author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. GARY DILLARD
    (AC 31732)
    Bear, Espinosa and Schaller, Js.

      Argued September 9
    officially released December 6, 2011

      Alice Osedach, assistant public defender, for the appellant (defendant).

      Ronald G. Weller, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Eugene R. Calistro, Jr., senior assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Gary Dillard, appeals from the judgment of conviction, following a trial by jury, of one count of manslaughter in the first degree in violation of General Statutes § 53a-55, one count of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3), one count of attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 and 53a-134 (a) (3), and one count of threatening in the second degree in violation of General Statutes § 53a-62 (a) (1). The defendant claims that the trial court erred in (1) failing to inquire into a possible conflict of interest between the defendant and his trial counsel, (2) admitting evidence of prior acts of misconduct and (3) denying the defendant’s motion to sever certain charges. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts from the evidence presented. The victim, Patricia Austin, lived in the town of Hamden with her four sons. For approximately six months, the defendant lived at the victim’s home and was involved with her romantically. Between 8 a.m. and 9 a.m. on April 18, 2007, the defendant went to the victim’s home. Shortly thereafter, two of the victim’s sons, who were in the basement at the time, heard their mother scream one of the children’s names. They ran upstairs and saw the defendant in a third floor bedroom holding a twelve inch butcher’s knife and restraining the victim by her hair. The defendant then forced the victim outside. One son told the defendant to put the knife down, and the defendant said, “I’m going to kill her, I’m going to kill her.” The defendant then stabbed the victim in the chest and ran down the street. The stabbing caused damage to the victim’s heart and lung, causing her to die shortly thereafter.

The defendant arrived at a nearby gas station and, after threatening a customer with the knife, drove away in a stolen green Subaru Impreza. The police apprehended the defendant in New Haven at approximately 10 a.m. while he was driving the Subaru. The police discovered a sweatshirt stained with the victim’s blood inside the vehicle. The defendant admitted to police that he had stabbed the victim, but asserted that it was an accident. Although the defendant showed police the area where he had thrown the knife from the car, the police were unable to locate the knife.

The defendant was arrested and charged with one count of murder in violation of General Statutes § 53a-54a, one count of violating a protective order in violation of General Statutes § 53a-223, one count of robbery in the first degree in violation of § 53a-134 (a) (3), one count of attempt to commit robbery in the first degree in violation of §§ 53a-49 and 53a-134 (a) (3), and one count of threatening in the second degree in violation of § 53a-62 (a) (1). The defendant entered an Alford plea to the charge of violating a protective order. On March 17, 2009, the state filed a substitute information omitting this charge. Following trial, the jury found the defendant not guilty of murder but guilty of the lesser included offense of manslaughter in the first degree and each of the four remaining charges. On June 26, 2009, the court imposed a total effective sentence of thirty-six years incarceration. This appeal followed. Additional facts wall be set forth as necessary.

I

The defendant’s first claim is that the court erred in failing to conduct an inquiry regarding a possible conflict of interest between him and his attorney. Specifically, the defendant argues that the court’s knowledge of the fact that his lawyer assaulted him required the court to ascertain whether the incident gave rise to a conflict of interest. We disagree.

The following additional facts are relevant to our analysis of the defendant’s claim. On March 17,2009, the defendant appeared in court with his attorney, Walter Bansley III. Shortly after arriving in the courtroom, the defendant stated that Bansley “assaulted me in front of inmates down there, slammed my head up against the wall because I told him I didn’t want him to represent me because he is not looking out for my best interests . . . . I want assault charges brought up on him.” Bansley requested a competency evaluation of his client but did not respond directly to the defendant’s allegations. The court then concluded that “everything has to come to a complete halt until [the defendant’s] ability to stand trial has been determined and the issue of his representation as well” and adjourned court.

The following day, the defendant and Bansley appeared in court again. At that time, Bansley represented to the court that he had considered the events of the previous day, discussed the matter with his client and believed that he could continue his participation in the case. The defendant then made an affirmative representation to the court that he wanted Bansley to continue representing him. The court then canvassed the defendant regarding this choice.

We begin our analysis of the defendant’s claim by setting forth the applicable standard of review. “Almost without exception, we have required that a claim of ineffective assistance of counsel must be raised by way of habeas corpus, rather than by direct appeal, because of the need for a full evidentiary record for such [a] claim. ... On the rare occasions that we have addressed an ineffective assistance of counsel claim on direct appeal, we have limited our review to allegations that the defendant’s sixth amendment rights had been jeopardized by the actions of the trial court, rather than by those of his counsel. . . . We have addressed such claims, moreover, only where the record of the trial court’s allegedly improper action was adequate for review or the issue presented was a question of law, not one of fact requiring further evidentiary development. . . . We, therefore, review the defendant’s claim as a question of law and, as with all questions of law, our review is plenary.” (Citations omitted; internal quotation marks omitted.) State v. Parrott, 262 Conn. 276, 285-86, 811 A.2d 705 (2003).

“The sixth amendment to the United States constitution as applied to the states through the fourteenth amendment, and article first, § 8, of the Connecticut constitution, guarantee to a criminal defendant the right to [the] effective assistance of counsel. . . . Where a constitutional right to counsel exists . . . there is a correlative right to representation that is free from conflicts of interest.” (Internal quotation marks omitted.) State v. Cator, 256 Conn. 785, 793, 781 A.2d 285 (2001). “There are two circumstances under which a trial court has a duty to inquire with respect to a conflict of interest: (1) when there has been a timely conflict objection at trial ... or (2) when the trial court knows or reasonably should know that a particular conflict exists . . . .” (Internal quotation marks omitted.) Id., 793-94; State v. Thompson, 118 Conn. App. 140, 146-47, 983 A.2d 20 (2009), cert. denied, 294 Conn. 932, 986 A.2d 1057 (2010).

“In discharging this duty, the trial court must be able, and be freely permitted, to rely upon [defense] counsel’s representation that the possibility of such a conflict does or does not exist. . . . The reliance in such an instance is upon the solemn representation of a fact made by [the] attorney as an officer of the court. . . . The course thereafter followed by the court in its inquiry depends upon the circumstances of the particular case.” (Internal quotation marks omitted.) State v. Barnes, 99 Conn. App. 203, 216-17, 913 A.2d 460, cert. denied, 281 Conn. 921, 918 A.2d 272 (2007). Indeed, “[t]rial courts necessarily rely in large measure upon the good faith and good judgment of defense counsel. An attorney [facing a possible conflict] in a criminal matter is in the best position professionally and ethically to determine when a conflict of interest exists or will probably develop in the course of a trial.” (Emphasis in original; internal quotation marks omitted.) State v. Crespo, 246 Conn. 665, 696, 718 A.2d 925 (1998), cert. denied, 525 U.S. 1125, 119 S. Ct. 911, 142 L. Ed. 2d 909 (1999).

In State v. Barnes, supra, 99 Conn. App. 203, the defendant claimed the trial court “violated his right to the effective assistance of counsel ... by failing to inquire adequately into a claimed conflict of interest . . . between him and his trial counsel when the court knew or should have known about the conflict.” Id., 213. In that case, the defendant argued that a conflict of interest was created when he filed a habeas petition claiming that his lawyer had rendered ineffective assistance. Id. Although we noted that the existence of such a collateral proceeding could give rise to a “potential conflict,” we also recognized that counsel indicated to the trial court that he was able to proceed and that the defendant was asked “whether he wanted defense counsel to continue to represent him, and [he] answered affirmatively . . . .” Id., 219. From these facts, we concluded that the trial court “was not alerted to a potential conflict of interest and, accordingly, did not have a duty to inquire.” Id., 221.

In the present case, the trial court was told by the defendant that a physical altercation had taken place between him and Bansley. After this allegation, the trial judge promptly adjourned court. At the outset of proceedings the following day, Bansley made an affirmative representation to the court that he had discussed the incident with his client and could continue his involvement with the case. Counsel made this representation in his capacity as an officer of the court, pursuant to what our Supreme Court has said is an attorney’s “ethical obligation to avoid conflicting representations and to advise the court promptly when a conflict of interest arises during the course of trial.” (Internal quotation marks omitted.) State v. Crespo, supra, 246 Conn. 696. Far from objecting, the defendant indicated emphatically that he wanted Bansley to continue serving as his lawyer. Based on these facts, including both Bansley’s affirmative representations to the court and the defendant’s emphatic statement that he wanted Bansley to continue to represent him, we conclude that the trial court did not know, or have reason to know, that a conflict of interest existed and, accordingly, had no duty to inquire further. See State v. Barnes, supra, 99 Conn. App. 216-21.

