author: Spallone, J.

text:
    New Haven Tobacco Company v. Frank P. Perrelli
    (4987)
    Hull, Spallone and Bieluch, Js.
    Submitted on briefs March 11
    decision released July 28, 1987

      Randall B. Chapnick filed a brief for the appellant (plaintiff).

      Paul M. Sabetta filed a brief for the appellee (defendant).
   Spallone, J.

The plaintiff is appealing from the judgment of the trial court invalidating a restrictive covenant contained in an employment contract signed by the plaintiff and the defendant. We find error.

On December 11,1980, the plaintiff employer and the defendant, then an employee of the plaintiff, entered into an employment contract that contained the following covenant: “Because of the importance and value of the information disclosed to the Employee, as part of the consideration for his employment, the Employee agrees that he will not directly or indirectly sell products similar to those of the Employer to any of the customers that he has dealt with or has discovered and become aware of while in the employ of the Employer for a period of twenty-four months from the termination of his employment.” The defendant remained in the employ of the plaintiff until November 6, 1981, when he voluntarily terminated the employment relationship. Shortly thereafter, the defendant opened his own wholesale tobacco business and did, in fact, sell “products similar to those of the Employer” to customers of the plaintiff during the twenty-four month period covered by the restrictive covenant.

The plaintiff subsequently brought an action against the defendant seeking money damages and, as later amended, injunctive relief. After a hearing, the court, Hadden, J., denied the plaintiffs application for a temporary injunction, holding that the restrictive covenant “does unduly interfere with the public interest and is unenforceable.” That decision was appealed to the Supreme Court, which dismissed the appeal suo motu, finding that an appeal taken from the denial of a temporary injunction is not taken from a final judgment.

The case was remanded to the trial court and, after a trial, the court, Reynolds, J., found for the defendant. The court explicitly adopted the reasoning contained in the earlier memorandum of decision by Judge Hadden, finding that the covenant unduly interfered with the public interest. The plaintiff has appealed from that judgment, claiming that the trial court erred as a matter of law in holding that the covenant was unenforceable solely on the ground that the covenant interfered with the public interest.

Anticompetitive or restrictive covenants are frequently found in two distinct classes of contracts: those between a vendor and a vendee when the goodwill of the subject business is being purchased; and those between an employer and an employee when an employer is trying to protect his trade secrets, customer lists or “territory.” Although the latter is not afforded the same degree of indulgence as is the former; Samuel Stores, Inc. v. Abrams, 94 Conn. 248, 253, 108 A. 541 (1919); a restrictive covenant in an employment contract need only be reasonable. “Under the common law, the well-settled rule is that an anticompetitive covenant ancillary to a lawful contract is enforceable if the restraint upon trade is reasonable.” Elida, Inc. v. Harmor Realty Corporation, 177 Conn. 218, 225, 413 A.2d 1226 (1979); Scott v. General Iron & Welding Co., 171 Conn. 132, 137, 368 A.2d 111 (1976); Domurat v. Mazzaccoli, 138 Conn. 327, 330, 84 A.2d 271 (1951); Mattis v. Lally, 138 Conn. 51, 54, 82 A.2d 155 (1951); Dick v. Sears-Roebuck & Co., 115 Conn. 122, 126, 160 A. 432 (1932).

Our Supreme Court has specified five areas in which the reasonability of a restrictive covenant must be evaluated: (1) the length of time the restriction is to be in effect; (2) the geographical area covered by the restriction; (3) the degree of protection afforded to the interest of the party in whose favor the covenant is made; (4) the restrictions imposed on the employee’s ability to pursue his occupation; and (5) the potential for undue interference with the interests of the public. Scott v. General Iron & Welding Co., supra.

In the present case, the trial court invalidated the covenant on the basis of the fifth category, finding that the covenant interfered with the public interest. The court reasoned that, unlike a covenant prohibiting solicitation, a covenant which prohibits sales to an employer’s former customers not only limits the employee’s activities, but also restricts the public’s freedom to choose with whom they will transact business. The court concluded that this restriction on the public’s right to a free and open marketplace rendered the covenant unenforceable.

We agree with the trial court that the burden inflicted on the public interest by the use of an “antisales” clause is greater than the one imposed by an “antisolicitation” clause. In evaluating the validity of either of these restrictive covenants, however, the determinant is not whether the public’s freedom to trade has been restricted in any sense, but rather whether that freedom has been restricted unreasonably. Roessler v. Burwell, 119 Conn. 289, 294, 176 A. 126 (1934). Because the trial court in this case invalidated the covenant on the ground that it restricted the public interest, without determining whether that restriction was reasonable, we must remand this matter for further findings by the trial court.

On remand, the trial court should evaluate the restrictive covenant under the five criteria set forth in Scott v. General Iron & Welding Co., supra. Because it is likely that the issue of whether the covenant unduly affects the public interest will arise again on remand, we offer the following remarks to clarify the scope of this requirement.

There are three factors which we consider important in determining the reasonableness of a covenant that is alleged to violate the public interest: (1) the scope and severity of the covenant’s effect on the public interest; (2) the probability of the restriction creating or maintaining an unfair monopoly in the area of trade; and (3) the interest sought to be protected by the employer. First, the restrictions contained in the covenant must be examined to determine how large a section of the populace will be affected if the covenant is enforced. For example, a typical anticompetition covenant which restricts an employee from engaging in the same business as his employer in a given geographical area, effectively prohibits all consumers of that service, who are located in that area, from transacting business with the employee. If the covenant imposes an antisolicitation or antisales restriction, however, the infringement of the public’s right only affects a limited number of individuals, namely, the former customers of the employer. After the scope of the limitations has thus been considered, the severity of the covenant must be evaluated in terms of both the length of the limitation and the geographical area it covers. Again, both must be reasonable.

