut law, the corporate veil may be pierced by use of either the “instrumentality” or “identity” rules. See Saphir v. Neustadt, 177 Conn. 191, 413 A.2d 843 (1979). Although the “identity” or “alter-ego” doctrine has been primarily applied to reach beyond the veil to another corporation, it may also be employed to hold an individual liable. Falcone v. Night Watchman, Inc., 11 Conn. App. 218, 221, 526 A.2d 550 (1987), citing Saphir v. Neustadt, supra, 209-10; Zaist v. Olson, 154 Conn. 563, 575, 227 A.2d 562 (1967).

       The court’s finding that Colella was personally liable leads us to conclude that the court did not impose liability on Mm vicariously, under the second count, as claimed by the defendant. “When a corporation is nonexistent or insolvent, creditors are likely to attempt to find another entity or individual to answer for its debts. One method often tried is to impose liability on the corporation’s shareholders, not because the shareholders are independently personally liable, but because the shareholders are considered one and the same as the corporation and thus liable in the same way and to the same extent as is the corporation.” (Emphasis added.) 7 Z. Cavitch, Business Organizations § 154.03 [1].