author: Heiman, J. Daly, J.,

text:
    State of Connecticut v. Anthony Cain
    (8056)
    (8057)
    Daly, Norcott and Heiman, Js.

      Argued January 18
    decision released August 20, 1991

      Richard Emanuel, assistant public defender, with whom, on the brief, were G. Douglas Nash, public defender, Suzanne Zitser, assistant public defender, and Kent Drager, assistant public defender, for the appellant (defendant).

      Harry Weller, assistant state’s attorney, with whom, on the brief, were Mary Galvin, state’s attorney, Frank McQuade, supervisory assistant state’s attorney, and Kathryn St. Amand, law student intern, for the appellee (state).
   Heiman, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70, burglary in the third degree in violation of General Statutes § 53a-103, and one count of harassment in violation of General Statutes § 53a-183 (a) (3). The defendant claims that the trial court improperly (1) denied his motion to strike certain testimony despite the state’s failure to produce relevant 911 and police broadcast tapes, (2) denied his motion for severance, (3) violated his right to due process by allowing the elicitation of evidence of his invocation of his constitutional rights, (4) denied his motion for a judgment of acquittal on the burglary and harassment counts despite insufficient evidence, (5) instructed the jury on the elements of sexual assault in the first degree, and (6) refused to exclude a state’s exhibit. We affirm the judgment of the trial court.

The following facts are necessary for the resolution of this case. From 1985 until December, 1987, the defendant and the victim were romantically involved. In December, 1987, the victim severed her relationship with the defendant. After their breakup, the defendant began repeatedly calling the victim at home and at work. On January 23, 1988, the defendant telephoned the victim and threatened her, stating that she would be sorry if she did not get back together with him. The victim filed a complaint with the Milford police department, but did not seek the defendant’s arrest at that time.

On February 14,1988, the defendant telephoned the victim at her apartment and asked her to go to lunch with him. She refused his invitation and turned on her answering machine to avoid further calls from him. After the victim showered and got dressed, she noticed that her cat was standing by the door. She opened the door and the defendant forced his way into her apartment, forced her onto the sofa, and sexually assaulted her. The victim then retreated to the bathroom and locked the bathroom door behind her. She stayed in this room until the defendant left the apartment.

After the defendant left her apartment, the victim called a friend, who advised the victim to call 911. The victim then dialed 911 and reported that she had been sexually assaulted and named the defendant as her assailant. The defendant was arrested and charged with first degree sexual assault and burglary in the third degree, and was released on bond.

On February 16, 1988, the victim began to keep a written record of telephone calls from the defendant. On February 17, she logged seventy calls. The police put a trap on the defendant’s business telephone line and it registered thirty-four calls to the victim on February 16 and 17, 1988. The defendant made additional calls to the victim on February 18, 1988. The defendant was arrested again and charged with harassment. He was again released on bond with the condition that he stay away from the victim. His bond was later raised to $100,000 after he admitted that he had violated that condition. Although he could not raise this amount initially, he was later released after posting the bond.

On June 21, 1988, the defendant phoned the victim at her health club. As a result of this phone call, the defendant was again arrested and charged with harassment and tampering with a witness.

The defendant moved for acquittal on all charges at the close of the state’s case, claiming that there was insufficient evidence to prove the defendant’s guilt. The court granted the defendant’s motion as to the harassment charges that arose out of the telephone calls of February 16, 17, and 18, 1988, and as to the charges of tampering with a witness that arose out of a telephone call to the victim’s health club on June 21,1988.

I

Motion to Strike

The defendant first claims that the trial court improperly denied his motion to strike certain testimony based on the state’s failure to produce the 911 and police broadcast tapes. As a preliminary matter, we note that the defendant never moved to strike any of the officers’ testimony relating to the police broadcast tapes at trial. Practice Book § 4185 provides in pertinent part that this court “shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial.” Further, the defendant bears the burden of seeking a definitive ruling on the striking of each witnesses’ testimony, after each has testified at trial, in order to comply fully with our rules of practice and to preserve his claim of error as to each witness. State v. Johnson, 214 Conn. 161, 170, 571 A.2d 79 (1990). Because the defendant did not properly preserve his claim with respect to the police broadcast tapes, we will not consider it. We therefore focus our analysis solely on the trial court’s refusal to strike the victim’s testimony in light of the Milford police department’s destruction of the 911 tape.

The following facts are necessary to the resolution of this claim. At trial, the victim testified that when she called her friend after the defendant had left the apartment, she told her, “Tony assaulted me.” The victim also testified that when she dialed 911 to report the incident, she told the police that the defendant had raped her. When the victim’s friend testified, she stated that when the victim telephoned her immediately after the incident she said, “Tony hit me.”

Before the trial began, the trial court granted the defendant’s motion for discovery seeking “[cjopies of statements of prosecution witnesses in the possession of the State or its agents, including state and local law enforcement officers, which statements relate to the subject matter about which the witness will testify . . . .” Although the 911 call was tape-recorded when it was made, this tape was erased thirty days after the incident pursuant to Milford police department policy. Consequently, the state was unable to produce the tapes at the time of trial. The defendant contends that the destruction of the 911 tape and the state’s inability to produce it violated his rights under General Statutes § 54-86b and Practice Book § 752. He also alleges that the 911 tapes could have explained the discrepancy between the victim’s testimony and that of her friend, and that its nonproduction violated his right to confrontation as guaranteed under the state and federal constitutions. We agree with the defendant that the state’s failure to produce the 911 tape violated our rules of practice, but we conclude, nonetheless, that this violation was harmless on the facts of this case.

Although the law in this area is still evolving, past cases have analyzed the destruction of 911 tape recordings in the same way that we have analyzed the destruction of any other recorded statement. Compare State v. Pollitt, 205 Conn. 61, 85-87, 530 A.2d 155 (1987) (defendant suffered no substantial prejudice from the loss of the victim’s 911 statement), with State v. Belle, 215 Conn. 257, 268, 576 A.2d 139 (1990) (defendant not prejudiced by destruction of victim’s statements before trial).

Practice Book § 752 provides that, upon a defendant’s request, the state must disclose “any statement of the witness in the possession of the state or its agents . . . .” See General Statutes § 54-86b. The disclosure provisions of § 54-86b and Practice Book § 752 apply to a 911 tape recording. State v. Williamson, 14 Conn. App. 108, 112-13, 552 A.2d 815 (1988), aff'd, 212 Conn. 6, 562 A.2d 470 (1989). The state was unable to comply with this requirement at trial because of the police department’s routine erasure of the 911 tape.

The state acknowledges that the 911 tape is a statement within the meaning of Practice Book § 749 (2), and the defendant concedes that the tape was not destroyed in bad faith, or by a deliberate act intended to thwart the defense. Where, as here, “ ‘a case involves intentional, but not bad faith, destruction of the statement of a state’s witness, an automatic sanction of striking that witness’testimony is not required. . . .’ State v. Johnson, 214 Conn. 161, 168, 571 A.2d 79 (1990). Rather, under such circumstances, ‘it is appropriate that the court weigh “ ‘the culpability of the state for its failure to make disclosable material available on the one hand, against any resulting prejudice to the defendant on the other. . . .’ ” State v. Williamson, [212 Conn. 6, 14, 562 A.2d 470 (1989)]. This approach gives broad discretion to the trial court. Id. Where . . . the destruction of a witness’ statement, although not in bad faith, is deliberate, the state properly bears the burden of establishing harmlessness. . . . “[T]he proper harmless error inquiry is whether the result of the trial may have been different had the state not violated the rule.” . . .’ ” (Citations omitted.) State v. Belle, supra; State v. Dedrick, 24 Conn. App. 518, 589 A.2d 1241 (1991). Where the state’s failure to produce the tape rises to the level of a denial of the defendant’s right to confrontation the state must prove harmlessness beyond a reasonable doubt. State v. Johnson, 214 Conn. 161, 175, 571 A.2d 79 (1990). Where the state’s failure does not rise to this level, however, the appropriate inquiry is whether the state has proven that it is more probable than not that the state’s nonproduction was harmless. Id.

The trial court found that the defendant’s constitutional right to confrontation was not violated, and that he was not prejudiced by the state’s inability to produce the 911 tape. We agree. Any credibility issue that arose because of the conflict between the victim’s testimony and that of her friend was placed squarely before the jury, and, thus, the defendant’s constitutional right to confrontation was not violated. Further, the analysis under the state constitution found in the defendant’s brief acknowledges that the state’s failure to preserve the 911 tape is a Jencks material type violation. Our Supreme Court has held that a claim relating to Jencks material is not of constitutional proportion. State v. Myers, 193 Conn. 457, 469, 479 A.2d 199 (1984). We decline the defendant’s invitation to expand this rule of law. Thus, we will apply the more probable than not standard, which is the analysis that is mandated in State v. Johnson, supra. In applying this standard, we conclude that the defendant was not prejudiced by the absence of the 911 tape.

The importance of the 911 tape in the context of the entire trial is insignificant. The theory of defense was that the defendant and the victim had had sexual intercourse at the time and place as claimed by the victim, but that their encounter was consensual. Even if the victim had merely told her friend that “Tony hit me,” that statement itself would be contrary to the defendant’s assertion of consensual sexual intercourse. From this perspective the victim’s characterization of the crime has been consistent. Whether she told her friend that the defendant had “hit” or “assaulted” her, she nonetheless indicated that a struggle had taken place between her and the defendant during the undisputed sexual relations. Following the same logic, it is inconsequential whether she told the 911 operator that she had been “assaulted” or “raped,” especially in view of the fact that a rape is a sexual assault. Thus, it is unreasonable to conclude that the jury’s verdict would have been different had the tape been available to them, in that it is illogical that the victim would have dialed 911 to report consensual sexual relations. The trial court properly denied the defendant’s motion to strike.