II

The defendant’s second claim is that the court erred in admitting evidence of prior misconduct. Specifically, the defendant argues that evidence pertaining to the defendant’s interactions with the victim and her family on April 7, 2007, and April 15, 2007, should not have been admitted because these incidents were dissimilar to the underlying charges and therefore irrelevant. The defendant also argues that the admission of this evidence was unfairly prejudicial. We disagree.

The following additional facts are necessary for our resolution of the defendant’s claim. On April 7, 2007, the defendant got into a fight with the victim during which he threatened to kill her while holding a “twelve inch steak knife.” The police later arrived at the victim’s home and discovered the defendant locked in the upstairs bedroom. The defendant unlocked the door and indicated to police that the knife was on a nearby dresser. On April 15, 2007, the defendant again went to the victim’s home and threatened her, yelling that he was “going to hunt and kill” her. The defendant objected to the admission of evidence regarding these events, but the court overruled that objection, finding that the evidence was admissible to show intent.

We begin our analysis of the defendant’s claim by setting forth the standard of review applicable to evidentiary challenges. “We review the trial court’s decision to admit evidence, if premised on a correct view of the law . . . for an abuse of discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. ... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did.” (Citations omitted; internal quotation marks omitted.) State v. Orr, 291 Conn. 642, 666-67, 969 A.2d 750 (2009).

“As a general rule, evidence of prior misconduct is inadmissible to prove that a criminal defendant is guilty of the crime of which the defendant is accused. . . . Such evidence cannot be used to suggest that the defendant has a bad character or a propensity for criminal behavior. ... On the other hand, evidence of crimes so connected with the principal crime by circumstance, motive, design, or innate peculiarity, that the commission of the collateral crime tends directly to prove the commission of the principal crime, is admissible. The rules of policy have no application whatever to evidence of any crime which directly tends to prove that the accused is guilty of the specific offense for which he is on trial. . . . We have developed a two part test to determine the admissibility of such evidence. First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions [set forth in § 4-5 (b) of the Connecticut Code of Evidence]. . . . Second, the probative value of the evidence must outweigh its prejudicial effect.” (Internal quotation marks omitted.) State v. Beavers, 290 Conn. 386, 399-400, 963 A.2d 956 (2009). Section 4-5 (b) of the Connecticut Code of Evidence provides, in relevant part: “Evidence of other crimes, wrongs or acts of a person is admissible ... to prove intent, identity, malice, motive, common plan or scheme, absence of mistake or accident, knowledge, a system of criminal activity, or an element of the crime, or to corroborate crucial prosecution testimony.”

In State v. Beavers, supra, 290 Conn. 386, the defendant was charged with “arson murder in violation of [General Statutes] § 53a-54d, attempted murder in violation of [General Statutes] §§ 53a-49 and 53a-54a, and arson in the first degree in violation of [General Statutes] § 53a-lll (a) (1) . . . .” Id., 396. On appeal, the defendant claimed, inter alia, that “the trial court improperly admitted . . . testimony that the defendant . . . had threatened to bum down [the victims’] home.” Id., 397. The Supreme Court found this argument to be unpersuasive, concluding “that the uncharged misconduct evidence was relevant both to prove the defendant’s intent and to disprove the theory that the fire was accidental.” Id., 404.

In the present case, the challenged evidence demonstrates that the defendant had threatened to kill the victim twice in the days immediately preceding her death. Such evidence tends to indicate that the defendant possessed the intent required for conviction of murder and also tends to show that the death of the victim was not the result of an accident as the defendant had claimed at trial. Consequently, we conclude that the court did not err in ruling that this evidence was relevant and fell within the intent exception established in § 4-5 (b) of the Connecticut Code of Evidence.

“Although relevant, evidence may be excluded by the trial court if the court determines that the prejudicial effect of the evidence outweighs its probative value. ... Of course, [a] 11 adverse evidence is damaging to one’s case, but it is inadmissible only if it creates undue prejudice so that it threatens an injustice were it to be admitted. . . . The test for determining whether evidence is unduly prejudicial is not whether it is damaging to the defendant but whether it will improperly arouse the emotions of the jur[ors]. . . . The trial court . . . must determine whether the adverse impact of the challenged evidence outweighs its probative value. . . . Finally, [t]he trial court’s discretionary determination that the probative value of evidence is not outweighed by its prejudicial effect will not be disturbed on appeal unless a clear abuse of discretion is shown. . . . [BJecause of the difficulties inherent in this balancing process . . . every reasonable presumption should be given in favor of the trial court’s ruling. . . . Reversal is required only [when] an abuse of discretion is manifest or [when] injustice appears to have been done.” (Internal quotation marks omitted.) State v. Pena, 301 Conn. 669, 675-76, 22 A.3d 611 (2011).

This court consistently has declined to conclude that the admission of evidence was unduly prejudicial when the prior acts of misconduct were substantially less shocking than the crimes charged. See State v. Pereira, 113 Conn. App. 705, 716, 967 A.2d 121 (“defendant’s act of threatening the victim and her Mend and punching the friend on May 17, 2006, was a less serious matter than the act of holding the child and the knife and threatening to kill himself and the child”), cert. denied, 292 Conn. 909, 973 A.2d 106 (2009); State v. Epps, 105 Conn. App. 84, 94, 936 A.2d 701 (2007) (prior uncharged misconduct was not unduly prejudicial when uncharged misconduct not as brutal as conduct for which defendant charged), cert. denied, 286 Conn. 903, 943 A.2d 1102 (2008); State v. Irizarry, 95 Conn. App. 224, 238, 896 A.2d 828 (“the misconduct evidence in this case was no more shocking than the evidence of the crimes with which the defendant was charged”), cert. denied, 279 Conn. 902, 901 A.2d 1224 (2006). In the present case, the events of April 7, 2007, and April 15, 2007, although serious in their own respect, are substantially less egregious than the acts underlying the charge of murder.

Moreover, the court gave a detailed instruction to the jury limiting the impact of this evidence. The issuance of these instructions mitigates any prejudicial effect that this evidence may have had. See State v. James G., 268 Conn. 382, 397-98, 844 A.2d 810 (2004) (limiting instructions on uncharged misconduct evidence “serve to minimize any prejudicial effect that such evidence otherwise may have had” [internal quotation marks omitted]). “[I]n the absence of evidence to the contrary, we presume that the jury properly followed those instructions.” (Internal quotation marks omitted.) Id., 398. We conclude that the trial court did not abuse its discretion by concluding that this evidence was not unduly prejudicial to the defendant.

Ill

The defendant’s third claim is that the court erred in denying his motion to sever the charges of violating a protective order and threatening in the second degree. We disagree.

The following additional facts are necessary for our resolution of the defendant’s claim. The defendant originally was charged with (1) one count of murder, (2) one count of violating a protective order, (3) one count of robbery in the first degree, (4) one count of attempt to commit robbery in the first degree and (5) one count of threatening in the second degree. On March 3, 2009, the defendant filed a motion to sever the charges of violating a protective order and threatening. Specifically, the defendant argued that “[cjounts [o]ne, [t]hree and [flour of the [flnformation are based upon allegations from an April 18, 2007 incident where the [defendant is accused of stabbing [the victim] in front of their home, ultimately killing her, and his subsequent actions. Counts [t]wo and [flive of the [flnformation are based upon allegations from an April 15, 2007 incident, where the [defendant is accused of making threatening remarks to his girlfriend from outside the home, ultimately resulting in the issuance of a [p]rotective [o]rder.” The court subsequently ruled that the events of April 15,2007, were admissible and denied the defendant’s motion to sever. On March 16, 2009, the defendant entered an Alford plea to the charge of violating a protective order.