Second, in order to protect the interests of the general public, it must be determined if the covenant at issue would tend to create or maintain a monopoly in favor of the employer in the specific area of trade being restricted. Although this factor has not been used in Connecticut to invalidate a restrictive covenant, it has been cited as a factor in other jurisdictions, and we deem it worthy of consideration. See, e.g., Cogley Clinic Inc. v. Martini, 253 Iowa 541, 549-50, 112 N.W.2d 678 (1962); Johnson v. Stumbo, 277 Ky. 301, 311, 126 S.W.2d 165 (1938); Wells v. Wells, 9 Mass. App. 321, 325, 400 N.E.2d 1317 (1980). Thus, in the present case, the trial court should determine whether the plaintiff was trying to create or maintain a monopoly in the wholesale tobacco business.

Third, the interest the employer seeks to protect must be weighed against the interest of the general public in an open marketplace. Although it is not an unreasonable restraint of trade for an employer to protect his stock of customers and their goodwill against appropriation by a former employee, this right may not be exercised in such a way as to overly burden the ability of consumers to obtain needed services. Thus, it must first be determined that the employer is protecting a legally recognized interest, and then that the means chosen to achieve this end do not unreasonably deprive the public of essential goods and services. When faced with this question, other jurisdictions have approached the issue similarly. See, e.g., Hebb v. Stump, Harvey & Cook, Inc., 25 Md. App. 478, 334 A.2d 563 (1975) (covenant prohibiting insurance agent from writing renewal business of former employer’s customers upheld); Mills v. Murray, 472 S.W.2d 6 (Mo. App. 1971) (covenant forbidding management consultant to solicit or service former clients not unreasonable); Bates Chevrolet Corp. v. Haven Chevrolet, Inc., 13 App. Div. 2d 27, 213 N.Y.S.2d 577 (1961) (covenant preventing automobile salesman from soliciting or accepting business from any of former employer’s customers for period of five years is enforceable); see also 6A A. Corbin, Contracts § 1394, pp. 89, 98; 2 Restatement (Second), Contracts § 188, comment g.

The final consideration which must be taken into account is the public interest in requiring those who have freely entered into an agreement, and who have received a benefit for doing so, to abide by the terms of the agreement. “ ‘The principle that agreements contrary to public policy are void should be applied with caution and only in cases plainly within the reasons on which that doctrine rests; and it is the “general rule . . . that competent persons shall have the utmost liberty of contracting and that their agreements voluntarily and fairly made shall be held valid and enforced in the courts.” Twin City Pipe Line Co. v. Harding Glass Co., 283 U.S. 353, 356-357, 51 S. Ct. 476, 75 L. Ed. 1112 [1931]; 17 Am. Jur. 2d, Contracts, § 174.’ Collins v. Sears, Roebuck & Co., 164 Conn. 369, 376-77, 321 A.2d 444 (1973).” Williams v. Vista Vestra, Inc., 178 Conn. 323, 328-29, 422 A.2d 274 (1979).

There is error, the judgment is set aside and the case is remanded for farther proceedings in accordance with law.

In this opinion the other judges concurred.

       It should be noted at the outset that the covenant at issue here is not a run-of-the-mill anticompetitive covenant. The majority of such covenants are drafted to prevent an employee from competing with his former employer in the same geographical area (i.e., where they would be vying for the same pool of potential customers), or to prevent an employee from soliciting and “stealing away” customers from the former employer. This covenant, however, prohibits the defendant, as an ex-employee of the plaintiff, from entering into any business dealings with customers whom the defendant knows once dealt with the plaintiff. This would be true whether or not the customers unilaterally and voluntarily chose to transfer their business to the defendant.

       The plaintiff argues that the trial court committed reversible error in its determination that a finding of an undue interference with the public interest, standing alone, could operate to invalidate the covenant, without reference to the four remaining categories. We disagree. The five-prong test enunciated above should be viewed as disjunctive rather than conjunctive. A finding of unreasonability in any one of the factors will be enough to hold the covenant unenforceable. See, e.g., Samuel Stores, Inc. v. Abrams, 94 Conn. 248, 255-56, 108 A. 541 (1919) (finding covenant unreasonable due to overly broad geographical restriction); Timenterial, Inc. v. Dagata, 29 Conn. Sup. 180, 277 A.2d 512 (1971) (although time restriction found reasonable, geographical area was not).