Our analysis does not end here, however, because we recognize that the indefinite preservation of 911 tapes can place an unreasonable burden on police departments. We therefore now address the question of the rule for police departments to follow for the future preservation of 911 tapes.

We hold that commencing from this date, 911 tapes are excluded from that portion of Practice Book § 752 that states that a defendant may refrain from moving for production of statements until after a state’s witness has testified. Henceforth, police departments are mandated to keep and maintain all 911 tapes for a period of one year from the date of the 911 call. This is consistent with the period mandated by Practice Book § 956B (b), the speedy trial rule. In this way all police departments are placed on notice that they must preserve 911 tape recordings for one year from the date on which they are recorded. If a defendant does not request the preservation of a 911 recording within this time, the police are then free to erase the tape and reuse it. Conversely, when a defendant does request the preservation of a 911 tape within the one year time period, it would be a per se violation of Practice Book §§ 751 et seq. and General Statutes § 54-86b if the police were to erase the requested tape, and the trial court would have no recourse but to strike the relevant witness’ testimony.

A one year period gives a defendant ample time to enter a plea, file his discovery motions pursuant to Practice Book §§ 809 and 811, discover the existence of a 911 recording, and request the tape’s preservation. Likewise, this one year limitation would relieve some of the burden previously placed on police departments by the current practice. Of course, this new rule presupposes an arrest within a reasonable length of time after the 911 call is made. Should the police investigation be protracted, however, the police shall bear the burden of preserving the tape for one year from the date of arrest.

II

Motion for Severance

The defendant filed a pretrial motion for severance requesting a separate trial for the crimes charged in each of four separate informations, and the state moved for joinder of the charges. The defendant’s motion was denied and the state’s motion was granted. On appeal, the defendant claims that the trial court improperly denied his motion for severance, and, consequently, denied his state and federal rights to due process and a fair trial. The state argues that because there is a common legal relationship among the crimes charged in the four informations, the trial court did not abuse its discretion when it denied the defendant’s motion for severance. We agree with the state.

“General Statutes § 54-57 and Practice Book § 829 authorize a trial court to order a defendant to be tried jointly on charges arising separately. In deciding whether to sever informations joined for trial, the trial court enjoys broad discretion, which, in the absence of manifest abuse, an appellate court may not disturb.” State v. Herring, 210 Conn. 78, 94, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989). “The defendant bears a heavy burden of showing that ‘ “denial of severance resulted in substantial injustice,” and that any resulting prejudice was “beyond the curative power of the court’s instructions.” ’ ” Id., 94-95. Where the state’s orderly presentation of evidence has prevented confusion of the jury and has enabled the jurors to consider the evidence relevant to each offense separately and distinctly, we will not conclude that the trial court has manifestly abused its discretion in denying the defendant’s motion for severance. State v. Pollitt, 205 Conn. 61, 68, 530 A.2d 155 (1987). “Where evidence of one incident can be admitted at the trial of [another incident], separate trials would provide the defendant no significant benefit. It is clear that, under such circumstances, the defendant would not ordinarily be substantially prejudiced by joinder of the offenses for a single trial.” (Emphasis omitted.) Id.

As we have noted, the informations contained charges of sexual assault in the first degree, burglary in the third degree, tampering with a witness, and three counts of harassment. The event that triggered the defendant’s actions was the deterioration of his romantic relationship with the victim. Evidence of the defendant’s threats and harassing phone calls provided probative evidence of the defendant’s motive and intent on the burglary and sexual assault charges. See State v. Ramsundar, 204 Conn. 4, 14-16, 526 A.2d 1311, 484 U.S. 955, 108 S. Ct. 348, 98 L. Ed. 2d 374 (1987) (evidence of prior misconduct and conviction for harassment of this victim that followed the termination of a romantic relationship admissible to prove intent and motive); see also State v. Thomas, 205 Conn. 279, 285, 533 A.2d 553 (1987) (evidence of deteriorating relationship and threats admissible to show defendant’s motive); and State v. Graham, 13 Conn. App. 554, 565, 538 A.2d 236 (1987), cert. denied, 207 Conn. 812, 541 A.2d 1241 (1988) (where threats are tied to defendant, evidence of those threats is generally admissible either on the theory that they are inconsistent with the defendant’s claim of innocence, or that the defendant’s conduct exhibits a consciousness of guilt). Because evidence for all counts charged would have been admissible in a trial on the first information charging sexual assault and burglary, it was, therefore, in the interest of judicial economy to join the charges in the four informations for trial. In addition, we conclude that the trial court’s instruction to the jury specifically informed the jurors of which charges the defendant had been acquitted, instructed them as to what evidence was no longer in the case, and reminded the jurors that they must reach their verdict as to each count separately. The trial court did not abuse its discretion in denying the defendant’s motion for severance.

Ill

Due Process Violations

The defendant next claims that the trial court violated his right to due process on three separate occasions when it allowed the state to elicit evidence of the invocation of his constitutional rights.

The following facts are necessary to the resolution of this claim. First, the defendant argues that during the state’s direct examination of Officer Kevin Calder-wood of the Milford police department, the officer testified that after the defendant had come into the police department to tell his side of the story, Calderwood handed the defendant a blue card containing the defendant’s Miranda rights. In response to the state’s question, Calderwood testified that the defendant refused to sign and date the Miranda card. The defendant moved to strike the officer’s testimony and the court granted the defendant’s motion, striking both the question and Calderwood’s reply. The court further instructed the jury to “disregard both the question as well as the answers, if any, and not to speculate on it in any way whatsoever.” The court then excused the jury for the luncheon recess and instructed the state that the information it sought was not relevant and that the question and answer would not be allowed.

The defendant next asserts that after the luncheon recess, the state resumed its direct examination of Calderwood as to his questions to the defendant. The officer testified that the defendant had informed him that the victim had accepted his luncheon invitation and shortly after he had arrived at the victim’s home they had engaged in consensual sexual relations. Calder-wood then stated that he had twice asked the defendant what the victim was wearing when he arrived at her apartment and the defendant gave two conflicting answers. Calderwood further testified that Detective Steve Fournier, who was also present during the questioning of the defendant, told the defendant that the call the defendant had made to the victim arranging their lunch date may have been recorded, and that the defendant then “stated he had nothing else to say without an attorney present.” The state then asked, “How would you describe the defendant’s reaction as he was indicating that he didn’t have anything else to say?” Calderwood replied, “He got a little excited.” The defendant moved to strike the state’s question and answer. The court then questioned the state as to what information it was seeking from Calderwood and the state replied, “I am asking the detective upon the defendant’s hearing that the conversation might have been recorded what was his reaction.” The court then overruled the defendant’s motion to strike.

The defendant argues that the third violation of his rights took place during the state’s second redirect examination of Calderwood when he was asked if the defendant had changed his responses when he had been confronted with a change in circumstances. Calderwood stated that “[tjoward the end of our interview, which was not very long, when Detective Fournier was pressing Mr. Cain about the lunch date over the telephone he really became upset and he stated that he wanted to talk to his attorney and nothing else was said. We terminated our interview.” The defendant noted that “the state’s last question referred to a change in [the defendant’s] either demeanor or responses with regard to a change in circumstances.” He then moved to strike Calderwood’s statement arguing that evidence of the defendant’s invocation of his constitutional right to an attorney is prohibited under Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976).

On appeal, the defendant claims that in these three interviews the state used an effective trial tactic to inform the jury that he had remained silent and had requested counsel when confronted with the possibility that his call to the victim may have been recorded. He also reasserts his claim under Doyle v. Ohio, supra. We conclude that the testimony in this case did not violate the principles set forth in Doyle.

“Doyle v. Ohio proscribes the use for impeachment purposes of a defendant’s silence subsequent to his arrest and after receiving Miranda warnings. ‘The point of the Doyle holding is that it is fundamentally unfair to promise an arrested person that his silence will not be used against him and thereafter to breach that promise by using the silence to impeach his trial testimony.’ ” (Emphasis omitted.) State v. Shashaty, 205 Conn. 39, 48, 529 A.2d 1308 (1987), cert. denied, 484 U.S. 1027, 108 S. Ct. 753, 98 L. Ed. 2d 766 (1988); quoting Wainwright v. Greenfield, 474 U.S. 284, 292, 106 S. Ct. 634, 88 L. Ed. 2d 623 (1986). The state’s reference to a defendant’s assertion of his right to remain silent is not always a constitutional violation. State v. Casey, 201 Conn. 174, 182, 513 A.2d 1183 (1986). This evidence may be offered to demonstrate the officers’ investigative effort and the sequence of events as they unfolded. Id.

The defendant’s argument must fail for two reasons. First, as pointed out by the trial court, the purpose of the state’s questions was to ascertain the defendant’s reaction to the officer’s indication that his phone calls to the victim may have been recorded, and not to elicit his assertion of his right to remain silent for impeachment purposes as required by Doyle. Second, although the evidence of the defendant’s request for counsel was heard by the jury, it was admissible as demonstrative evidence of the officer’s investigative effort, and to show the sequence of events as they unfolded. We conclude that the officer’s testimony was properly admitted.