“General Statutes § 54-57 and Practice Book § 41-19 permit a trial court to join similar charges in pending cases against a common defendant. Our prior decisions have made clear that the trial court enjoys broad discretion in this respect and that its decision to consolidate will not be disturbed in the absence of manifest abuse of that discretion. . . . [T]his court consistently has recognized a clear presumption in favor of joinder and against severance . . . and, therefore, absent an abuse of discretion . . . [we] will not second guess the considered judgment of the trial court as to the joinder or severance of two or more charges. ... On appeal, [t]he defendant bears a heavy burden of showing that the denial of severance resulted in substantial injustice, and that any resulting prejudice was beyond the curative power of the court’s instructions.” (Citations omitted; internal quotation marks omitted.) State v. Gupta, 297 Conn. 211, 222-23, 998 A.2d 1085 (2010).

“Where evidence of one incident can be admitted at the trial of the other, 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. . . . We consistently have found joinder to be proper if we have concluded that the evidence of other crimes or uncharged misconduct would have been cross admissible at separate trials.” (Internal quotation marks omitted.) State v. Carrion, 128 Conn. App. 46, 55, 16 A.3d 1232 (2011).

We previously have concluded that the evidence presented by the state regarding the events of April 15, 2007, was admissible to show intent and to disprove the defendant’s theory that the victim’s death was accidental. Because this evidence was admissible in both cases, we conclude that no substantial injustice was caused by the joinder of these charges. Accordingly, the court did not abuse its discretion in denying the defendant’s motion to sever.

The judgment is affirmed.

In this opinion the other judges concurred.

       “Under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), a criminal defendant is not required to admit his guilt . . . but consents to being punished as if he were guilty to avoid the risk of proceeding to trial. . . . A guilty plea under the Alford doctrine is a judicial oxymoron in that the defendant does not admit guilt but acknowledges that the state’s evidence against him is so strong that he is prepared to accept the entry of a guilty plea nevertheless.” (Internal quotation marks omitted.) State v. Pentland, 296 Conn. 305, 308 n.3, 994 A.2d 147 (2010).

       Bansley’s son, Walter Bansley IV, also was representing the defendant at trial that day. For simplicity, all references to Bansley hereinafter refer to Walter Bansley in.

       Although the transcript is not entirely clear, the defendant appears to indicate that he originally was displeased with his attorney’s failure to file certain motions on his behalf.

       The defendant cites various documents that contain additional information about his altercation with Bansley. There is no indication in the record that these documents were presented to the trial court. Because there is nothing in the record that indicates that the trial court possessed these documents, we decline to consider them.

       Specifically, Bansley stated: “I have given careful consideration to what took place yesterday in court, and I could assure the court and have assured [the defendant] that whatever occurred, I certainly don’t have any difficulty and I could represent him just as if that didn’t occur. I could certainly place that out of my mind, I don’t have any trouble with that.”

       Indeed, when initially asked by the court whether he desired a new attorney, the defendant responded: “I’m going to put it just like this, Your Honor: I want this Bobby Knight for an attorney.” The defendant proffered the following explanation for his analogy: “Bobby is a highly emotional coach in basketball, but he [is] the best at what he do[es], ... I compare [Bansley] with [Bobby Knight], but in a different field. He is a highly emotional attorney, he is good, I know he’s good, and he will prove me to be innocent, which I am.”

       Specifically, the following colloquy took place between the trial judge and the defendant:
      “The Court: Okay. Now, do you understand, you are making this decision of your own free will?
      “The Defendant: I am making this of my own free will.
      “The Court: Do you believe that they could give you adequate representation in this case?
      “The Defendant: I believe they fully understand me, yeah, I believe they could represent me best.
      “The Court: All right. And has anyone put any pressure on you or in any way forced you to make this decision?
      “The Defendant: No, Your Honor.
      “The Court: You have made this of your own free will?
      “The Defendant: I made this of my own free will.
      “The Court: Are you prepared to follow their advice with respect to this case?
      “The Defendant: Yes. And as well as vice versa.”

       The state contends that we should not consider this claim because the record is inadequate for review. Specifically, the state argues that “the record is inadequate for review because the most critical factual determination relied upon by the defendant — whether . . . Bansley assaulted him— requires ‘further evidentiary development.’ ” We disagree. Although the court’s decision not to inquire into the altercation necessarily leaves unanswered factual questions, the record contains sufficient evidence for us to determine that such an inquiry was not required.

       Because no objection was raised at trial, the defendant must demonstrate that the trial court was aware, or reasonably should have been aware, that a conflict existed. State v. Cator, supra, 256 Conn. 793-94.

       Even in the absence of a duty to inquire, a violation of the defendant’s sixth amendment right may nonetheless be established if “(1) . . . counsel actively represented conflicting interests and (2) ... an actual conflict of interest adversely affected his lawyer’s performance.” (Internal quotation marks omitted.) State v. Crespo, supra, 246 Conn. 689. Even if this court were to assume that the defendant could demonstrate the existence of an actual conflict of interest, the evidence contained within the record does not demonstrate that Bansley’s performance was affected in any way. Indeed, the defendant was ultimately found not guilty on the charge of murder.

       The defendant originally was charged with one count of murder in violation of § 53a-54a. Conviction of this charge requires proof of specific intent. State v. Bharrat, 129 Conn. App. 1, 7, 20 A.3d 9, cert. denied, 302 Conn. 905, 23 A.3d 1243 (2011).

       In reaching this conclusion, we note that although the prior acts of misconduct did not involve the use of physical force, this difference is inapposite to our analysis. State v. Pereira, 113 Conn. App. 705, 714, 967 A.2d 121 (“[t]his court has held that [t]he high degree of similarity required for admissibility on the issue of identity is not required for misconduct evidence to be admissible on the issue of intent” [internal quotation marks omitted]), cert. denied, 292 Conn. 909, 973 A.2d 106 (2009).

       The trial court instructed the jury on the use of prior misconduct evidence as follows: “[T]he state has offered evidence of other acts of misconduct of the defendant, that is, you heard testimony concerning things that took place on April 7, [2007] and also what took place ... on April 15, [2007], This testimony is not being admitted to prove the bad character of the defendant or the defendant’s tendency to commit criminal acts. Such evidence is being admitted solely to show or establish:
      “First, the defendant’s alleged intent.
      “Second, an alleged motive for the commission of the crimes alleged.
      “And third, an alleged absence of mistake or accident on the part of the defendant.
      “You may not consider such evidence as establishing a predisposition on the part of the defendant to commit any of the crimes charged or to demonstrate a criminal propensity.
      “You may consider such evidence, if you believe it, and further find that it logically, rationally, and conclusively supports the issues ... for which it is being offered by the state, but only as it may bear on the issues which I have just stated, that is, intent, motive and absence of mistake or accident on the part of the defendant.
      “On the other hand, if you do not believe such evidence or even if you do, if you find that it does not logically, rationally, and conclusively support the issues for which it is being offered by the state, namely, the above three reasons, then you may not consider that testimony for any purpose.
      “You may not consider evidence of other misconduct of the defendant for any purpose other than the ones I have just told you because it may predispose your mind uncritically to believe that the defendant may be guilty of the offense here charged, merely because of the other alleged misconduct. For this reason, you may consider this evidence only on the issues of the above three reasons and for no other purpose.”

       The defendant also argues that he suffered prejudice because of “the fact that he was charged with violating a protective order stuck in the jurors’ minds.” Although the jury was made aware of this charge before the defendant entered his plea under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), we conclude that the defendant suffered no prejudice because the court specifically instructed the jury to disregard the existence of a protective order in its deliberations. Absent evidence to the contrary, we assume the jury followed those instructions. See State v. James G., supra, 268 Conn. 398.


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    KEVIN ALLDRED v. ELIZABETH ALLDRED
    (AC 32933)
    DiPentima, C. X, and Beach and Peters, Js.
    Argued September 12
    officially released December 6, 2011

      Erich H. Gaston and Alison Gaston, with whom, on the brief, was Nancy Freshman, for the appellant (defendant).

      John C. Heffeman, with whom, on the brief, was J. Colin Heffeman, for the appellee (plaintiff).
   Opinion

PETERS, J.