       That some degree of interference with the public’s rights to an accessible marketplace and a multifarious workforce is allowed can be clearly seen from the precedents in this area. In May v. Young, 125 Conn. 1, 2 A.2d 385 (1938), for example, the employee was prohibited, for a period of two years after leaving the plaintiffs employ, from entering into the employ of any of the plaintiff’s clients. The court refused to invalidate this covenant on grounds of public policy, acknowledging that the restriction “le[ft] open to the defendant all other opportunities for employment.” Id., 5. Similarly, in Torrington Creamery, Inc. v. Davenport, 126 Conn. 515, 12 A.2d 780 (1940), an employment contract clause was enforced which forbade the defendant from engaging in the same business as the plaintiff, whether as an employee, partner, manager, or otherwise, for two years after the termination of the defendant’s employment with the plaintiff. The court held that it was bound by the decision in May v. Young, supra, and noted that there was “nothing in the finding to indicate that the interest of the public will be prejudiced by [the covenant’s] enforcement.” Torrington Creamery, Inc. v. Davenport, supra, 520. Finally, in Scott v. General Iron & Welding Co., 171 Conn. 132, 368 A.2d 111 (1976), the employee had agreed not to participate in the ownership or management of, or become associated with, any business similar to the type of business conducted by the employer. This prohibition was to be in force for five years and precluded the defendant from engaging in the prohibited behavior anywhere in the state. In the former employee’s action for a declaratory judgment, the trial court held the agreement enforceable and this result was upheld on appeal. Id., 141. In each of these cases, the court upheld covenants that deprived all potential customers of the services of the former employee for the prescribed period. Furthermore, it is instructive to note that none of these cases make mention of the rights of third parties. Each of the employees in May, Torrington Creamery and Scott were restrained from accepting subsequent employment from third parties, yet the court never discussed the right of those potential employers to employ whomever they wished. Clearly, the public does not have an inherent right to do business with whomever it chooses when the individual of its choice has contracted away his ability to do business with the public.

       Some of the factors which were considered independently in the application of the first four prongs of the reasonability test again arise in the balancing required in the fifth prong, albeit in a slightly different manner. For example, even if the court has found that the employer does possess an identifiable interest which is reasonably protected by the covenant, thereby successfully meeting the test’s third prong, this interest is then considered in light of, and weighed against, the corresponding interference with the public interest. Similarly, after a determination has been made that the restrictive covenant is reasonable in both the time and geographical limitations imposed on the employee, these same limitations must be found to be reasonable restrictions on those members of the public affected by the covenant’s prohibitions.

       Where the good will of the employer’s customers has been generated by the efforts expended by the employer, such as the investment of his time and money, that good will is appropriately attributed to the employer rather than to the employee. The employer acquires, therefore, a proprietary right to his customers which he may protect for a reasonable time. May v. Young, 125 Conn. 1, 7, 2 A.2d 385 (1938). “[The employer] too is engaged in the struggle for prosperity and must bend every effort to gain and to retain the good will of his customers. It is the function of the law to maintain a reasonable balance, and this requires us to recognize that there is such a thing as unfair competition by an ex-employee . . . . ” 6A A. Corbin, Contracts § 1394, p. 89.


source: Caselaw Access Project

author: Hull, J. Daly, J.,

license: Public Domain

text:
    State of Connecticut v. Roland Boucher
    (5404)
    Hull, Daly and Bieluch, Js.
    Argued May 13
    decision released July 28, 1987

      Judith Rossi, deputy assistant state’s attorney, with whom, on the brief, were James G. Clark, assistant state’s attorney, and William R. Korey, legal intern, for the appellant (state).

      James J. Sullivan, for the appellee (defendant).
   Hull, J.

The defendant was charged with operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a (a), and failure to carry a registration in violation of General Statutes § 14-13. He was subsequently charged with failure to appear in violation of General Statutes § 53a-173. The defendant pleaded guilty to all charges except driving under the influence of intoxicating liquor (DUI). The defendant moved to dismiss the DUI charge claiming that the parking lot on which he was arrested was not “open to public use” in accordance with General Statutes § 14-212 (5).

The trial court granted the defendant’s motion to dismiss and subsequently granted the state leave to appeal. The sole issue presented by the state’s appeal is whether the parking area where the defendant was arrested was “open to public use,” thus bringing the lot within the purview of General Statutes § 14-227a (a).

The facts of this case are uncontradicted. At the time of the defendant’s arrest in Manchester, he was sitting in a motor vehicle parked on a Midas Muffler parking lot with the motor running. The defendant does not contest that he was intoxicated at the time. Thus, the only question before the trial court on the charge of DUI was whether the Midas Muffler parking lot was “open to public use,” as defined by General Statutes § 14-212 (5). If the Midas parking lot was open to public use, then the defendant is susceptible to criminal prosecution for DUI.

At trial, the defendant presented evidence that the lot was used exclusively by Midas employees and customers and that large signs inform the public that non-customers who park on the lot are subject to being towed at the owner’s expense. From these facts, the trial court found (1) that the parking area was private, and (2) that the parking area was not “open to public use” as that term is used by the definitional section of the motor vehicle statute, General Statutes § 14-212 (5).

The relevant language of General Statutes § 14-227a (a) provides: “No person shall operate a motor vehicle while under the influence of intoxicating liquor ... in any parking area for ten or more cars . . . .” Only parking areas which are “open to public use with or without charge”; General Statutes § 14-212 (5); are covered by the DUI statute. The state argues that the trial court erred in finding the Midas parking area not “open to public use” and that the plain language “open to public use” as a modifier of “parking area” brings lots like the Midas lot within the reach of the drunk driving statute. We disagree.

The state claims that the plain language of General Statutes § 14-212 (5) includes the Midas parking lot, and that, even if the statute is not clear on its face, the legislative history indicates the intention to include shopping center parking lots. This is not dispositive of the issue presented by this case, however. The defendant does not contest the fact that private shopping center parking lots are covered by the statute. The defendant contends that the Midas parking area, which was limited to use by Midas customers and employees, did not serve the general public. This use is distinguished from off street parking at shopping centers where the user is encouraged to patronize a variety of stores.