IY

Sufficiency of the Evidence

The defendant next claims that there was insufficient evidence to convict him of the crime of burglary in the third degree and harassment.

Our scope of review on sufficiency of evidence claims is limited to a two part inquiry. State v. Summerville, 13 Conn. App. 175, 184-85, 535 A.2d 818 (1988). “ ‘We first review the evidence presented at trial, construing it in the light most favorable to sustaining the jury’s verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt.’ . . .” (Citations omitted.) State v. Simino, 200 Conn. 113, 116-17, 509 A.2d 1039 (1986).

Our review of the record before us indicates that the evidence in this case overwhelmingly supports the jury’s verdict, and was sufficient to convict the defendant of the crimes charged.

V

Jury Charge

The defendant next claims that the trial court improperly instructed the jury on the question of consent and on the statutory element of the threat of the use of force. He also claims that the court’s instructions on the crime of burglary in the third degree deprived him of a unanimous verdict. We will address each of these assertions individually.

A

CONSENT

The defendant argues that the trial court improperly, instructed the jury on the elements of compulsion required for a conviction of first degree sexual assault. He argues that his own declaration “I don’t know why she is upset, we’ve done it like that before” is sufficient to support his defense of consent. Relying on State v. Smith, 210 Conn. 132, 554 A.2d 713 (1989), he contends that this bald assertion was sufficient to have shifted the burden to the state to prove beyond a reasonable doubt that the victim had not consented. We are unpersuaded.

First, the very language that the defendant now complains about exactly tracks his request to charge. “Ordinarily, action induced by an appellant cannot be a ground for error .... ‘It seems a bit disingenuous [however] for the defendant to claim that the trial court committed error by instructing the jury . . . when he requested an instruction on that very issue. At least where no constitutional rights are violated, when an accused requests in writing that an issue be submitted to the jury, he cannot, on appeal, claim error in its submission . . . .” (Citation omitted.) State v. Turner, 24 Conn. App. 264, 272, 587 A.2d 1050 (1991).

Further, the defendant’s reliance on State v. Smith, supra, is misplaced. Smith stands for the proposition that “a defendant may not be convicted of . . . [sexual assault in the first degree] if the words or conduct of the complainant under all the circumstances would justify a reasonable belief that she had consented.” (Emphasis added.) State v. Smith, supra, 141. In addition, sexual assault in the first degree is a crime of general intent. Id., 136. In this context, the defendant’s assertion that he and the victim had participated in this type of sexual relations in the past is irrelevant because whether a complainant has consented to a particular incident of sexual intercourse depends on her manifestation of such consent to that incident as reasonably and objectively construed at that time. Id., 140.

Thus, our examination of this portion of the court’s charge leads us to conclude that the jury was properly instructed as to the crime of sexual assault in the first degree and on the issue of the victim’s consent.

B

STATUTORY ELEMENT OF THE THREAT OF THE USE OF FORCE

The defendant also argues that the trial court’s instruction on sexual assault in the first degree was incomplete because, although the trial court properly explained that it was necessary for the jury to find that the defendant had compelled the victim to engage in sexual intercourse by the use of force or by the threat of the use of force, it did not define the term “the threat of the use of force.”

Initially, we note that the instructions as given by the trial court are once again nearly a mirror image of the defendant’s request to charge. We reiterate that we will not reverse a conviction on the basis of an action that is induced by the appellant unless his constitutional rights have been violated. State v. Turner, supra. In addition, “[d]ue process requires that the state establish beyond a reasonable doubt every essential fact necessary to establish the crime charged .... A court’s charge is not to be examined in a vacuum. Rather, it is to be viewed in the context of the factual issues raised at the trial.” (Citations omitted.) State v. Kurvin, 186 Conn. 555, 558, 442 A.2d 1327 (1982). “In this case, the [defendant’s] burden is especially heavy because no erroneous instruction was given; his claim of prejudice is based on the failure to give any explanation—beyond the reading of the statutory language itself—of [an essential] element. An omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law.” Henderson v. Kibbe, 431 U.S. 145, 155, 97 S. Ct. 1730, 52 L. Ed. 2d 203 (1977).

In view of the above, and the fact that the defendant requested the instruction that was given and took no exception to this portion of the charge, we conclude that the trial court’s instruction on the threat of the use of force was proper.

C

UNANIMNITY OF THE VERDICT

The defendant’s final challenge to the jury charge is that the court’s instructions on burglary in the third degree deprived him of a unanimous verdict in violation of the state and federal constitutions. We disagree.

It is axiomatic that an “ ‘appellate court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or an exception has been taken immediately after the charge is delivered by the party appealing.’ ” State v. Fallwood, 193 Conn. 238, 259, 476 A.2d 550 (1984). The purpose of this rule is to alert the trial court to any possible claims arising from its charge while there is still an opportunity for correction and for avoidance of an unnecessary retrial. Id. The defendant failed to preserve this claim by either of these available methods.

In addition, in the present case, the clerk of the trial court specifically inquired as to the jury’s verdict on each individual count, and the trial transcript indicates that the jury foreman responded “guilty” to each count, and that the clerk responded “He stands charged, and so say you all.” (Emphasis added.) When this is the case, a defendant who still has any question as to the unanimity of the verdict on any or all counts, still has the opportunity to move to have the jury polled. State v. Anderson, 211 Conn. 18, 34, 557 A.2d 917 (1989). The defendant also neglected to take advantage of this third opportunity to preserve this claim.

Absent the defendant’s objections, we can review his unpreserved claim only under the exceptional circumstances doctrine of State v. Evans, 165 Conn. 61, 65-66, 327 A.2d 576 (1973), as reformulated by State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989); State v. Fullwood, supra. The defendant in this case, however, offers us only an abstract assertion that this unpreserved claim represents a violation of his state and federal constitutional rights without offering us any analysis under either constitution. An issue that is not properly briefed is considered abandoned. State v. Gaines, 196 Conn. 395, 397-98 n.2, 493 A.2d 209 (1985). We conclude that the trial court properly instructed the jury on the crime of burglary in the third degree.

VI

Admission of State’s Exhibit

The defendant’s final claim is that the trial court should not have admitted state’s exhibit E, the victim’s phone log recording her phone calls on February 16, 17, and 18, 1988, because the defendant was acquitted of the related harassment charges.

The following facts are relevant to the resolution of this claim. At the close of the state’s case, the defendant’s motion for judgment of acquittal was granted by the trial court as to the harassment charges that stemmed from the defendant’s February 16, 17, and 18, 1988 telephone calls to the defendant. The trial court ruled in favor of the defendant after it held that the state had not proven the identity of the caller beyond a reasonable doubt. The trial court then struck the testimony of Eugene Bachman, a representative of the Southern New England Telephone Company, who had testified as to the telephone trap that traced the February 17 and 18 phone calls to the defendant’s business telephone. The court also struck the exhibits that had been introduced by Bachman and all testimony that related to the February harassment charges. At that time, the court refused to strike Fournier’s testimony as to the February calls because it found that these calls related to the harassment charge that was still pending stemming from the defendant’s June 21, 1988 phone call. After the closing arguments, the court refused to strike exhibit E, which had come in without objection, because it found that these phone calls were never specifically tied to the defendant, but did go to the victim’s state of mind when she received the June 21,1988 telephone call from the defendant at her health club.

“Evidence is only admissible when it tends to establish a fact in issue or to corroborate other direct evidence in a case.” State v. Robinson, 213 Conn. 243, 259, 567 A.2d 1173 (1989). The harassment charges that stemmed from the defendant’s June 21,1988 phone call to the victim’s health spa required proof of the victim’s state of mind, in that it was essential for the state to prove beyond a reasonable doubt that the defendant’s actions were “likely to cause annoyance or alarm” in order to convict the defendant of harassment. The trial court properly denied the defendant’s motion to strike state’s exhibit E.

The judgment is affirmed. '

In this opinion Norcott, J., concurred.

Daly, J.,

concurring in part, dissenting in part. I conclude that the trial court should have granted the defendant’s motion to strike the victim’s testimony because the missing 911 statement implicated the defendant's federal constitutional right to confront and cross-examine a critical witness. The majority’s opinion has failed to consider the factors the Connecticut Supreme Court has articulated and applied in similar cases to assess whether the missing 911 statement infringed on the defendant’s confrontation rights. See State v. Belle, 215 Conn. 257, 269-70, 576 A.2d 139 (1990) ; State v. Johnson, 214 Conn. 161, 174-75, 571 A.2d 79 (1990); State v. Williamson, 212 Conn. 6, 22-23, 562 A.2d 470 (1989) (Williamson II); State v. Sanford, 25 Conn. App. 255, 260-61, 594 A.2d 477 (1991) . First, it must be determined whether “the trial court or a reviewing court ha[d] access to the unproduced material.” WilliamsonII, supra, 22. As in Williamson II, neither the trial court nor this court has had access to the victim’s 911 statement because it was destroyed. As in Williamson II, neither the trial court nor this court has had a counterpart transcript of the missing statement, read and adopted by the victim shortly after making her 911 telephone call. Id., 23. Finally, like the Williamson II case, the defendant’s conviction obviously rested on the testimony of the victim, whose pretrial statement was destroyed. Id., 22-23. Given these factors, the defendant’s right to confront and cross-examine the victim was implicated and the state should have been held to prove beyond a reasonable doubt that the missing 911 statement was harmless. Id., 23.