Because service of process implicates a court’s personal jurisdiction, “an action commenced by . . . improper service must be dismissed.” (Internal quotation marks omitted.) Jimenez v. DeRosa, 109 Conn. App. 332, 338, 951 A.2d 632 (2008). The dispositive issue in this case is whether, in two postjudgment contempt actions brought against a plaintiff who no longer resides in this country, the defendant properly served the plaintiff by mailing copies of the pleadings to the plaintiffs counsel of record. The defendant appeals from the judgment of the trial court granting the plaintiffs motions to dismiss the defendant’s contempt actions. We affirm the judgment of the court.

The motions for contempt arise out of a judgment rendered on May 2, 2007, in which the court, Pickard, J., dissolved the marriage of the plaintiff, Kevin Alldred, and the defendant, Elizabeth Alldred. Since the date of the dissolution, the parties have been engaged in contentious litigation.

In the present appeal, the defendant challenges the validity of the court’s judgment granting the plaintiffs motions to dismiss two postjudgment motions for contempt that the defendant filed on July 7 and August 5, 2010. In its memorandum of decision dated September 10, 2010, the court held that dismissal was required because of insufficiency of service on the plaintiff. On November 12, 2010, the court denied the defendant’s motion for reconsideration, reargument and articulation. The defendant has appealed.

The underlying facts are not in dispute. The parties’ marriage was dissolved by a decree incorporating the parties’ May 1, 2007 separation agreement. The agreement provided for the sale of the marital home in Bridgewater. The agreement contemplated that the sale would occur within two years and afforded each party the option to buy out the other’s interest in the property. The fact that the contemplated sale did not take place within the anticipated time frame has led to considerable further litigation.

On April 28,2010, the court, Shaban, J., in a judgment resolving numerous outstanding postjudgment motions, issued orders concerning the payment of household expenses and the marketing and sale of the marital home. It found the plaintiff in contempt of its May 2, 2007 judgment and awarded the defendant $10,000 in attorney’s fees. It also sanctioned the plaintiff for having failed to comply with discovery requests and awarded the defendant an additional $7500 in attorney’s fees, for a total award of $17,500.

The present appeal arises out of postjudgment contempt proceedings initiated by the defendant to enforce the court’s April 28, 2010 orders. The first contempt motion, filed July 7, 2010, alleged that the plaintiff had failed to pay the $17,500 ordered by the court. The second contempt motion, filed August 5, 2010, alleged that the plaintiff had failed to comply with the court’s orders concerning the sale of the marital home.

By the time that the defendant initiated the contempt proceedings, the plaintiff had moved his residence to Vienna, Austria. The defendant did not serve the plaintiff personally or avail herself of an applicable long arm statute to notify the plaintiff of the pending proceedings. Instead, the defendant attempted to serve the plaintiff by mailing copies of the contempt motions to the plaintiffs counsel of record.

The plaintiff filed timely motions to dismiss the contempt proceedings, arguing that, due to insufficient service of process, the corut lacked personal jurisdiction over him. In its memorandum of decision dated September 10, 2010, the court, Danaher, J., agreed with the plaintiff. The court held that “[a] motion for contempt, if granted, can result in a loss of liberty. Due process mandates that the individual who is the subject of the motion be personally apprised of the motion. Absent agreement by counsel and by the individual who is the subject of the motion, mailing a motion for contempt to opposing counsel is insufficient. This is particularly true in the postjudgment setting . . . .”

On appeal, the defendant claims that the court improperly concluded that her postjudgment motions for contempt required personal service upon the plaintiff. We disagree.

Preliminarily, we note that “a challenge to the jurisdiction of the court presents a question of law over which our review is plenary.” Ryan v. Cerullo, 282 Conn. 109, 118, 918 A.2d 867 (2007). “[T]he Superior Court . . . may exercise jurisdiction over a person only if that person has been properly served with process, has consented to the jurisdiction of the court or has waived any objection to the court’s exercise of personal jurisdiction.” (Emphasis added; internal quotation marks omitted.) Kim v. Magnotta, 249 Conn. 94, 101-102, 733 A.2d 809 (1999). “[A]n action commenced by . . . improper service must be dismissed.” (Internal quotation marks omitted.) Jimenez v. DeRosa, supra, 109 Conn. App. 338; see also Practice Book § 25-13 (a) (5).

“Proper service of process is not some mere technicality”; Hibner v. Bruening, 78 Conn. App. 456, 458, 828 A.2d 150 (2003); but is designed to provide notice of judicial proceedings that may implicate a party’s rights. “It is beyond question that due process of law . . . requires that one charged with contempt of court be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses in his behalf, either by way of defense or explanation.” (Internal quotation marks omitted.) Cologne v. West-farms Associates, 197 Conn. 141, 150, 496 A.2d 476 (1985).

Adjudication of a motion for civil contempt implicates these constitutional safeguards. Addressing a postjudgment finding of civil contempt in Cologne, our Supreme Court held that “[w]here the alleged contempt does not occur in the presence of the court . . . process is required to bring the party into court, and the acts or omissions constituting the offense are to be proved as in ordinary cases.” (Internal quotation marks omitted.) Id., 152.

The defendant argues that the principles that ordinarily govern adjudication of a claim of civil contempt do not apply in the circumstances of this case because her contempt motions were intended merely to enforce the orders contained in the April 28, 2010 judgment rendered by Judge Shaban. Focusing on the fact that counsel for the plaintiff never filed a timely motion to withdraw from representation of his interests in the underlying litigation, the defendant maintains that, pursuant to Practice Book § 3-9 (c), counsel continued to be of record “for all postjudgment purposes.” It follows, according to the defendant, that the plaintiff has waived his right to contest personal jurisdiction.

The dispositive issue in this appeal, therefore, is whether a postjudgment motion for contempt that is filed for the purpose of enforcing an antecedent judicial order requires proper service of process. Established rules of court describing the process required to commence postjudgment contempt proceedings in family matters expressly distinguish between pendente lite and postjudgment motions. Practice Book § 25-27, which governs motions for contempt in family matters, provides in relevant part: “(b) Each motion for contempt must state clearly in the caption of the motion whether it is a pendente lite or a postjudgment motion . . . .” The distinction between contempt proceedings filed before judgment and those filed after judgment has entered is reinforced by the terms of judicial form JD-FM-173, the vehicle for filing contempt motions in family matters. The form specifies that certified delivery is appropriate only if the contempt motion is filed before judgment. See judicial form JD-FM-173. By implication, proper service of process in postjudgment contempt proceedings requires the movant to cause the contempt complaint and summons to be served upon the alleged contemnor. See also A. Rutkin, S. Oldham & K. Hogan, 8 Connecticut Practice Series: Family Law and Practice with Forms (2010) § 34:5, pp. 110-11.

These rules of practice reflect and implement an alleged contemnor’s constitutional right to proper notice of the contempt proceedings and an opportunity to be heard. See Cologne v. Westfarms Associates, supra, 197 Conn. 151-52. “Where a final judgment has entered and no other matters in connection with the case are currently pending before the court . . . the contempt proceeding must be initiated by way of an Application for Order to Show Cause and for Contempt Citation. . . . [T]he application is forwarded first to the clerk of the court who assigns a specific date and time for hearing on the contempt matter. The papers are then served on the respondent in the same manner employed for the service of civil process.” 8 A. Rutkin, S. Oldham & K. Hogan, supra, p. 110. Postjudgment contempt proceedings like those at issue in the present case are, therefore, “not properly instituted with the mere filing of a motion . . . .” Id., p. 111.

The defendant argues, nonetheless, that service of process was not necessary in this case because the plaintiff had actual notice of the contempt proceedings from his counsel. The defendant has provided no authority to support her contention that actual notice is a legally sufficient substitute for the service of process that is required to initiate postjudgment contempt proceedings. To the contrary, mere knowledge of the proceedings is insufficient to confer personal jurisdiction over a party who has not been properly served. See Kim v. Magnolia, supra, 249 Conn. 101-102; 8 A. Rutkin, S. Oldham & K. Hogan, supra, § 34:5. As a matter of law, the contempt proceedings presently at issue, which were initiated by the defendant in July and August, 2010, are legally separate and distinct from the 2009 postjudgment matters in which counsel appeared on behalf of the plaintiff.