The state does not dispute that the use of the Midas lot was limited to a restricted group. The sole question is whether the use by the restricted group is sufficient to constitute public use. A public use exists where the public has a right to receive and enjoy the benefit of the use. Oxford v. Beacon Falls, 183 Conn. 345, 347, 439 A.2d 348 (1981). Where the use is for a “limited number of persons, or a restricted group,” it is not a public use. Ballentine’s Law Dictionary (3d Ed.). The court must give each word and phrase in legislative acts meaning. State v. Milum, 197 Conn. 602, 619, 500 A.2d 555 (1985); LaCroix v. Board of Education, 2 Conn. App. 36, 41, 475 A.2d 1110 (1984). “Open to public use” logically distinguishes malls and other shopping center parking lots from lots that are restricted to use by a discrete class, and where that restricted use is strictly enforced.

The Indiana Appellate Court faced a similar question in Bridgewater v. State, 441 N.E.2d 688 (Ind. App. 1982). In Bridgewater, the defendant was arrested for DUI while parked on a bank’s private parking lot. The court in Bridgewater found the bank parking lot open to public use because the bank acquiesced in the use of the lot by the general public after banking hours. No similar facts were presented by the state in this case. To the contrary, the defendant presented uncontradicted evidence that the lot was closed to the general public. Thus, the trial court could properly conclude that by giving the words “open to public use” their plain meaning; see Stoni v. Wasicki, 179 Conn. 372, 376-77, 426 A.2d 774 (1979); this parking lot was not open for use by the general public.

We are not called on to determine the application of the definition of “parking area” to every possible factual situation. For the facts presented in this particular case, we find the trial court properly held that the Midas Muffler parking area was not open to public use. The court cannot, by construction, read into legislation provisions not clearly stated. State v. Baker, 195 Conn. 598, 602, 489 A.2d 1041 (1985); Finkenstein v. Administrator, 192 Conn. 104, 110, 470 A.2d 1196 (1984); Metropolitan District v. Barkhamsted, 3 Conn. App. 53, 70, 485 A.2d 1311 (1984).

We thus conclude that the trial court correctly construed “open to public use” as used by General Statutes § 14-212 (5) to have a limited meaning not covering the Midas parking lot.

There is no error.

In this opinion Bieluch, J., concurred.

Daly, J.,

dissenting. The question before us is whether the parking lot, where the defendant was arrested, is “open to public use,” thus bringing the lot within the meaning of General Statutes § 14-227a (a). The role of the courts in cases of statutory construction is limited and, as the majority correctly stated, “we cannot read provisions into legislation.” The legislative history and related statutes, however, help eliminate any ambiguity in the statute. Accordingly, I dissent.

“It is basic, of course, that a statute is to be construed as a whole and that the words used therein must be interpreted in their plain and ordinary meaning ‘unless the context indicates that a different one was intended.’ Caldor, Inc. v. Heffernan, 183 Conn. 566, 570, 440 A.2d 767 (1981). If the language of the statute is clear and unambiguous, it is assumed that the words themselves express the intention of the legislature and there is no room for judicial construction. Mazur v. Blum, 184 Conn. 116, 118-19, 441 A.2d 65 (1981); Aaron v. Conservation Commission, 183 Conn. 532, 548, 441 A.2d 30 (1981); Doe v. Manson, 183 Conn. 183, 186, 438 A.2d 859 (1981). ‘When legislation contains a specific definition, the courts are bound to accept that definition.’ (Citations omitted.) International Business Machines Corporation v. Brown, 167 Conn. 123, 134, 355 A.2d 236 (1974); Toll Gate Farms, Inc. v. Milk Regulation Board, 148 Conn. 341, 347, 170 A.2d 883 (1961). ‘Where a statute does not define a term, it is appropriate to look to the common understanding expressed in the law and in dictionaries.’ Doe v. Manson, supra; Ziperstein v. Tax Commissioner, 178 Conn. 493, 432 A.2d 129 (1979). In applying the usual and accepted meaning to words not defined in a statute where to do so, as here, comports with the statutory purpose, one court stated that ‘[w]e derive the words’ usual and accepted meanings from sources presumably known to the statute’s enactors, such as their use in other legal contexts and dictionary definitions.’ Commonwealth v. Zone Book, Inc., 372 Mass. 366, 369, 361 N.E.2d 1239 (1977).” Johnson v. Manson, 196 Conn. 309, 316-17, 493 A.2d 846 (1985), cert. denied, 474 U.S. 1063, 106 S. Ct. 813, 88 L. Ed. 2d 787 (1986).

The issue in this case involves the definition of the phrase “open to public use.” Unlike the term “parking lot,” which is defined in § 14-212 (5), the legislature has not provided us with a definition of “open to public use.” A commonly understood meaning of the word “open” is “free to be entered and used.” Webster, New World Dictionary (1979). The term “public use” is defined to mean: “The use of a premises by the public at large, that is, the general unorganized public, rather than by one person, a limited number of persons, or a restricted group.” Ballentine’s Law Dictionary. If the majority were to apply the common ordinary meanings of “open” and “public use,” the result would have been that the Midas parking lot was covered by the DUI statute. It is clear that the parking lot falls within the scope of the statute because its users were unorganized and members of the public at large.

In addition to looking at the dictionary definition for the commonly understood meanings, courts may also look at the common understanding as expressed in case law. Ziperstein v. Tax Commissioner, 178 Conn. 493, 500, 423 A.2d 129 (1979). The majority relies on Oxford v. Beacon Falls, 183 Conn. 345, 347, 439 A.2d 348 (1981), wherein our Supreme Court premised its holding on Laurel Beach Association v. Milford, 148 Conn. 233, 235-36, 169 A.2d 748 (1961). Laurel Beach held (p. 336): “The general test of public use is the right of the public to receive and enjoy the benefit of the use.” The majority fails to apply this rationale to this case. Applying the above test to the facts presented clearly demonstrates that the Midas parking lot is open to public use. The Midas lot implicitly permits and encourages members of the general public to enter, to park their cars, and to engage in business with Midas. In that way, the public is invited to enjoy the benefit of the parking lot.