From the evidence adduced at trial, the state could not prove that the missing 911 statement was harmless beyond a reasonable doubt. The defendant’s conviction rested squarely on the victim’s testimony in this case and her testimony contained critical inconsistencies. On direct examination, the victim testified that the first person she called after the incident was her friend. The victim claimed that she told her friend that the defendant had assaulted her. She then testified that after this conversation she called 911 and reported: “I was raped.” During her cross-examination, the victim testified that she told her friend, “[the defendant] raped me,” not “[the defendant] hit me,” as her friend had testified. She then explained that in her prior testimony she had used the word “assaulted” because she was afraid to use the term “rape,” and that she had, in fact, told her friend that she was raped. During recross, the victim reaffirmed the sequence of her telephone calls and that she had reported to the 911 operator that she had been raped. The victim’s friend testified that the victim called and said “[the defendant] hit me,” but she was not certain of the wording, and later testified that it sounded like “[the defendant] hit me.” The state submitted into evidence the victim’s statement to the police on the day she called 911. The statement contained the victim’s accusation that the defendant had raped her on that day.

The inconsistencies in the victim’s testimony and in what she said to her friend on the phone are relevant to the issue of what was the victim’s initial complaint to the police on that day. Although the inconsistencies have to do with what the victim told her friend about her complaint, they do indicate that the victim’s call to the police, which immediately followed, was of critical importance. What the victim reported in her 911 statement would either support her accusation of rape or provide the defendant with material for further impeachment because she could have complained of an assault or of the defendant’s striking her. Conceivably, the victim and the defendant could have had consensual intercourse and subsequently had a violent altercation. Simply because there may have been a temporal juxtaposition between the sexual intercourse and an assault does not lead to the inescapable conclusion that a rape occurred.

The trial court’s conclusion that the defendant had not been prejudiced was based on its speculation that the 911 tape contained the victim’s accusation that she had been raped. This speculation is unfounded and did not address the inference of inconsistency drawn from both the victim’s and her friend’s testimony. Though her 911 statement may have been brief, as the facts of this case demonstrate, whether the victim reported that she had been struck, assaulted or raped would have been critical evidence for the defendant’s defense and thus implicated his confrontation rights.

The defendant was able thoroughly to cross-examine the witnesses and did expose the jury to the inconsistencies contained in the victim’s testimony and in her conversation with her friend. See Williamson II, supra, 25-26. This does not ameliorate, however, the prejudice the defendant may have suffered because he did not have available the victim’s 911 statement. See id. Had the jury heard that the victim reported to the police that the defendant had struck her or assaulted her, and not that he had raped her, it might have affected the outcome of this case, at least regarding the counts of sexual assault and burglary. Thus, the trial court should have stricken the victim’s testimony because of the state’s failure to produce the 911 statement and the state’s subsequent failure to prove the defendant had not been prejudiced beyond a reasonable doubt.

As a result of this conclusion, I would reverse the judgment of conviction on the counts of sexual assault and burglary and remand the case for a new trial on those counts. In all other aspects of the majority’s opinion I concur.

       The state’s charging document cites a violation of General Statutes § 53a-183 (3). This appears to be a scrivner’s error, in that the only portion of § 53a-183 that carries a subdivision (3) is § 53a-183 (a) (3). This conclusion is further supported by the fact that the text of the substitute information tracks the wording of § 53a-183 (a) (3), in that it reads: “on or about the 21st day of June 1988, the said Anthony W. Cain with intent to harass, annoy or alarm another person did make telephone calls in a manner likely to cause annoyance or alarm in violation of C.G.S. 53a-183 (3).” By way of comparison, General Statutes § 53a-183 (a) (3) provides that “[a] person is guilty of harassment in the second degree when. . . with intent to harass, annoy or alarm another person, he makes a telephone call, whether or not a conversation ensues, in a manner likely to cause annoyance or alarm.”

       Despite the defendant's assertions to the trial court to the contrary, a separate motion for the preservation and production of these tapes was never properly filed, and, therefore, was never acted upon by the trial court. The only motion that is properly before us for review with respect to this issue is the defendant’s motion for discovery.

       Practice Book § 749 provides: “The term ‘statement’ as used in Sec. 748 means ... (2) A stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by a person and recorded contemporaneously with the making of such oral statement.”

       “In the context of a § 752 violation . . . the term ‘bad faith’ connotes a deliberate act done with intent to deprive the defense of information.” State v. Williamson, 212 Conn. 6, 16, 562 A.2d 470 (1989).

       18 U.S.C. § 3500. Our Practice Book §§ 748 through 755 are modeled after the federal Jencks Act. See State v. Anonymous (83-FG), 190 Conn. 715, 732, 463 A.2d 533 (1983); State v. Gonzales, 186 Conn. 426, 432, 441 A.2d 852 (1982).

       Practice Book § 752 provides: “[disclosure of statements—statements OF WITNESS]--PRODUCTION FOLLOWING TESTIMONY
      “After a witness called by the state has testified on direct examination at trial, the judicial authority shall, on motion of the defendant, order the state to produce any statement of the witness in the possession of the state or its agents, including state and local law enforcement officers, which statement relates to the subject matter about which the witness has testified.”

       Practice Book § 956B provides in pertinent part: “[speedy trial]— TIME LIMITATIONS
      “(b) Except as otherwise provided herein and in Sec. 956C, the trial of a defendant charged with a criminal offense on or after July 1,1985, shall commence within twelve months from the filing of the information or from the date of the arrest, whichever is later.
      “The trial of such defendant shall commence within eight months from the filing of the information or from the date of the arrest, whichever is later, if the following conditions are met:
      “(1) the defendant has been continuously incarcerated in a correctional institution of this state pending trial for such offense; and
      “(2) the defendant is not subject to the provisions of Gen. Stat. § 54-82c.
      “(c) If an information which was dismissed by the trial court is reinstated following an appeal, the time for trial set forth in paragraphs (a) and (b) shall commence running from the date of release of the final appellate decision thereon.
      “(d) If the defendant is to be tried following a mistrial, an order for a new trial, an appeal or collateral attack, the time for trial set forth in paragraphs (a) and (b) shall commence running from the date the order occasioning the retrial becomes final.”

       Practice Book § 809 provides: “[pretrial motion practice]— PRETRIAL MOTIONS AND REQUESTS
      “Unless otherwise provided by statute or rule, or permitted by the judicial authority for good cause shown, pretrial motions and requests shall consist only of one or more of the following:
      “(1) Motions to dismiss under Sec. 814;
      “(2) Motions and requests for discovery and depositions under Chapter 26;
      “(3) Motions to suppress evidence under Sec. 820;
      “(4) Motions for joinder or severance under Sec. 827;
      “(5) Motions for a bill of particulars under Sec. 830;
      “(6) Motions for transfer of prosecution under Sec. 834.”

       Practice Book § 811 provided, at the time in question here, in pertinent part: “[pretrial motion practice]—time for making pretrial MOTIONS OR REQUESTS
      “Unless otherwise provided by these rules or statute, all pretrial motions or requests shall be made not later than ten days after the entry of a plea in the court where the case will be tried, or, for good cause shown, at such later time as the judicial authority may fix.”

       The defendant was charged in four informations as follows: (1) Docket No. CR5-71783, sexual assault in the first degree and burglary in the third degree, (2) Docket No. CR5-71829, one count of harassment based on the defendant’s February 16,1988 telephone calls to the victim, (3) Docket No. CR5-71828, two counts of harassment based on the defendant’s telephone calls to the victim on February 17 and 18, 1988, and (4) Docket No. CR5-73898, harassment and tampering with a witness based on two calls to the victim at her health club on June 21, 1988.

       “[General Statutes] Sec. 54-57. joinder of offenses of the same character. Whenever two or more cases are pending at the same time against the same party in the same court for offenses of the same character, counts for such offenses may be joined in one information unless the court orders otherwise.”

         “[Practice Book] Sec. 829. —trial together of indictments or informations
      “The judicial authority may, upon his own motion or the motion of any party, order that two or more indictments or informations or both, whether against the same defendant or different defendants, be tried together.”

        Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       The defendant contends that the court’s instructions that the element of compulsion would be negated by “the actual consent of the victim,” that such consent “must be actual and real,” and that it must be a “truly voluntary and willing act of sexual intercourse” were improper. That portion of the defendant’s request to charge that dealt with this issue requested the following: “The actual consent of the victim to sexual intercourse will negate, will negative, the element of compelling by use of force. The consent required, however, must be actual and real, and not just mere surface acquiescence induced by force, by fear or shock. In order for consent to sexual intercourse to negate the element of compulsion, the intercourse must be engaged in by the other person with no compulsion, no threat, no fear, and no force. In other words, it must be a truly voluntary and willing act of sexual intercourse. Consent may be express or it may be implied from all the circumstances then and there existing. Whether or not the victim consented to the sexual intercourse is a question of fact which you must determine from all the circumstances which have been proven to you.” (Emphasis added.)

       Although the defendant claims that this instruction violates his constitutional rights, he does not elaborate what rights or how they were violated. An issue that is not properly briefed is considered abandoned. State v. Gaines, 196 Conn. 395, 397-98 n.2, 493 A. 2d 209 (1985).

       See footnote 1, supra.