We conclude, therefore, that the court properly granted the plaintiffs motions to dismiss. Regardless of the substantive merits of the defendant’s claim, her attempt to serve the plaintiff by mailing copies of the postjudgment contempt motions to the plaintiffs counsel did not confer personal jurisdiction over the plaintiff on the court.

The judgment is affirmed.

In this opinion the other judges concurred.

       In an addendum to their separation agreement, dated May 1, 2007, the parties consented to the court’s continuing jurisdiction over the sale of the marital home.

       Service on the plaintiff could have been made pursuant to the domestic relations long arm statute, General Statutes § 46b-46 (b); see Cato v. Cato, 27 Conn. App. 142, 144-45, 605 A.2d 558 (1992), aff'd, 226 Conn. 1, 626 A.2d 734 (1993); or General Statutes § 52-59b, the general long arm statute, which provides a procedural remedy for a claim against someone owning property in this state. See Cadlerock Joint Venture II, L.P. v. Milazzo, 287 Conn. 379, 387-89, 949 A.2d 450 (2008).

       Practice Book § 25-13 governs motions to dismiss in family matters and provides in relevant part: “(a) The motion to dismiss shall be used to assert ... (5) insufficiency of service of process. . . .”

       Civil contempt may be either direct or indirect. Indirect contempt concerns conduct occurring outside of the court’s presence. See LaMacchia v. Chilinsky, 85 Conn. App. 1, 4, 856 A.2d 459, cert. denied, 271 Conn. 942, 861 A.2d 514 (2004).

       Practice Book § 3-9 (c) provides in relevant part: “All appearances of counsel shall be deemed to have been withdrawn 180 days after the entry of judgment in any action seeking a dissolution of marriage or civil union, annulment, or legal separation . . .

       Judicial form JD-FM-173 instructs the movant to specify whether the claimed contempt is occurring “Before Judgment (pendente lite)” or “After Judgment.” The form indicates in large, bolded and italicized print, that certified delivery is not appropriate in the postjudgment context. In the section that instructs the movant to certify that he or she has mailed or delivered a copy of the contempt motion to the alleged contemnor, the form states: “Certification (Complete if motion is filed before judgment (pendente lite)).” The form also includes a court order “[t]o attend hearing and notice,” a summons and a blank return of service to be completed by the marshal serving the alleged contemnor. See judicial form JD-FM-173.

       In the posljudgment context, “[a] contempt proceeding is not properly instituted with the mere filing of a motion if the situation is not one of those specific instances described above.” 8 A. Rutkin, S. Oldham & K. Hogan, supra, p. 111. This statement references an earlier notation, which cites Practice Book § 3-9 and provides: “A motion will ... be sufficient notwithstanding that there has been a judgment entered in the action . . . if counsel representing the party claimed to be in contempt has not received permission from the court to withdraw his or her appearance, and the motion for contempt is filed within 180 days of the entry of judgment.” Id., p. 110.
      In the present case, the judgment of dissolution was entered in 2007. The 180 day period contemplated by § 34:5 of the Connecticut Practice Series on family matters and set forth in Practice Book § 3-9 (c) has long since passed. In its September 10, 2010 memorandum of decision dismissing the contempt proceedings, the court stated: “Absent agreement by counsel and by the individual who is the subject of the motion, mailing a motion for contempt to opposing counsel is insufficient. This is particularly true in the postjudgment setting, where the application of Practice Book §§ 10-12 and 10-13, which permit service by mailing motions to opposing counsel, must be reconciled with Practice Book § 3-9 (c), which provides that all appearances of counsel shall be deemed withdrawn 180 days after the entry of judgment. In this case, judgment entered on May 2, 2007, and the 180 day period has long since passed.” We agree.


author: MIHALAKOS, J.

text:
    STATE OF CONNECTICUT v. JASON FREEMAN
    (AC 32422)
    Beach, Bishop and Mihalakos, Js.

      Submitted on briefs September 6
    officially released December 13, 2011

      Lisa A. Vanderhoof special public defender, filed a brief for the appellant (defendant).

      John G. Smriga, state’s attorney, Linda Currie-Zeffiro, assistant state’s attorney, and Pamela J. Esposito, senior assistant state’s attorney, filed a brief for the appellee (state).
   Opinion

MIHALAKOS, J.

The defendant, Jason Freeman, appeals from the judgment of conviction, rendered following a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (1), assault of a victim sixty years of age or older in the first degree in violation of General Statutes § 53a-59a (a) (1), assault in the first degree in violation of General Statutes § 53a-59 (a) (3) and carrying a pistol without a permit in violation of General Statutes § 29-35 (a). The defendant claims that the trial court (1) abused its discretion by granting the state’s motion to reopen pretrial suppression hearing testimony after the defendant identified a possible deficiency in the state’s case, and (2) improperly denied his motions to suppress statements and evidence obtained following his arrest by law enforcement officials.

We conclude that the court did not abuse its discretion by reopening pretrial suppression hearing testimony and did not improperly deny the defendant’s motions to suppress, and therefore, we affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the afternoon of March 31, 2008, the eighty-two year old victim, Eli Caviness, was robbed at gunpoint while seated in his parked vehicle next door to a multifamily home at 1016 Stratford Avenue in Bridgeport. The victim was shot in the shoulder during the course of the robbery. The following day, the victim gave a statement to Ada Curet and Lynn Gorman, detectives with the Bridgeport police department, identifying his assailant as a black male between the ages of twenty-four and twenty-five and approximately five feet, seven inches or five feet, eight inches in height. On the basis of this conversation, Curet and Gorman returned to the scene of the crime to ascertain the identity of the assailant. The detectives spoke with Tiyonna Beckwith, who was a cousin of the defendant, and a resident of the multifamily home at 1016 Stratford Avenue. Beckwith, who had also spoken with Curet on the day of the robbery and shooting, identified the defendant as a possible suspect, and provided the detectives with his name and physical description. On the basis of that information, Curet was able to obtain the defendant’s photograph and background information through the police database.

Later that day, law enforcement received another tip: an anonymous call to the police communication center indicated that the person responsible for the robbery and shooting of the victim was en route to the local bus station via taxicab. The caller provided the name of the alleged suspect and indicated that he was wearing a dark colored hooded sweatshirt. On the basis of that information, Curet and Gorman, along with other law enforcement officers, went to the bus station to intercept the suspect. They observed two black males, who were carrying large duffel bags, exit a taxicab. Curet identified herself as a law enforcement officer, and called out to the men to stop. Both men ignored her command and kept walking. The police then surrounded the two individuals, and asked them to identify themselves. One of the men indicated that his name was James. Curet, however, who was carrying a photograph of the defendant, was able to determine that this man was, in fact, the defendant. Questioning of the two individuals revealed that the other man present with the defendant was his brother, Patrick Freeman. The two were taken into custody. During the course of the arrest, $1236 was recovered from the defendant’s person.

At the detective bureau, Curet informed the defendant of his constitutional rights, obtained a written waiver of those rights, and thereafter recorded a statement in which the defendant admitted robbing and shooting the victim. The defendant specifically indicated that he smashed the victim’s driver side window, demanded the victim’s money at gunpoint, and that when the victim resisted, he reached into the victim’s pocket and stole cash from his person, cutting his hand on the window’s broken glass in the process. The defendant claimed that his “gun went off,” and that he, therefore, inadvertently shot the victim in the right shoulder.

The police also obtained a written statement from Beckwith that detailed her recollection of events immediately following the crime. She indicated that she heard a gunshot, which prompted her to look out her bathroom window at 1016 Stratford Avenue and see aperson in a grey, hooded sweatshirt and blue jeans running away from the van that she recognized as belonging to the victim. Ten minutes later, she received a call from the defendant, who requested that she pick him up at a location near the scene of the shooting. Beckwith heeded his request and later drove the defendant to his brother’s home. She also indicated that later that evening she overheard the defendant, who was talking on his cell phone walkie-talkie, say that he had shot someone earlier that day.