The majority asserts that the parking lot in this case is “logically” distinguishable from malls and other shopping center parking lots because the Midas lot is restricted to use by a discrete class. It is difficult, however, to understand the exact parameters of the discrete class to which the majority refers.

Moreover, there is nothing in the record that indicates that the restriction is ever enforced. The result attained by the majority renders § 14-227a (a) inapplicable to parking lots owned by single businesses, a lone bar for example or a grocery store, but applicable in lots owned by two or more businesses. Such a result is clearly illogical.

Finally, courts are required to read the statute in light of its purpose. Clearly our statutory prohibition against DUI is intended to protect the public from drunken drivers. Hickey v. Commissioner of Motor Vehicles, 170 Conn. 136, 139, 365 A.2d 403 (1976) (legislature enacted motor vehicle statutes for protection of lives and property of citizens). When the plain language of § 14-227a is read in light of this purpose, the statute clearly applies to parking areas such as the Midas lot, where members of the general public and their vehicles are vulnerable to the danger of drunken drivers.

The plain language of § 14-227a demonstrates the legislature’s intent to curb drinking and driving, as well as to protect members of the public, who are the potential victims. In 1971, the legislature reached out to protect the public by having parking lots which hold ten or more cars fall within the scope of § 14-227a, regardless of whether the area is publicly or privately owned. The statutory language must be construed to effectuate this purpose. Frazier v. Manson, 176 Conn. 638, 642, 410 A.2d 475 (1979); Breen v. Department of Liquor Control, 2 Conn. App. 628, 481 A.2d 755 (1984). The majority’s view that the Midas parking lot does not fall within the scope of § 14-227a frustrates this legislative purpose.

The legislative history of the statute is helpful in construing the statute. State v. West, 192 Conn. 488, 494, 472 A.2d 775 (1984); State v. Giorgio, 2 Conn. App. 204, 209, 477 A.2d 134 (1984). In 1971, the legislature passed House Bill Number 9096, which redefined the scope of General Statutes § 14-227a (1) by reducing the blood alcohol content level above which a person is considered under the influence, (2) by prohibiting DUI in parking lots for ten or more cars, and (3) by raising the minimum fine for first offenders. Statutory construction involves examination of the circumstances surrounding the enactment of the statute. Peck v. Jacquemin, 196 Conn. 53, 64, 491 A.2d 1043 (1985); Dukes v. Durante, 192 Conn. 207, 214-15, 471 A.2d 1368 (1984). Identifying the societal problems which the legislature sought to address may be particularly helpful in determining the true meaning of the statute. State v. Campbell, 180 Conn. 557, 562, 429 A.2d 960 (1980). It is clear that the societal problem the legislature sought to address in General Statutes § 14-227a was public safety in light of the dangers presented by drunken drivers. In carrying out this legislative intent, it is clear that General Statutes § 14-227a was intended to include a parking lot similar to the one in this case.

In addition to examining the societal problem which the legislature sought to address, it is illuminating to examine statements made by members of the legislature in regard to the particular bill. The majority, in footnote 3, quotes a passage by Representative John A. Carrozzella. I am unable, however, to come to a conclusion similar to that of the majority after reading it. “Now you know and I know that on such a parking lot, in the shopping centers certainly, a drunken driver is as big a menace if not more in that area than on the public highway.” (Majority opinion, footnote 3, supra, quoting 14 H.R. Proe., Pt. 5,1971 Sess., p. 2365.) The reference to shopping centers appears to be only an example, of “such a parking lot,” rather than a description of the only kind of lot covered by the statute.

On the basis of these reasons, I respectfully dissent.

       General Statutes § 14-227a (a) provides: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle on a public highway of this state or on any road of a district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a, or in any parking area for ten or more cars or on any school property (1) while under the influence of intoxicating liquor or any drug or both or (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight.” (Emphasis added.)

       General Statutes § 14-212 (5) provides: “ ‘Parking area’ means lots, areas or other accommodations for the parking of motor vehicles off the street or highway and open to public use with or without charge. ” (Emphasis added.)

       “In addition to lowering the blood alcohol content from .15 to .10, the bill does two other things that beef up our drunken driving statute: one, under present law, the only place you can be convicted of driving under the influence is on a public highway. The bill would extend that to parking lots where there is room to park more than ten cars. Now you know and I know that on such a parking lot, in the shopping centers certainly, a drunken driver is as big a menace if not more in that area than on the public highway.” 14 H.R. Proc., Pt. 5, 1971 Sess., pp. 2364-65, remarks of Representative John A. Carrozzella.

       Although the majority states that “the defendant presented uncontradicted evidence that the lot was closed to the general public,” the record indicates only that Midas, like many single commercial establishments, had posted signs which stated that the lot was for customers and employees only. There was no evidence that cars were ever ticketed or towed from the area.
      Various methods restricting the use of a parking lot to employees can be used which would clearly demonstrate that the lot is not “open to public use,” e.g., a card-activated gate or parking stickers. Such situations would be distinguishable from the parking lot in this case because the lot for “employees only” would not be one into which access by the general public is invited or permitted.


author: Berdon, J.

text:
    Harriet J. Manaker v. Barton L. Manaker
    (5113)
    Dupont, C. J., Bieluch and Berdon, Js.
    Argued March 10
    decision released July 28, 1987

      Wesley W. Horton, with whom were Alexandra Davis and, on the brief, Donald J. Cantor, for the appellantappellee (defendant).