       The trial court rendered its decision on the defendant’s motion to strike before the Connecticut Supreme Court affirmed State v. Williamson, 14 Conn. App. 108, 540 A.2d 386 (1988) (Williamson I) in State v. Williamson, 212 Conn. 6, 562 A.2d 470 (1989) (Williamson II). Williamson II defined the appropriate standards applicable to determine the state’s burden of proving harmless error. Williamson II, supra, 19. Thus, the trial court did not have the guidance of Williamson II in deciding the issue of prejudice.

       A court may not speculate about what a missing statement contains or how the defendant would have used this unproduced statement in his defense. State v. Williamson, 212 Conn. 6, 22-23, 562 A.2d 470 (1989).


source: Caselaw Access Project

author: Lavery, J.

license: Public Domain

text:
    Harry Wilson et al. v. Kapetan, Inc.
    (8987)
    Dupont, C. J., Norcott and Lavery, Js.

      Argued January 17
    decision released August 20, 1991

      Tracy Alan Saxe, with whom was Susan B. Freedman, certified legal intern, for the appellant-appellee (defendant).

      Steven B. Kaplan, for the appellees-appellants (plaintiffs).
   Lavery, J.

The defendant, Kapetan, Inc., appeals from the judgment of the trial court awarding damages to the plaintiffs for breach of a construction contract. Kapetan claims that the trial court was incorrect (1) in finding that it had wrongfully terminated the contract between it and Wilson, (2) in holding that Wilson had substantially performed the subject contract despite his alleged refusal to follow Kapetan’s instructions and his failure to perform the work in a timely manner, and (3) in awarding damages to Wilson in the amount of $42,838.29. In a cross appeal, Wilson asserts that the decision of the trial court was improper in its failure (1) to find that Kapetan had wrongfully rescinded the contract, (2) to award damages for that rescission in quantum meruit based on the reasonable value of the services rendered, and (3) to award prejudgment interest to Wilson. We conclude that the trial court’s finding that Kapetan breached the contract is not clearly erroneous, and that its assessment of damages is legally and logically correct. We affirm the judgment of the trial court.

In its memorandum of decision, the trial court found the following facts. On June 5,1989, Kapetan, a general contractor, engaged Wilson as a subcontractor for all site work, including drainage, septic and paving work required for the construction of the Valley Presbyterian Church in Brookfield. Under the terms of the written subcontract, Wilson was to furnish all labor and materials to complete the site work for which he was to be paid $93,188. In addition to the original subcontract there was a change order in the amount of $3616, and additional work performed in the amount of $4922.50, bringing the total contract price to $101,726.50. Although the contract outlined the progression that the various phases of the work should take, it contained no completion date and no schedule dictating when each phase was to begin or end.

Wilson began work in May, 1987, and substantially completed the contract by the middle of December, 1987, when he was discharged by Kapetan before completing the final paving phase of the contract. While Wilson was still on the job, his progress was impeded by Kapetan’s imperfect direction, its failure to coordinate subcontractors, and its inability to provide modified drainage plans and accurate benchmarks in a timely manner. Due to the resulting delay, Wilson could not begin the paving phase of the project before December, 1987. The wet soil conditions and the inclement climatic factors combined to prevent Wilson from paving. Because Wilson was required by the terms of the subcontract to warranty the paving for one year, he was unwilling to perform this phase of the contract in December, despite Kapetan’s insistence that he do so.

When Wilson refused to proceed with the paving, Kapetan terminated their contract and engaged another excavation contractor to complete the work. In addition, Kapetan paid for certain materials on Wilson’s behalf. Wilson brought the underlying action against Kapetan for breach of contract and Kapetan filed a counterclaim seeking recompense for additional expenses incurred as a result of Wilson’s failure to perform his obligations under the contract.

The court found that Kapetan had wrongfully terminated the contract and, on the counterclaim, that Wilson was not in breach. Accordingly, the court awarded Wilson $42,838.29, a sum that represents the total contract price including additions and change orders minus a credit to Kapetan of $58,888.21 representing the amount Kapetan paid for material on Wilson’s behalf and the scheduled value of the paving phase of the contract not completed by Wilson.

I

On appeal, our review of Kapetan’s first two claims are limited to a determination of whether the trial court’s conclusions that Kapetan breached the construction contract with Wilson and that Wilson had substantially performed the contract are clearly erroneous in light of the evidence and pleadings contained in the whole record. Practice Book § 4061; Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-23, 435 A.2d 24 (1980); Metropolitan District v. Housing Authority, 12 Conn. App. 499, 510, 531 A.2d 194, cert. denied, 205 Conn. 814, 533 A.2d 568 (1987).

“Whether a building contract has been substantially performed is ordinarily a question of fact for the trier to determine. . . . The resolution of conflicting factual claims falls within the province of the trial court. . . . 'The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . .’We cannot retry the facts or pass on the credibility of the witness.” (Citations omitted.) Nor’easter Group, Inc. v. Colossale Concrete, Inc., 207 Conn. 468, 472-73, 542 A.2d 692 (1988).

Upon reviewing the entire record, we find no reason to disturb the trial court’s findings that Kapetan breached its contract with Wilson and that Wilson had substantially performed. The trial court’s factual findings and ultimate conclusions are supported by the record and are not clearly erroneous.

II

Kapetan next asserts that under the formula set forth by our Supreme Court in Young v. Shetucket Coal & Wood Co., 97 Conn. 92, 94-95, 115 A. 672 (1921), the proper measure of damages when the contractor has been prevented from completing the contract work is the cost incurred in performing the subcontract work plus the lost profit on the subcontract. Kapetan maintains that because Wilson failed to carry its burden of proving at trial its costs or its lost profits, it is entitled only to nominal damages for the work performed. We disagree.

In general, when a party is awarded damages based on a breach of contract, he is entitled to compensation that will place him in the same position he would have occupied had the contract been fully performed. Fuessenich v. Dinardo, 195 Conn. 144, 153, 487 A.2d 514 (1985); Bertozzi v. McCarthy, 164 Conn. 463, 468, 323 A.2d 553 (1973). It is well settled that this measure of damages requires a factual inquiry to determine the loss the plaintiff has sustained in the form of (1) expenditures incurred toward performance of the contract, and (2) the lost profit that would have been realized had the entire contract been performed. Young v. Shetucket Coal & Wood Co., supra; Tompkins v. Bridgeport, 94 Conn. 659, 682, 110 A. 183 (1920).

In the case before us, there was ample evidence adduced at trial to provide the finder of fact with a basis for awarding the damages that it did award. In its memorandum of decision, the court relied on the contract and the change order that was offered as the plaintiff’s exhibits F and I to determine a base contract price of $96,804. To that price, the court added the additional work reflected by the plaintiff’s exhibit R of $4922.50 to determine the total gross price of the contract of $101,726.50. From that gross figure the trial court deducted credits in favor of the defendant amounting to $58,888.21, which it was able to determine from the plaintiff’s exhibit P. The $58,881.21 credit figure was arrived at by deducting $28,800 of prior payments by Kapetan, $2921 in credits for work done by others and $27,188 for the paving work not done.

There was evidence before the court that the value of the work, in costs and in profits, was divided into four separate segments, and the cost and allocation of profit for the paving segment was $27,188. In its brief, Wilson admits that it failed to claim lost profits on the uncompleted paving segment at trial. The trial court properly awarded no damages for lost profits on that segment of the contract. The trial court had substantial evidence from which it made a reasonable determination of damages.

Ill

Wilson’s claims on cross appeal are equally unpersuasive. The revised complaint set forth two alternative theories on which the court could assign liability to Kapetan for its breach of contract. The court properly chose one of those theories and awarded damages to Wilson based on what Wilson asked in the ad damnum clause of its complaint.

Although a plaintiff is entitled to allege separate theories of liability in the alternative, he is not entitled to recover twice for the same elements of damage. Jonap v. Silver, 1 Conn. App. 550, 561, 474 A.2d 800 (1984). Wilson tried the case on a theory of breach of contract and that is the basis on which the court found for Wilson. “Where ... a case is tried upon a certain theory, [a reviewing court] will dispose of the case on the theory on which it was tried and on which the trial court decided it.” Crozier v. Zaboori, 14 Conn. App. 457, 463, 541 A.2d 531 (1988). “A plaintiff cannot try his case on one theory and appeal on another.” McNamara v. New Britain, 137 Conn. 616, 618, 79 A.2d 819 (1951).

Wilson’s assertion that the court incorrectly failed to award prejudgment interest under General Statutes § 37-3a is also without merit. “The allowance of interest as an element of damages is primarily an equitable determination and a matter within the discretion of the trial court.” Nor’easter Group, Inc. v. Colossale Concrete, Inc., supra, 482; see also Metcalfe v. Talarski, 213 Conn. 145, 160, 567 A.2d 1148 (1989); West Haven Sound Development Corporation v. West Haven, 207 Conn. 308, 321, 541 A.2d 858 (1988).

Our careful review of the record discloses no abuse of discretion by the trial court in refusing to award prejudgment interest.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs in this case are Harry and Margaret Wilson, who were doing business as Harry Wilson Excavating. We will refer in this opinion to the plaintiffs as Wilson.


author: Landau, J.

text:
    In re Wayne A. II

    (9384)
    Dupont, C. J., O’Connell and Landau, Js.
    Argued February 6
    decision released August 20, 1991

      David J. Wenc, for the appellant (respondent father).

      Linda Pearce Prestley, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (petitioner).