Prior to the state’s case-in-chief, the defendant filed a motion to suppress evidence and a separate motion to suppress statements he made to the police subsequent to his arrest. These motions were based on his claim that law enforcement acted without a reasonable and articulable suspicion to stop him and probable cause to arrest him. On January 13, 2009, the court conducted an evidentiary hearing on those motions. The state called Curet, whose testimony detailed the investigation of the crime, including the defendant’s ultimate arrest and admission. At the end of that hearing, the court indicated that it would make a ruling on the motions either the next day, or shortly thereafter; however, the following day, the state made an oral motion to reopen the testimony on the suppression hearing. That motion to reopen was in response to the defendant’s argument that the state had failed to produce sufficient evidence to establish how law enforcement developed the defendant as a suspect. On January 15, 2009, the court granted the state’s motion to reopen and subsequently heard testimony from Gorman. Gorman’s testimony provided additional information explaining how the police developed the defendant as a suspect. The next day, the court denied the defendant’s motions to suppress. The matter then proceeded to trial. This appeal followed.

I

On appeal, the defendant claims that the court abused its discretion by granting the state’s motion to reopen pretrial suppression hearing testimony, and, that it improperly denied his motions to suppress statements and evidence. We address whether the court abused its discretion by reopening pretrial suppression hearing testimony before considering the propriety of the court’s decision to deny the defendant’s motions to suppress. In regard to the former, we “recognize the wide discretion enjoyed by the trial court to permit the reopening of a case after either side has rested. . . . The reopening of a criminal case either to present omitted evidence or to add further testimony after either of the parties has rested is within the sound discretion of the [t]rial [c]ourt. . . . [T]he trial court must be vested with discretion to permit reopening when mere advertence or some other compelling circumstance . . . justifies a reopening and no substantial prejudice will occur.” (Citations omitted; internal quotation marks omitted.) State v. Allen, 205 Conn. 370, 380, 533 A.2d 559 (1987); see also State v. Brigandi, 186 Conn. 521, 546, 442 A.2d 927 (1982).

The following additional facts are necessary for the resolution of this claim. After the state presented its evidence at the hearing on the motions to suppress, the defendant argued that the state had failed to meet its burden of proof with regard to establishing reasonable suspicion and probable cause. Specifically, the defendant argued that the state offered no testimony as to how law enforcement developed him as a suspect. The defendant argues that at that juncture in the case, the record was devoid of testimony indicating “what prompted . . . Beckwith to point the finger at [the defendant]” or evidence suggesting “how the defendant’s name and photo implicated him in the [underlying crime].” Indeed, it was in response to this argument, and prior to any ruling, that the state, realizing a possible deficiency in the evidence, moved to reopen pretrial testimony. The state now submits that the motion to reopen was merely a precautionary move designed to address only a “potential gap in the evidence”; (emphasis in original); and that, in any event, the court retains broad discretion to reopen pretrial testimony. The defendant argues that the court’s reopening of the testimony rewards the state for its laxity, makes the defendant’s attorney a prosecutorial arm of the state, and penalizes the defendant for having a competent defense attorney.

As an initial matter, we agree with the trial court’s observation that there is an absence of case law in Connecticut “directly relating to the reopening of a suppression hearing to give more evidence.” In State v. Allen, supra, 205 Conn. 370, however, our Supreme Court considered the question in a different context: whether a trial court abused its discretion by “permit-t[ing] the state to reopen its case after it had rested and after the defendant’s motion for judgment of acquittal had been denied.” Id., 372. In that case, the state had charged the defendant with having a weapon in a motor vehicle in violation of General Statutes § 29-38. Id., 371-72. After the state had rested its case-in-chief, the defendant moved for a judgment of acquittal on that charge on the basis that the state had not established a prima facie case under § 29-38. Id., 373. The basis for that motion was that the state had failed to establish that the weapon was a pistol within the meaning of the statute because no evidence was offered on the length of the barrel. Id. It was in response to that motion that the state moved, and the court granted, its motion to reopen its case-in-chief. The state then called a witness, who had testified earlier, to testify to the length of the pistol. See id., 374. On appeal, the Supreme Court found that the trial court abused its discretion by permitting the state to reopen its case-in-chief because defense counsel had pointed out the deficiencies in the state’s case, the state conceded that the evidence was insufficient, and then, in response, the state offered new evidence as opposed to clarifying testimony. See id., 382-85. The defendant now cites Allen as authority for reversing the court’s opening of pretrial suppression hearing testimony in this case.

Despite the defendant’s argument to the contrary, the factual and legal circumstances in Allen are too far removed from those that presently concern us to have meaningful purchase in this analysis. The difference is one of both degree (the type of information omitted in that case) and proximity (the stage at which the omission was made). In regard to the former, the state in Allen failed to present evidence on an essential element of the crime charged; yet here, the state failed only to offer one piece of probative evidence establishing how it developed the defendant as a suspect. In regard to the latter, the trial court in Allen permitted the state to reopen after it had rested its case-in-chief, but in the present case, the trial court merely reopened pretrial testimony, which was well before the state’s case-in-chief had begun, let alone ended. Even if the court did not permit the reopening of the suppression hearing for additional testimony, the state would not have been precluded from presenting evidence at trial establishing how the police developed the defendant as a suspect. Moreover, we also note that the Supreme Court was careful to at least implicitly limit the scope of its holding in Allen, stating: “We reach the result in this case without interfering with a trial court’s discretion to permit a reopening under appropriate circumstances in a future case.” Id., 381.

Although the Supreme Court’s context-specific analysis in Allen has limited application here, the broader import of that decision, nonetheless, was its reiteration of an appellate court’s charge to balance two competing concerns in reviews of this type: the defendant’s interest in fairness and the court’s search for truth. See State v. Mendoza, 119 Conn. App. 304, 321, 988 A.2d 329, cert. denied, 295 Conn. 915, 990 A.2d 868 (2010). This means negotiating two potentially poor outcomes: on the one hand, permitting the state to reopen its case after the defendant has identified a deficiency rewards the state for its laxity and in practical effect makes the defendant a prosecutorial arm of the state; on the other hand, excessive procedural rigidity risks reducing the trial to “a game of technicalities . . . .” (Internal quotation marks omitted.) State v. Allen, supra, 205 Conn. 376.

In balancing these competing interests, we find that the reopening of pretrial testimony did not unduly prejudice the defendant nor reward the state for its laxity, but rather, aided the court in its search for truth. As the court acknowledged in its decision to reopen the suppression hearing, the state had testimony that would have addressed the evidentiary deficiency at its “fingertips,” but appeared to merely have inadvertently excluded that testimony from the pretrial hearing. Nor did the reopening of the suppression hearing unduly prejudice the defendant. The additional testimony offered by Gorman was, as the trial court put it, “evidence that [came] as no surprise to the defendant; [it was] in all the disclosures. It [was] evidence that [would have been] presented during the case-in-chief itself.” As our Supreme Court has noted in the context of the weightier question of whether to reopen a case-in-chief, “[t]he trial court must be vested with discretion to permit reopening when mere inadvertence or some other compelling circumstance . . . justifies a reopening and no substantial prejudice will occur.” (Internal quotation marks omitted.) State v. Brigandi, supra, 186 Conn. 546. We, therefore, conclude that the court did not abuse its discretion in reopening the suppression hearing testimony.

II

We now turn to the question of whether the court erred in denying the defendant’s motions to suppress evidence and statements obtained pursuant to the defendant’s arrest by law enforcement officials. “Our standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record . . . .” (Internal quotation marks omitted.) State v. Jenkins, 298 Conn. 209, 222, 3 A.3d 806 (2010).

The defendant’s motions to suppress were premised on his claim that the police had neither a reasonable and articulable suspicion to stop him nor the probable cause to arrest him. First, we consider whether law enforcement had a reasonable and articulable suspicion to stop the defendant. “Ordinarily, [w]hen considering the validity of a . . . stop, our threshold inquiry is twofold. . . . First, we must determine at what point, if any, did the encounter between [the police officer] and the defendant constitute an investigatory stop or seizure. . . . Next, [i]f we conclude that there was such a seizure, we must then determine whether [the police officer] possessed a reasonable and articulable suspicion at the time the seizure occurred.” (Internal quotation marks omitted.) State v. Brown, 279 Conn. 493, 516, 903 A.2d 169 (2006). It is not in dispute that the defendant was stopped by the police; therefore, we concern ourselves only with the latter inquiry.