      Cecily A.. Isbell, for the appellee-appellant (plaintiff).
   Berdon, J.

The defendant husband raises two issues in his appeal from the judgment dissolving the marriage between the parties. They are that the court erred (1) in admitting evidence of the financial resources of a third party who was living with the defendant, and (2) in requiring a standard of proof higher than a preponderance of the evidence in two instances. The plaintiff wife in her cross appeal claims the court erred in discharging her notice of lis pendens. We find no error in the defendant’s appeal and error in the plaintiff’s cross appeal.

The trial court in its memorandum of decision found the following facts. At the time of the dissolution of their twenty-three year marriage, the parties were both in their mid-forties. They have four children who are issue of the marriage, three of whom had reached their majority. Both parties contributed to the accumulation of the marital assets. The defendant husband is a successful businessman who owns and operates an automobile sales agency. The plaintiff, in addition to caring for the children and the home, did clerical work in the defendant’s business and held other employment. She entered law school in 1978, is now admitted to the bar and is employed on the legal staff of a Hartford based insurance company.

Around 1977, the relationship between the parties deteriorated and the defendant commenced an affair with a woman who lived in the neighborhood. In April of 1983, the defendant left the plaintiff and went to reside at the house of this woman (hereinafter housemate). The trial court, upon finding that the substantial cause of the breakdown of the marriage was the defendant’s affair and cohabitation with the housemate, dissolved the marriage and entered financial orders.

I

The defendant’s first claim of error relates to the trial court’s admitting into evidence, over his objections, testimony pertaining to the income, assets and net worth of the housemate for the purpose of determining alimony, support and assignment of assets. Clearly, any future benefit the defendant may receive from the possibility of the housemate transferring assets to him is, at best, speculative and should not have been received into evidence for the purpose of assessing the defendant’s future economic prospects. See Rubin v. Rubin, 204 Conn. 224, 229-30, 527 A.2d 1184 (1987); Krause v. Krause, 174 Conn. 361, 365, 387 A.2d 548 (1978).

The trial court, in its memorandum of decision, specifically stated that it would not consider the housemate’s finances in assigning marital assets. The trial court did, however, hold that the evidence of the housemate’s financial resources was relevant in determining the defendant’s living expenses. It is within the trial court’s discretion to consider this evidence for this purpose because the amount the housemate could contribute to their common household expenses was relevant in determining the defendant’s current expenses and, therefore, his ability to pay periodic alimony and support. McGuinness v. McGuinness, 185 Conn. 7, 12-13, 440 A.2d 804 (1981). It was particularly relevant in this case because, during the years the defendant and housemate lived together, she shared her income with the defendant, all their common household expenses were paid from the housemate’s checking account and she made large sums of money available to him. See Rubin v. Rubin, supra, 238-39.

Indeed, the defendant does not assign error because the trial court considered the evidence of the housemate’s finances as a factor in determining the defendant’s current expenses. Rather, the.defendant claims that since this evidence was also erroneously admitted as a possible asset which may come into his possession, the subsequent evidential limitation by the trial court could not cure the error.

The defendant relies on Kufferman v. Fairfield University, 5 Conn. App. 118, 497 A.2d 77 (1985), which held that the posttrial exclusion of inadmissible evidence after its initial admission at trial required a new trial. Kufferman, however, must be held to its facts. In Kufferman, we pointed out that it was “difficult to say . . . whether the evidentiary defect might have been cured . . . or whether the . . . plaintiffs would have introduced other evidence if they had known that this evidence was to be excluded.” (Citations omitted.) Id., 120-21. In the present case, however, the limitation on the use of the evidence of the housemate’s finances by the trial court in its memorandum of decision was favorable to the defendant and the plaintiff does not complain.

Surely, a trial judge is able to disregard evidence erroneously admitted or only consider that evidence for. the limited purposes for which it is admissible. “We have repeatedly acknowledged, in cases tried to a jury, that curative instructions can overcome the erroneous effect of statements that a jury should not have heard. ... It would be anomalous indeed to hold that an experienced trial court judge cannot similarly disregard evidence that has not properly been admitted.” (Citations omitted.) Ghiroli v. Ghiroli, 184 Conn. 406, 408-409, 439 A.2d 1024 (1981).

Under the circumstances of this case, where the post-trial limitation of the use of the evidence did not prejudice the defendant and where we have no basis for discountenancing the trial court’s report of the evidence it took into consideration in rendering its decision, it was not reversible error to limit the use of the evidence for its admissible purpose. There may, however, be “instances where it is so unclear what effect the disputed evidence might have had, or where its prejudicial effect is so overwhelming, that the fair administration of justice requires a new trial.” Id., 409. This is not such a case.

II

The defendant’s remaining claims of error are that the court imposed a standard of proof higher than a preponderance of the evidence in two instances. First, the defendant claims the trial court erred in disallowing his claim that he owed the Internal Revenue Service $306,000 as a result of deductions which were taken for tax shelters and other matters on the tax returns of the parties for prior years. This claim of error centers around the trial court’s use of the words “reasonable certainty” when it stated in its memorandum of decision that “[i]n this case the issue of tax liability has not been established with reasonable certainty.”