      Maureen A. Chmielecki, for the minor child.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 2026, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Landau, J.

Wayne A. II was born on October 5, 1978, to Rosemarie A. and Wayne A., who has been incarcerated since June, 1979. In July, 1986, Rosemarie A. voluntarily placed the child in the custody of the department of children and youth services (DCYS). In April, 1987, DCYS filed a coterminous petition seeking adjudication of the child as a neglected and uncared for child and further seeking termination of the parental rights of both parents. On July 1,1988, Rosemarie A. voluntarily consented to termination of her parental rights. The neglect and termination proceeding with regard to the father’s parental rights was scheduled for October 18, 1988.

Rather than proceeding to trial on that date, the father entered into a stipulation with DCYS agreeing to voluntarily terminate his parental rights provided (1) that he have the opportunity to correspond with his son by letter, (2) that he have the opportunity to communicate with his son by telephone at least four times a year including his son’s birthday, Christmas, Thanksgiving, or any other appropriate holiday, (3) that DCYS would make reasonable efforts to place his son with an adoptive family that would permit written and telephone communication between the father and his son and that DCYS would have the burden of establishing the reasonableness of its efforts at a six month review before the court and at a twelve month review if DCYS had not previously established the reasonableness of its efforts and that the father would have the opportunity to participate at the review hearing “to exercise [his] rights concerning the efforts of DCYS,” (4) that if the adoptive parents initially accept the conditions of this stipulation but subsequently wished to terminate contact, the adoptive parent’s decision would be reviewed by the court to provide the father with the opportunity to determine whether the decision was arbitrary, (5) that if the child should desire not to remain in communication with his father, the child’s therapist would report his opinion as to the son’s desire, and that the father would have the right to request an independent psychiatric or psychological evaluation, (6) that the father’s attorney would monitor the child’s responsiveness to the written and telephone communications from the father, and (7) that the father would have the opportunity to indicate on the record the reasons why he is consenting to the termination of his parental rights. This stipulation was read into the record with the father counsel for DCYS and counsel for the child orally agreeing to the stipulation as it was read.

After the father stated on the record his reasons for agreeing to terminate his parental rights, the trial court fully apprised him of the implications of termination. The court specifically stated that “you have to understand that the termination of parental rights means that it is a termination and there is no legal right to enforce any agreement with respect to visitation or communication. I have to explain that to you and that will be the affidavit that you receive. That doesn’t mean we’ll try to void the agreement that was reached here, but we will follow that agreement to the extent that it is possible to comply with it. But you are giving up your rights to your child.”

On November 30, 1988, after voluntary consent forms signed by the respondent were reviewed by the court and entered into the record, the court granted the petition for termination of the father’s parental rights. The commissioner of DCYS was then appointed as statutory parent for the purpose of placing the child into adoption.

After six months and again after twelve months, DCYS filed reports with the court. Neither party requested a hearing at those times because an adoptive home had not been found for the child. In January, 1990, an adoptive home was found. In April, 1990, DCYS filed a motion to review the permanent plan that the child, who was residing with his adoptive family, would be adopted within one year. On May 8,1990, the father filed a motion to enforce the stipulation, alleging that DCYS had violated all of the provisions in the stipulation. The father specifically alleged that DCYS refused to provide him with the opportunity to communicate and correspond with his son, never attempted to establish whether it had made reasonable efforts to place the child with an adoptive family who would accept the stipulation, evaded their responsibility to seek judicial review of its efforts, and refused to allow contact between the child and the father’s attorney who is the monitor named in the stipulation.

A hearing was held on these motions on May 17, May 24, and June 7,1990, at which the father was represented by an attorney. The court denied the father’s oral motion for a continuance so that he could be physically present at the hearing and provided him with telephone communication during the proceeding.

On June 7,1990, the trial court granted the petition of DCYS to review the permanent plan and approved it. The court also denied the father’s motion to enforce the stipulation. The court found that DCYS had made reasonable efforts to comply with the requirements of the stipulation and concluded that further review would not be necessary. The court specified that adoption is in the best interests of the child and should proceed without further court intervention. The court, therefore, concluded that the father would have to address his inquiries regarding communication with his son extrajudicially to DCYS.

The father claims that the court incorrectly (1) denied his request that he be present at the hearing and thereby denied him his right to due process, (2) denied his request to call two additional DCYS employees as witnesses and thereby denied him his right to due process, and (3) found that the requirement of “reasonable efforts” in the stipulation dated October 18,1988, had been established by DCYS. We conclude that the actions of the trial court were proper.

In his first two claims, the father asserts that the trial court denied him his right to due process and his right to participate in the hearing on his motion to enforce the stipulation and on the motion of DCYS to review the plan for the child. The father bases his claims on General Statutes § 46b-135 (b) and In re Juvenile Appeal (Docket No. 10155), 187 Conn. 431, 435, 446 A.2d 808 (1982), which addressed a parent’s rights in termination proceedings, and the adoption in that case of the balancing test articulated in Mathews v. Eldridge, 424 U.S. 319, 334, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). The present case, however, does not concern a hearing to terminate parental rights.

A trial court may grant a petition to terminate parental rights if a parent consents to the termination knowingly and voluntarily. General Statutes § 17a-112 (b); In re Rayna M., 13 Conn. App. 23, 38-39, 534 A.2d 897 (1987). A review of the record indicates that the father had voluntarily and knowingly consented to the termination of his parental rights when he executed the voluntary consent form in 1988, that he understood that the termination of parental rights is part of the adoption process and that the state would be seeking to permanently place his son. See In re Theresa S., 196 Conn. 18, 30, 491 A.2d 355 (1985). This review also indicates, however, that the father terminated his rights anticipating that, subject to the terms of the stipulation, he would have the opportunity to remain in contact with his son even after the child had been adopted.

The father first claims that the trial court’s denial of his motion to be physically present during the proceeding constitutes a denial of due process and an abuse of discretion. In In re Juvenile Appeal (Docket No. 10155), supra, 437, our Supreme Court concluded that a father who was not physically present during a hearing to terminate his parental rights but was provided with a telephone hookup was not deprived of his due process rights. See also In re Jonathan P., 23 Conn. App. 207, 212-13, 579 A.2d 587 (1990). Therefore, in this case, the father’s due process rights, after his parental rights had been terminated, were fully protected because of his telephone connection during the proceeding. The telephone hookup allowed him to participate in the proceeding and the court’s denial of his motion for a continuance so that he could be physically present does not constitute an abuse of discretion.

The father next claims that the court violated General Statutes § 46b-135 (b), which provides a parent in a juvenile proceeding the rights of confrontation and cross-examination, by not allowing him to call two additional DCYS employees as witnesses, thereby violating his rights to due process and participation in the review proceeding. General Statutes § 46b-135 (b) is not applicable. It was within the trial court’s discretion to deny the father’s request to call additional DCYS employees as witnesses on the basis of relevance or cumulative evidence. State v. Ruffin, 206 Conn. 678, 683, 539 A.2d 144 (1988); State v. Watley, 195 Conn. 485, 490, 488 A.2d 1245 (1985); State v. Gooch, 186 Conn. 17, 24, 438 A.2d 867 (1982). We find no abuse of discretion.

The father’s third claim is that the trial court’s finding that DCYS had made reasonable efforts to place the child with an adoptive family that would accept the terms of the stipulation is clearly erroneous. Specifically, the father challenges the factual basis of the court’s decision. We conclude that the basis for finding is sound. The father further alleges that he was prejudiced because the court did not review the efforts of DCYS after six months and after twelve months. The court, in rendering its decision, noted the review periods stated in the stipulation. It found, however, that, due to the difficulty in placing the child, any failure to address the conditions of the stipulation at the prior review hearings did not result in prejudice because those same issues are fully addressed in the present proceeding. Our review of the record reveals that the facts set out in the court’s decision are supported by the evidence. Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

The judgment is affirmed.

In this opinion the other judges concurred.

       A statutory parent is defined as “the commissioner of children and youth services or that child-placing agency appointed by the court for the purpose of giving a minor child or minor children in adoption . . . .” General Statutes § 17a-93 (f).


author: O’Connell, J.

text:
    Max F. Brunswick et al. v. Inland Wetlands Commission of the Town of Bethany et al.
    (8983)
    O’Connell, Foti and Landau, Js.
    Argued January 17
    decision released August 20, 1991

      Max F. Brunswick, for the appellants (plaintiffs).

      Gerald P. Dwyer, for the appellee (named defendant et al.).

      Mark L. Goodman, for the appellee (defendant DJM Development Corporation).
   O’Connell, J.

The plaintiffs, after a full hearing on the merits, challenge the trial court’s dismissal of their appeal from the Bethany inland wetlands commission’s approval of a wetlands permit and subdivision proposal. We do not reach the plaintiffs’ claims because the dispositive issue, raised sua sponte by the court, is the validity of a writ signed by an attorney who was one of the named plaintiffs. We conclude that an attorney cannot sign the writ in a case in which he is a party and, therefore, the trial court was without subject matter jurisdiction to entertain the appeal.

The following facts are relevant to this appeal. Max F. Brunswick is an attorney admitted to the practice of law in this state. By virtue of General Statutes § 51-85 and Practice Book § 18, he is also a commissioner of the Superior Court, a concomitant of which is the “power and authority” to sign writs. Brunswick, one of ten plaintiffs attempting to bring the appeal, signed the writ that accompanied the complaint and caused it to be served on the defendants.