“The determination of whether a reasonable and articulable suspicion exists involves a two-part analysis: (1) whether the underlying factual findings of the trial court are clearly erroneous; and (2) whether the conclusion that those facts gave rise to such a suspicion is legally correct.” (Internal quotation marks omitted.) State v. Wilkins, 240 Conn. 489, 496, 692 A.2d 1233 (1997).

“Under the fourth amendment to the United States [constitution and article first, §§ 7 and 9, of our state constitution, a police officer is permitted in appropriate circumstances and in an appropriate manner to detain an individual for investigative purposes if the officer believes, based on a reasonable and articulable suspicion that the individual is engaged in criminal activity, even if there is no probable cause to make an arrest. Alabama v. White, 496 U.S. 325, 330-31, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990); Terry v. Ohio, [392 U.S. 1, 22, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)]; State v. Mitchell, 204 Conn. 187, 194-95, 527 A.2d 1168, cert. denied, 484 U.S. 927,108 S. Ct. 293, 98 L. Ed. 2d 252 (1987). Reasonable and articulable suspicion is an objective standard that focuses not on the actual state of mind of the police officer, but on whether a reasonable person, having the information available to and known by the police, would have that level of suspicion. . . .

“In determining whether a detention is justified in a given case, a court must consider if, relying on the whole picture, the detaining officers had a particularized and objective basis for suspecting the particular person stopped of criminal activity. When reviewing the legality of a stop, a court must examine the specific information available to the police officer at the time of the initial intrusion and any rational inferences to be derived therefrom.” (Citation omitted; internal quotation marks omitted.) State v. Clark, 297 Conn. 1, 9-10, 997 A.2d 461 (2010).

“The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary ... it may be the essence of good police work to adopt an intermediate response. ... A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.” (Citation omitted.) Adams v. Williams, 407 U.S. 143, 145-46, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972).

Next we consider whether law enforcement had probable cause to arrest the defendant. “In order for a warrantless felony arrest to be valid, it must be supported by probable cause. . . . The determination of whether probable cause exists under the fourth amendment to the federal constitution ... is made pursuant to a totality of circumstances test. . . . Probable cause exists when the facts and circumstances within the knowledge of the officer and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution to believe that a felony has been committed. . . . The probable cause test then is an objective one.” (Citations omitted; internal quotation marks omitted.) State v. Johnson, 286 Conn. 427, 435-36, 944 A.2d 297, cert. denied, 555 U.S. 883, 129 S. Ct. 236, 172 L. Ed. 2d 144 (2008). “Probable cause requires more than reasonable suspicion . . . but less than proof by a preponderance of the evidence.” (Citation omitted; internal quotation marks omitted.) State v. Robinson, 105 Conn. App. 179, 191, 937 A.2d 717 (2008), aff'd, 290 Conn. 381, 963 A.2d 59 (2009).

The defendant argues that the pretrial testimony revealed a lack of evidence to establish the requisite reasonable and articulable suspicion to stop him and the probable cause to arrest him. The defendant maintains this position despite the fact that the evidence provided by Gorman — who was allowed to testify when the pretrial suppression hearing was reopened— appears to have established how Beckwith came to know the defendant was involved in the crime. Having found, however, that the pretrial hearing testimony was properly opened, and Gorman’s testimony, therefore, properly considered, there is beyond any real doubt that law enforcement had probable cause to arrest (and reasonable suspicion to stop) the defendant.

We reach this conclusion on the basis that our Supreme Court has assigned great weight to knowledge provided to law enforcement by known informants who have “first-hand information” of a crime. (Internal quotation marks omitted.) State v. Smith, 257 Conn. 216, 225, 777 A.2d 182 (2001). In Smith, our Supreme Court found that an informant who had overheard the defendant planning or admitting criminal activity constituted a type of firsthand knowledge that was “ ‘highly relevant’ ” to establishing probable cause. Id.; see also State v. Johnson, supra, 286 Conn. 440 (“[establishing an informant’s basis of knowledge can ... be an important part of assessing probable cause under the totality of the circumstances approach”); State v. Velasco, 248 Conn. 183, 193, 728 A.2d 493 (1999) (agreeing with trial court’s determination that “the informant’s reported personal observation of narcotics sales by the defendant constituted a sufficient basis for the informant’s knowledge that the defendant had engaged in illegal narcotic[s] transactions” [internal quotation marks omitted]); State v. Morrill, 205 Conn. 560, 566, 534 A.2d 1165 (1987) (“The affidavit states that the informant personally observed the defendant sell mari[j]uana and [that] he heard the defendant state that he had ten pounds to sell. From these statements the magistrate could reasonably have inferred that the defendant was engaged in the ongoing criminal activity of selling mari[j]uana.”). Like the known informant in Smith, Beckwith was an identifiable witness who had firsthand knowledge of the defendant’s involvement in the robbery and shooting of the victim. The information she provided to Curet and Gorman therefore invested law enforcement with the reasonable suspicion to stop, and the probable cause to arrest, the defendant. Thus, the trial court did not abuse its discretion in denying the defendant’s motions to suppress evidence and statements obtained following his arrest by law enforcement officials.

The judgment is affirmed.

In this opinion the other judges concurred.

       Patrick Freeman was taken into custody because there was an outstanding warrant for his arrest.

       Because we find that the court did not abuse its discretion by reopening pretrial suppression hearing testimony, we also reject the defendant’s argument that the reopening of pretrial testimony allowed the state to create a supplemental record for appellate review, thereby offering this court additional evidence justifying the trial court’s denial of the defendant’s motions to suppress.

       Relaying what Beckwith told law enforcement, Gorman testified: “[T]he day of the shooting, March 31st . . . between 8:00 and 8:30, she had been in the D&D Market on Connecticut Avenue. She said that she saw her cousin [the defendant] inside the store talking on his Nextel walkie-talkie to another man. She said that she overheard [the defendant] say that he had shot somebody earlier in the day." (Emphasis added.)

       Predictive information of the defendant’s future behavior (that the defendant would arrive at the bus station via a taxicab, clad in a dark hooded sweatshirt), which was provided by an anonymous caller to the communication center and corroborated by law enforcement, also provided police with the reasonable suspicion to stop and probable cause to arrest the defendant. See Alabama v. White, supra, 496 U.S. 332 (finding that predictive information of respondent’s “future behavior” provided police with probable cause to make investigatory stop of respondent because “significant aspects of the caller’s predictions were verified” by police).


author: BORDEN, J.

text:
    BARBARA NOVAK ET AL. v. BRIAN GOODRICH ET AL.
    (AC 32726)
    DiPentima, C. J., and Lavine and Borden, Js.
    Argued October 17
    officially released December 13, 2011

      David W. Colwick, for the appellants (plaintiffs).

      Stacey D. Lafferty, for the appellee (defendant John Collinson).

      John M. Párese, with whom, on the brief, was John F. Buckley, Jr., for the appellees (defendant Robert Scott et al.).
   Opinion

BORDEN, J.

The plaintiffs, Barbara Novak and Gregory Dix, appeal from the judgment of the trial court granting the motions to dismiss their complaint filed by the defendants John Collinson and Robert and Melissa Scott. The court granted the defendants’ motions to dismiss on the ground that the plaintiffs failed to commence the action within the amount of time provided by General Statutes § 52-577c. On appeal, the plaintiffs claim that the court improperly concluded that they did not bring this action within two years of their discovery of the injury or damage to their property, as required by § 52-577c. We agree and, accordingly, reverse the judgment of the trial court.

The plaintiffs brought this action claiming that a furnace owned by the Scotts and serviced by Collinson was repaired incorrectly, resulting in oil leakage that caused personal and property damage. The defendants each moved to dismiss the complaint. The court granted the motions and rendered judgment dismissing the action. This appeal followed.

In their complaint, the plaintiffs alleged the following facts, the truth of which we assume for purposes of this appeal. See Gold v. Rowland, 296 Conn. 186, 200-201, 994 A.2d 106 (2010). On or about November 5, 2006, the Scotts, tenants on the property adjacent to the plaintiffs, which is owned by Brian Goodrich, contacted Valley Oil Company because they were having a problem with their furnace located on the exterior of their mobile home at 6 Blaine Avenue in Clinton. In response, Collinson, an employee of Valley Oil Company, repaired the Scotts’ furnace and installed a new fuel filter. At some point between November 6, 2006, and January 10, 2007, the oil filter leaked and continued to leak home heating oil onto the property of Goodrich and ultimately onto the plaintiffs’ property at 4 Blaine Avenue. The fuel oil eventually entered and polluted the well of the plaintiffs. As a result of the leakage and subsequent pollution of the well, the plaintiffs temporarily had to move out of their residence, replace their well and replace various other personal items.