In determining the financial orders the court must consider the liabilities of each party; General Statutes §§ 46b-81 and 46b-82; including those owed to the Internal Revenue Service. “The burden of persuasion in an ordinary civil case is met if the evidence induces a reasonable belief that it is more probable than not that the fact in issue is true. This is the common preponderance of the evidence standard.” Clark v. Drska, 1 Conn. App. 481, 485-86, 473 A.2d 325 (1984). Surely, if the preponderance of the evidence standard is sufficient to satisfy the important issue of modification of custody; Cookson v. Cookson, 201 Conn. 229, 240, 514 A.2d 323 (1986); that standard also satisfies the degree of proof which is necessary for financial orders.

It is clear, however, that the trial court in its use of the phrase “reasonable certainty” had obvious reference to the probative value of evidence that the trier of fact must have available to determine whether it is more probable than not that the defendant would incur the tax liability. The defendant’s accountant, the only witness on the issue of tax liability, testified that in his opinion the defendant should pay to the Internal Revenue Service $306,000 by way of settlement. The trial court found in its memorandum of decision the following: “At most, the evidence was that there was a ‘likely exposure’ of $306,000. On cross-examination, the accounting witness was hesitant in his answers, giving the impression that he himself was not sure of his position .... All that can be concluded is that the defendant has a potential liability insofar as his income tax is concerned.” What the trial court was saying is that the testimony of the witness was merely speculative and had not reached the necessary level of certainty for its acceptance. Thus, the trial court had reference to the weight to be attached to the evidence (that is, the probative value of the evidence) and not to the required quantum of proof (that is, preponderance of the evidence) which was necessary to support the defendant’s claim. See VonRavensberg v. Houck-Carrow Corporation, 60 Or. App. 412, 653 P.2d 1297 (1982).

The defendant next argues that, when requiring him to account for those assets the plaintiff claimed he dissipated, the trial court imposed a standard of proof higher than a preponderance of the evidence. The party who has control over marital assets and is charged with their dissipation has the burden of accounting for those assets. Vaiuso v. Vaiuso, 2 Conn. App. 141, 146, 477 A.2d 678, cert. denied, 194 Conn. 807, 482 A.2d 712 (1984). This burden is met by a preponderance of the evidence. In this case, the defendant had the burden of accounting for $250,000 he received from the sale of an interest in a partnership and the trial court found he was unable to account for $61,878 of those assets.

The gravamen of the defendant’s claim is that, since the trial court cited in its memorandum of decision the case of In re Marriage of Smith, 128 Ill. App. 3d 1017, 477 N.E.2d 1008 (1984), which held in part that “the person charged with this dissipation is under an obligation to establish by clear and specific evidence how the funds were spent (emphasis added)”; id., 1022; it again applied this erroneous standard. There are three short answers to this claim. First, the mere citation of the case does not indicate that the trial court adopted a higher standard of proof. The court was obviously citing the case for the proposition that the defendant in this case would have the burden of accounting for these assets. Second, it is obvious that the Illinois court in using the language of “clear and specific evidence” had reference to the probative value of the evidence and not the quantum of the evidence which was necessary to sustain the burden of proof. This was made evident when the court went on to say immediately after making reference to “clear and specific evidence” the following: “General and vague statements that the funds were spent on marital expenses or to pay bills are inadequate to avoid a finding of dissipation.” (Emphasis added.) Id. Third, in the absence of any statement to the contrary by the trial court, as in the present case, it will be assumed that the preponderance of the evidence burden of proof was used. Kavarco v. T.J.E., Inc., 2 Conn. App. 294, 297, 478 A.2d 257 (1984).

In both instances—proof of the defendant’s potential tax liability and the accounting by the defendant for those assets which it is claimed had been dissipated—we are satisfied that the trial court applied the preponderance of the evidence standard of proof.

Ill

The sole issue raised in the plaintiff’s cross appeal is whether the trial court erred in discharging the plaintiff’s notice of lis pendens on the ground that the copy of the lis pendens was served on the defendant before being recorded on the land records. Section 52-325 (c) of the General Statutes provides in part that the lis pen-dens shall not be valid to constitute constructive notice “unless the party recording such notice, not later than thirty days after such recording, serves a true and attested copy of the recorded notice of lis pendens upon the owner of record of the property affected thereby.”

Since a lis pendens under § 52-325 is a creature of statute, the party who invokes its provisions must comply with the statutory requirements. H & S Torrington Associates v. Lutz Engineering Co., 185 Conn. 549, 553, 441 A.2d 171 (1981). Nevertheless, the provisions of the statute should be liberally construed to implement reasonably and fairly its remedial intent of giving notice of claims pertaining to the real property which is the subject of the litigation. See Dorr-Oliver, Inc. v. Willett Associates, 153 Conn. 588, 593, 219 A.2d 718 (1966) (garnishment statutes should be liberally construed).

In construing a statute, “[w]e need hardly say here that ‘[i]t is ancient [and yet enduring] wisdom that statutes should be interpreted so as to effectuate their manifested purpose or object.’ 2A Sutherland, Statutory Construction (4th Ed. Sands) § 58.06, p. 474.” McGaffin v. Roberts, 193 Conn. 393, 407, 479 A.2d 176 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1747, 84 L. Ed. 2d 813 (1985). The obvious purpose of furnishing a copy of the notice of lis pendens upon the owner is to give him actual notice that one has been filed. Surely this purpose is satisfied if the server of the notice serves the defendant with a true and attested copy of the notice which will be recorded on the land records.