The writ was issued on January 10,1989. Approximately eleven months later, the commission moved to dismiss the appeal on the ground that Brunswick, a party plaintiff, could not sign a writ in his own case, and, thus, the process was not signed by a commissioner of the Superior Court as required by General Statutes § 52-45a. At this point, Brunswick withdrew the case as to himself as a plaintiff, signifying that his only connection with the case thereafter would be as attorney for the remaining plaintiffs. The trial court denied the motion to dismiss reasoning that the remaining nine plaintiffs were entitled to their day in court.

Although the commission failed to preserve this issue, it is the duty of the court to act whenever lack of subject matter jurisdiction comes to its attention. Pet v. Department of Health Services, 207 Conn. 346, 351, 542 A.2d 672 (1988). Accordingly, the issue was raised sua sponte by this court at oral argument. The parties argued the question and filed supplemental briefs. The commission contends that this appeal should have been dismissed because the trial court had no jurisdiction to entertain an appeal when the writ was signed by a commissioner of the Superior Court in his own case.

We begin our analysis with a determination of whether a writ used to commence a civil action is analogous to a citation used to initiate an administrative appeal. In Edward L. Stephenson’s treatise on Connecticut civil procedure, he states that “[i]n appeals from administrative agencies, the writ is designated as a ‘citation’ but serves the same function. The citation, like the writ, is a direction to the officer to summon the agency whose decision is being appealed .... As with the writ, it is the direction to the officer to cite the agency which confers upon him the authority to make service of process. Without the citation, any attempted service is a nullity and the appeal is subject to abatement for want of jurisdiction.” 1 E. Stephenson, Connecticut Civil Procedure (2d Ed.) § 18 (a). Our Supreme Court has ruled that a citation is simply the correct designation for a writ in an administrative appeal. Johnson v. Zoning Board of Appeals, 166 Conn. 102, 104 n.1, 347 A.2d 53 (1974). “Without a citation signed by competent authority, the officer to whom it is given for service receives no power or authority to execute its command, and becomes ‘little more than a delivery man.’ ” Sheehan v. Zoning Commission, 173 Conn. 408, 413, 378 A.2d 519 (1977). These authorities lead us to the inescapable conclusion that the words “writ” and “citation” are synonymous. For simplicity, unless the context requires otherwise, we will refer to the instrument as a writ whether it was in fact a writ or a citation in any particular case.

The principle that an attorney cannot sign a writ in his own case has its genesis in Doolittle v. Clark, 47 Conn. 316, 322-23 (1879). In Doolittle, three New Haven county attorneys commenced an action by virtue of a writ which one of them had signed and issued as a commissioner of the Superior Court. The defendants pleaded in abatement of the action. The Supreme Court held that the action should be abated and commented that it had long been the practice and interpretation of the statute governing the issuance of process in civil actions that an otherwise authorized court officer could not sign and issue civil process in his own case. Id. The reasoning of the Doolittle court is as applicable today as it was more than a century ago and bears quoting at length. “The writ in order to be ‘due process of law’ must be signed by ... a . . . commissioner of the Superior Court ... or a . . . clerk of the court to which it is returnable. One object of the statute clearly is to throw some safeguard around the rights of a defendant, and he might presume that at least the officers named in the act would not sign a writ for groundless cause, nor grant one against his person or property to gratify the inclination of a litigious plaintiff. Another purpose which the statute has in view is that the writ shall be an instrument of dignity, bearing the impress of the power and authority of the state, and be respected and obeyed by the citizen against whom it is directed, its purpose being to compel his attendance before a proper tribunal, that justice may be done. But if each man who happens to be a .. . commissioner of the Superior Court . . . may sign and issue a writ in his own name, there is no safeguard thrown around the process and no dignity attached to it. ” (Emphasis added.) Id. Today, when it is fashionable in some circles to malign the courts and the legal profession, we must be even more vigilant in safeguarding the dignity of the process of law.

An attorney is not merely the servant or agent of his client. His oath imposes on him duties and obligations to the court as well as to his client. He is an officer of the court and like the court itself, under a duty to advance the ends of justice. “Where his duties to his client conflict with those he owes to the public as an officer of the court in the administration of justice, the former must yield to the latter.” 7 Am. Jur. 2d, Attorneys at Law § 5; Langen v. Borkowski, 188 Wis. 277, 301, 206 N.W. 181 (1925).

The plaintiffs question whether the Doolittle proscription applies to administrative appeals. This question was answered in Willard v. West Hartford, 135 Conn. 303, 305, 63 A.2d 847 (1949), a zoning .appeal in which the court articulated that “[t]he plaintiff is a commissioner of the Superior Court and himself signed the citation. This he may not do.”

Furthermore, General Statutes § 22a-43 prescribes that appeals from decisions of an inland wetlands commission to the Superior Court shall be taken in accordance with General Statutes § 4-183 (Uniform Administrative Procedures Act). Both our Supreme Court and this court have repeatedly held that a valid appeal under § 4-183 must include a citation signed by a competent authority. McQuillan v. Department of Liquor Control, 216 Conn. 667, 672, 583 A.2d 633 (1990); Chestnut Realty, Inc. v. Commission on Human Rights & Opportunities, 201 Conn. 350, 356, 514 A.2d 749 (1986); Shapiro v. Carothers, 23 Conn. App. 188, 190, 579 A.2d 583 (1990); DelVecchio v. Department of Income Maintenance, 18 Conn. App. 13, 15, 555 A.2d 1007 (1989); Atkins v. Bridgeport Hydraulic Co., 5 Conn. App. 643, 645-46, 501 A.2d 1223 (1985). Thus, we conclude that a citation is a prerequisite to an administrative appeal and the line of cases emanating from Doolittle v. Clark, supra, applies to citations as well as to writs. Consequently, an attorney may not sign the citation in an administrative appeal in which he is a plaintiff.

The plaintiffs incorrectly argue that in similar situations the Supreme and Appellate Courts have both ignored this jurisdictional defect and allowed appeals to be prosecuted to conclusion. The plaintiffs confuse the right of an attorney to appear pro se in his own case with his authority to sign and issue the writ in such a case. The plaintiffs rely on Masters v. Masters, 201 Conn. 50, 513 A.2d 104 (1986); Burton v. Planning Commission, 13 Conn. App. 400, 536 A.2d 995 (1988), aff’d, 209 Conn. 609, 553 A.2d 161 (1989), and Perlmutter v. Johnson, 6 Conn. App. 292, 505 A.2d 13, cert. denied, 200 Conn. 801, 509 A.2d 517 (1986). Because the opinions published in the Connecticut Reports and Appellate Reports show that in those cases the plaintiff-attorneys argued their own appeals pro se, the plaintiffs here incorrectly infer that these pro se attorneys must have signed and issued their own writs. In none of the cases cited, however, did the plaintiff-attorneys sign and issue their own writs. Each attorney litigant had the writ signed by either another attorney or a clerk of the Superior Court. Once a court acquires jurisdiction by virtue of a writ issued and signed by a competent authority, an attorney, like any other party, may file a pro se appearance and be heard. Unlike in the present case, this procedure was properly followed in each of the cases relied on by the plaintiffs. See Presnick v. Esposito, 8 Conn. App. 364, 367 n.2, 513 A.2d 165 (1986). Thus, a lawyer litigant has no fewer rights than a lay party nor does he have any greater rights when it comes to his own case. We do not penalize an attorney because of his profession. Our intention is that attorneys be treated equally with other parties when it comes to their own cases. To allow lawyer litigants to issue writs in their own cases would give them an advantage over lay parties and this was never intended by our jurisprudence.

The plaintiffs claim that until July 1, 1979, a pro se party could not sign his own complaint and that all complaints had to be signed by a commissioner of the Superior Court. This misstates the history of writs and complaints as well as confusing the two. A writ is the document that confers authority on a proper officer to make service of process; Stephenson, supra; whereas a complaint is the plaintiff’s first pleading that sets forth his cause of action. See Practice Book § 131. Prior to the promulgation of its present form, the writ and complaint were generally merged into a single document commonly called the “writ, summons and complaint.” See Stephenson, supra, § 79 (a). Stephenson recognized that “[i]t has . . . been a long-standing practice to embody the complaint within the writ, although there is nothing in the rules to prohibit putting the complaint on a separate sheet.” Id., § 79 (f). When the consolidated writ, summons and complaint format was utilized, a signature of a commissioner of the Superior Court was required. If the complaint was on a separate page, however, it could be signed by a pro se party like any other pleading.

The plaintiffs next analogize an attorney’s signing a writ to a pro se plaintiff’s signing his own complaint and having a clerk of the Superior Court sign the writ. We reject this comparison. The duty of a clerk is to “review the proposed writ of summons and, unless it is defective as to form or does not contain a bond for prosecution . . . [the clerk] shall sign it.” Practice Book § 49. The limited purpose of this procedure is to guarantee parties not represented by counsel access to the courts. A logical extension of the plaintiffs’ argument is that a clerk could sign a writ in his own case, a practice prohibited by the usual conflict of interest rules. The plaintiffs imply that the procedure of having the clerk of the court sign a writ is of recent vintage. We call the plaintiffs attention to the reference in Doolittle v. Clark, supra, to a clerk’s signing a writ. Thus, for more than one hundred years, clerks have been authorized to sign writs submitted to them to accompany complaints signed by pro se plaintiffs.