The plaintiffs commenced this action on November 12, 2009. The defendants moved to dismiss the action for lack of subject matter jurisdiction, claiming that the two year limitation period contained in § 52-577c was not a traditional statute of limitations, but was instead a limitation on the action itself, and that the complaint on its face demonstrated that the plaintiffs had failed to meet the two year statutory limitation period. The plaintiffs filed an objection to the defendants’ motions to dismiss, claiming that (1) the statutory limitations period is not subject matter jurisdictional and, therefore, was not properly the subject of a motion to dismiss, (2) the complaint does not definitively establish when the plaintiffs discovered the damage to their property and (3) § 52-577c was intended to extend the three year statute of limitations contained in General Statutes § 52-577 by a period of two years. The defendants did not seek to introduce evidence in support of their motions to dismiss, choosing instead to rely on their reading of the complaint. The court granted the defendants’ motions to dismiss, determining that § 52-577c was, as the defendants argued, a limitation on the action itself. Further, based on its reading of the complaint, the court determined that, because the plaintiffs discovered the damage to their property on January 10, 2007, they were required to commence an action for their alleged losses prior to January 10, 2009, and that the action was not commenced until November 12,2009. Therefore, the court dismissed the action for lack of subject matter jurisdiction.

Before addressing the merits of the plaintiffs’ appeal, we note that they have not renewed, in this court, their claim that § 52-577c is not a limitation on the action itself but is, instead, a traditional statute of limitations that ordinarily would be required to be pleaded as a special defense. Thus, the parties have briefed and argued this appeal on the basis that § 52-577c is such a limitation on the action itself, and not a traditional statute of limitations. Although we do not necessarily agree with that position, we conclude that it is unnecessary to answer that question because we ordinarily decide an appeal on the basis on which it was decided in the trial court and presented to us on appeal; see Friedman v. Meriden Orthopaedic Group, P.C., 272 Conn. 57, 66, 861 A.2d 500 (2004); and because we conclude that the judgment must be reversed based on the defendants’ interpretation of § 52-577c. This, then, brings us to the merits of the plaintiffs’ appeal.

We first set forth the standard of review governing motions to dismiss. “Our standard of review of a trial court’s findings of fact and conclusions of law in connection with a motion to dismiss is well settled. A finding of fact will not be disturbed unless it is clearly erroneous. . . . [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts .... Thus, our review of the trial court’s ultimate legal conclusion and resulting [granting] of the motion to dismiss will be de novo. ... A motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts.” (Internal quotation marks omitted.) Henriquez v. Allegre, 68 Conn. App. 238, 242, 789 A.2d 1142 (2002).

“ [T]he interpretation of pleadings is always a question of law for the court .... The modem trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically. . . . Although essential allegations may not be supplied by conjecture or remote implication . . . the complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties.” (Citations omitted; internal quotation marks omitted.) Collins v. Anthem Health Plans, Inc., 266 Conn. 12, 24, 836 A.2d 1124 (2003).

We now turn to the pertinent language of the relevant statute. Section 52-577c (b) provides: “Notwithstanding the provisions of sections 52-577 and 52-577a, no action to recover damages for personal injury or property damage caused by exposure to a hazardous chemical substance or mixture or hazardous pollutant released into the environment shall be brought but within two years from the date when the injury or damage complained of is discovered or in the exercise of reasonable care should have been discovered.”

The plaintiffs assert that the court improperly dismissed the complaint because, based on the pleadings, it could not be determined when the plaintiffs discovered the damage to their property. More specifically, the plaintiffs contend that the only facts that reasonably can be gleaned from the complaint are when the leak began and that the facts as stated fail to delineate when the plaintiffs discovered that the fuel oil leaked onto their property and caused the damage. The plaintiffs further claim that the defendants failed to provide any additional evidence outside of the pleadings in support of their motions to dismiss. In response, the defendants argue that on the basis of the plaintiffs’ allegations the latest possible discovery date is January 10, 2007, and thus the plaintiffs’ claims are time barred pursuant to § 52-577c (b) because the claim against them was not commenced until approximately ten months after the two year time period.

We agree with the plaintiffs. We conclude that, reading the complaint in favor of the plaintiffs, it cannot be determined as a matter of law from the allegations of the complaint that the plaintiffs discovered or should have discovered the damage to their property on January 10, 2007.

Pursuant to § 52-577c, the two year limitation period begins to run on the date that the plaintiff discovers or should have discovered the injury or damage, not the date the injury was sustained or the negligent act occurred. When the plaintiffs discovered the damage to their property and when they should have discovered the injury with reasonable care are issues that, on the basis of the complaint, cannot be determined. The plaintiffs alleged in their complaint that the leakage occurred sometime after November 5, 2006, until January 10, 2007, and as a result of that leakage and the subsequent pollution of their well the plaintiffs incurred both personal and property damage. The complaint in no way specifies when the pollution of the well or damage to the property occurred; it only specifies that it happened at some point after January 10,2007. Furthermore, paragraph eight of the complaint explicitly states that the oil filter continued to leak after January 10, 2007, and provides no clear insight into when the leak may have stopped or when it was discovered to have made its way to the plaintiffs’ property. Thus, reading the complaint in favor of the plaintiffs, as we must, and in the absence of any evidence to the contrary, the complaint is devoid of any indication that the plaintiffs discovered, or reasonably should have discovered, the damage to the property within the two year statutory period.

The defendants, in their brief, isolate the specific portion of paragraph ten of the complaint, which states that “[t]he leakage happened from sometime after November 5, 2006 until January 10, 2007,” in order to support the conclusion that the plaintiffs knew the leak stopped on January 10, 2007, and, therefore, must have discovered that the oil leaked onto their property no later than that date. That allegation of the complaint, however, does not compel the inference that, because the leak allegedly occurred until January 10, 2007, the plaintiffs necessarily discovered the damage caused by the defendants’ acts of negligence as of January 10, 2007.

Individual portions of the complaint cannot be dissected and analyzed in a vacuum, as the defendants attempt to do here. Instead, the complaint must be considered in its entirety; see Collins v. Anthem Health Plans, Inc., supra, 266 Conn. 24; and in favor of the nonmoving party, and when we do so here there is nothing to indicate any specific date or time at which the plaintiffs discovered the damage. Therefore, as there are no allegations or supporting evidence to determine when the plaintiffs discovered or reasonably should have discovered that the fuel oil leaked onto their premises, the motions to dismiss should not have been granted.

The judgment is reversed and the case is remanded with direction to deny the motions to dismiss and for further proceedings according to law.

In this opinion the other judges concurred.

       The plaintiffs also named as defendants in their complaint Brian Goodrich, the owner of two plots of land known as 5 and 6 Blaine Avenue, which adjoin the plaintiffs’ property, and Valley Oil Company. Those defendants are not involved in this appeal. Accordingly, we refer herein to Collinson and the Scotts collectively as the defendants, and individually by name where necessary.

       General Statutes § 52-577c (b) provides: “Notwithstanding the provisions of sections 52-577 and 52-577a, no action to recover damages for personal injury or property damage caused by exposure to a hazardous chemical substance or mixture or hazardous pollutant released into the environment shall be brought but within two years from the date when the injury or damage complained of is discovered or in the exercise of reasonable care should have been discovered.”

       The plaintiffs also claim that using § 52-577c as the basis for the statute of limitations in this case would yield an unjust outcome, contrary to the legislature’s intent, because the three year statute of limitations set forth in General Statutes § 52-577 would then be shortened. In light of our conclusion, however, that the motions to dismiss were improperly granted, we need not reach this claim.

       In fact, during oral argument, counsel for the Scotts stated: “I can’t argue to you that the complaint unequivocally sets forth the date it was discovered.” Moments later, he further acknowledged, “I can’t tell you through the pleadings alone that the oil went from this properly to this property on said date; it was not alleged.”