We are not prepared to extend the limited rule relating to a clerk’s duty to sign writs to encroach on the long standing principle that the signing and issuing of a writ by a commissioner of the Superior Court is discretionary and not a mere ministerial matter. In re Application of Griffiths, 162 Conn. 249, 255, 294 A.2d 281 (1972), rev’d on other grounds, 413 U.S. 717, 93 S. Ct. 2851, 37 L. Ed. 2d. 910 (1973); In re Application of Sharkiewicz, 143 Conn. 724, 726, 126 A.2d 822 (1956); Sharkiewicz v. Smith, 142 Conn. 410, 412, 114 A.2d 691 (1955). Although body attachments were statutorily eliminated in 1981 and the prejudgment remedy statute curtailed the unfettered seizure of property, the issuance of a writ remains a very serious matter. Signing a writ is a process that starts the wheels of justice turning. A person is summoned to court, incurs attorney’s fees and costs, is subjected to the glare of publicity, and is forced to endure the extremely emotional experience of litigation. The exercise of this writ issuing perogative by an attorney, acting as an officer of the court, is one of consequence and should not be done indiscriminately. Sharkiewicz v. Smith, supra. “ ‘The practice of law is not a craft or a trade; it is a profession the main purpose of which is to aid in the doing of justice according to law between the state and the individual and between man and man.” In re application of Griffiths, supra. We are cognizant of authority that states that certain aspects of this profession are commercial in nature; Bates v. State Bar of Arizona, 433 U.S. 350, 380-82, 97 S. Ct. 2691, 53 L. Ed. 2d 810 (1977) (which held that advertising by lawyers is protected commercial speech); Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, 190 Conn. 510, 517, 461 A.2d 938 (1983); Noble v. Marshall, 23 Conn. App. 227, 230, 579 A.2d 594 (1990) (Connecticut Unfair Trade Practices Act claims under limited circumstances apply to the conduct of the profession of law). We are not persuaded, however, that these limited inroads of commercialism have eroded the professional standards of the practice of law.

The plaintiff argues that case law has changed and that the current weight of authority now allows attorneys to sign writs in their own cases. A careful search of all reported decisions of the Supreme and Appellate Courts fails to disclose even one case that has in any manner chipped away at this historically entrenched principle. The plaintiffs quote from several trial court opinions as claimed authority. They do not, however, furnish us with copies of these opinions, as required by Practice Book § 294, which at best could have only persuasive merit and not the weight of binding authority on this court. State v. Nardini, 187 Conn. 109, 124, 445 A.2d 304 (1982). Under the doctrine of stare decisis, we look to decisions of the Supreme and Appellate Courts for authority for our decisions. When we are faced with an issue of first impression, we appreciate being furnished with the generally well reasoned opinions of the trial courts; however, this issue is not an open question, and this court can not reexamine or reevaluate Supreme Court precedent. Whether a Supreme Court holding should be reevaluated and possibly discarded is not for this court to decide. Board of Education v. Bridgeport Education Assn., 9 Conn. App. 199, 203-204, 518 A.2d 394, cert. denied, 202 Conn. 802, 519 A.2d 1206 (1987).

The plaintiffs next argue, assuming arguendo that the writ is invalid as to the plaintiff Brunswick, that it remains somehow valid as to the other nine plaintiffs. They contend that a mistake on Brunswick’s part in signing the writ should not affect their right to be in court. This argument overlooks the fact that Doolittle v. Clark, supra, the case that originated this rule, is on all fours with the present case. Doolittle involved three plaintiffs. The Supreme Court abated the entire action, not merely that portion of the case that pertained to the rights of the attorney who signed the writ. We cannot disregard nor overrule this direct Supreme Court precedent. Board of Education v. Bridgeport Education Assn., supra. Thus, in the present case, because the writ was defective ab initio as to all plaintiffs, it did not confer jurisdiction on the court to hear the case.

The plaintiffs next claim that Brunswick’s withdrawal of the case as to himself cured the defect and there is now no issue for this court to consider. We do not agree. The plaintiffs improperly rely on State v. Schonagel, 192 Conn. 652, 473 A.2d 300 (1984) and M & L Homes, Inc. v. Zoning & Planning Commission, 187 Conn. 232, 445 A.2d 159 (1982). These cases are inapposite. The Schonagel court held that there was nothing for it to consider after the appellant withdrew his appeal before the date scheduled for appellate argument. Schonagel would be authority only if all the plaintiffs here withdrew their appeal. They have not done so. In M & L Homes, Inc., the Supreme Court affirmed the trial court’s refusal of a mandamus to approve a subdivision application that had been withdrawn. To be analagous here, the application to the commission would have to have been withdrawn while the matter remained before the commission. Obviously, this was not done.

The plaintiffs rely on the Supreme Court’s quotation in M & L Homes, Inc., from Webster, Third International Dictionary, defining “withdraw” to mean “to eliminate from consideration.” That definition is not helpful in the present case where the issue is the propriety and legality of a plaintiff-attorney’s signing a writ in his own case. Brunswick’s withdrawal of himself as a plaintiff nearly a year after he issued the writ does not have nunc pro tunc effect so as to eliminate the issue from our consideration. “The rule that a plaintiff who is an attorney should not be allowed to sign a writ in his own case was intended to eliminate the possibility of using the courts as a means of harassment by litigious plaintiffs.” Cohen v. Ushinski, 36 Conn. Sup. 69, 70, 411 A.2d 597 (1979). Allowing a plaintiff attorney to sign his own writ as long as he drops himself as plaintiff a year later obviously circumvents the purpose of the rule.

We conclude that Brunswick could not sign the writ in this case and, therefore, the appeal was not commenced by a proper authority and the defendant’s motion to dismiss should have been granted. Although we concur with the trial court’s dismissal of this appeal, it should have been dismissed on the ground that the trial court lacked jurisdiction.

The judgment is reversed and the case is remanded with direction to dismiss the matter for lack of subject matter jurisdiction.

In this opinion the other judges concurred.

       The defendants are the Bethany inland wetlands commission, the Bethany town clerk, the Connecticut commissioner of environmental protection, and DJM Development Corporation, to which the wetlands permit and subdivision approval was granted. For simplicity, reference to the commission is intended to include all the defendants.

       General Statutes § 51-85 provides in pertinent part: “Each attorney-at-law admitted to practice within the state, while in good standing, shall be a commissioner of the superior court and, in such capacity, may, within the state, sign writs . . . . ”

       The pertinent part of Practice Book § 18 provides: “At the time such applicant [for. admission to the bar] is admitted as an attorney the applicant shall be sworn as a commissioner of the superior court.”

       It is important to observe that upon admission to the bar of this state, each attorney at law takes two separate and distinct oaths. One is the oath of an attorney pursuant to General Statutes § 1-25 and the other is the oath of a commissioner of the Superior Court pursuant to Practice Book § 18. It is in this latter capacity, as an officer of the Superior Court, that an attorney may issue writs and it is a clear conflict of interest for such an officer of the court to act in his own case by signing and issuing his own writ.

       Writ and citation are synonymous. See p. 545, infra.

       General Statutes § 52-45a provides: “Civil actions shall be commenced by legal process consisting of a writ of summons or attachment, describing the parties, the court to which it is returnable, the return day and the date and place for the filing of an appearance. The writ shall be accompanied by the plaintiff’s complaint. The writ may run into any judicial district and shall be signed by a commissioner of the superior court or a judge or clerk of the court to which it is returnable.”

       A plea in abatement is the precursor of the modern motion to dismiss. See Practice Book § 142.

       Judicial notice of the original case files discloses the following: (1) In Masters v. Masters, 201 Conn. 50, 513 A.2d 104 (1986), the writ was signed and issued by Elaine Mrosek, clerk of the Superior Court for the judicial district of Tolland. (2) In Burton v. Planning Commission, 13 Conn. App. 400, 536 A.2d 995 (1988), the citation was signed and issued by Louis A. Pace, Jr., clerk of the Superior Court of the judicial district of Danbury. (3) In Perlmutter v. Johnson, 6 Conn. App. 292, 505 A.2d 13 (1986), the writ was signed and issued by Stanley A. Jacobs, a commissioner of the Superior Court.

       Ironically, a court clerk might have found that the citation in this case was defective as to form and refused to sign it. The “citation” appears on form 103.1 (JD-CV-1), the employment of which for administrative appeals is expressly forbidden by Practice Book § 49. Although the mistaken use of form JD-CV-1 in an administrative appeal is not grounds for dismissal absent prejudice; Chestnut Realty, Inc. v. Commission on Human Rights & Opportunities, 201 Conn. 350, 354-57, 514 A.2d 749 (1986); Carlson v. Fisher, 18 Conn. App. 488, 493, 588 A.2d 1029 (1989); query whether a clerk would sign a writ that contravened the express prohibition of § 49.

       The gravamen of the plaintiffs’ argument is that this is an ancient doctrine that has not been recognized in modern case law. This is not true. The doctrine was recognized as recently as Presnick v. Esposito, 8 Conn. App. 364, 367 n.2, 513 A.2d 165 (1986).

        Yudkin v. Gates, 60 Conn. 426, 429, 22 A. 776 (1891), which concerned mittimuses signed by a justice of the peace, appears to be authority for this proposition, but in Sharkiewicz v. Smith, 142 Conn. 410, 412, 114 A.2d 691 (1955), the discussion in Yudkin was declared to be dictum and without force of precedent.