To require that it be recorded before it is served on the defendant is splitting hairs for which no purpose has been advanced. Taking into account the purpose of the legislative requirement and the “generous construction” which we must give the statute; see Seaman v. Climate Control Corporation, 181 Conn. 592, 597, 436 A.2d 271 (1980); service of a true and attested copy of that notice before filing it on the land records satisfies the requirements of § 52-325 (c) of the General Statutes. Accordingly, we find error in the trial court’s discharge of the lis pendens.

There is no error on the defendant’s appeal. There is error on the plaintiff’s cross appeal, the judgment discharging the lis pendens is set aside and the case is remanded with direction to deny the defendant’s motion to discharge.

In this opinion the other judges concurred.

       Of course, evidence inadmissible for one purpose may be admissible for' another. Guarnaccia v. Wiencenski, 130 Conn. 20, 25, 31 A.2d 464 (1943); Woodward v. Waterbury, 113 Conn. 457, 464, 155 A. 825 (1931).

       Evidence, although uncontradicted, need not be believed or accepted by the trier of fact. Anderson v. Anderson, 191 Conn. 46, 55, 463 A.2d 578 (1983). “The factfinding function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties, which is not fully reflected in the cold, printed record which is available to us. Appellate review of a factual finding, therefore, is limited both as a practical matter and as a matter of the fundamental difference between the role of the trial court and an appellate court.” Lupien v. Lupien, 192 Conn. 443, 445, 472 A.2d 18 (1984).

       By our ruling on this issue, we state no opinion on the validity of the lis pendens before the time it was actually recorded.


author: Per Curiam.

text:
    Theodore Elliss v. Gerald A. Ronning
    (5455)
    . Dupont, C. J., Borden and Spallone, Js.
    Submitted on briefs June 1
    decision released July 28, 1987

      Daniel V. Presnick filed a brief for the appellant (plaintiff).

      Jeffrey A. Blueweiss filed a brief for the appellee (defendant).
   Per Curiam.

The plaintiff is appealing from the judgment rendered after the trial court granted the defendant’s motion for nonsuit. The plaintiff claims that the trial court erred (1) in its ruling that a judgment of non-suit should be rendered against the plaintiff, (2) in overruling an order of another trial court, and (3) in failing to grant the plaintiff’s motion to open the nonsuit. We find no error.

The plaintiff brought suit in 1984 for injuries sustained as a result of a 1982 motor vehicle accident allegedly caused by the defendant. On April 12, 1985, the defendant filed interrogatories and requests for production. After the plaintiff failed to respond fully to these discovery requests, the defendant, pursuant to Practice Book § 231, filed a motion for nonsuit on June 19, 1985. On July 3, 1985, the plaintiff filed answers to the defendant’s interrogatories, but failed to respond to the requests for production.

As of March, 1986, the plaintiff had not fully complied with the defendant’s discovery motion, prompting the defendant to file another motion for nonsuit. This motion was claimed to the short calendar numerous times and it was ultimately granted by the trial court, Fracasse, J., on July 1, 1986. The plaintiff’s motion to open the judgment of nonsuit was later denied.

The plaintiff first claims that the trial court erred in granting the defendant’s motion for nonsuit. The record reveals, however, that the court followed the appropriate Practice Book provision, Practice Book § 231. This section provides, in pertinent part, that “[i]f any party has failed to answer interrogatories or to answer them fairly ... or has failed to respond to requests for production . . . the court may, on motion, make such order as the ends of justice require. Such orders may include the following: (a) the entry of a nonsuit or default against the party failing to comply . . . .” Our review of the record fails to reveal that the trial court abused its discretion in granting the motion.

Next, the plaintiff contends that the trial court erred by rendering a judgment of nonsuit when an earlier order of the court, Reynolds, J., had required the defendant to meet with the plaintiff to discuss the incomplete interrogatories and to then file an affidavit documenting the conference. Even if we assume that Judge Fracasse’s order overrode an earlier ruling of Judge Reynolds, the record does not reveal why Judge Fracasse did so. We have repeatedly stated that it is the appellant’s responsibility to provide an adequate record for review; Practice Book § 4061; Barnes v. Barnes, 190 Conn. 491, 494, 460 A.2d 1302 (1983); and that where the factual or legal basis of the trial court’s decision is unclear, the appellant should file a motion for articulation pursuant to Practice Book § 4051. Thiel Realty Corporation v. Culligan Water Conditioning Co., 9 Conn. App. 191, 193, 517 A.2d 1052 (1986). In the absence of such action by the plaintiff, we must presume that Judge Fracasse considered all the facts before him and concluded that the entry of a nonsuit was appropriate, regardless of any earlier orders. In so doing, he was clearly acting within the scope of his discretionary powers. “A judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings, and if the same point is again raised he has the same right to reconsider the question as if he had himself made the original decision. Wiggin v. Federal Stock & Grain Co., 77 Conn. 507, 516, 59 Atl. 607 [1905]; Pettee v. Hartford-Connecticut Trust Co., 105 Conn. 595, 609, 136 Atl. 111 [1927].” Santoro v. Kleinberger, 115 Conn. 631, 638, 163 A. 107 (1932).

Finally, the plaintiff contends that the trial court abused its discretion by failing to open the nonsuit. “A trial court’s denial of a timely motion to open a judgment [of nonsuit] will not be disturbed on appeal unless the court acted unreasonably and in clear abuse of its discretion.” DeSimone v. Vitello, 6 Conn. App. 390, 392, 505 A.2d 745 (1986); see also Yanow v. Teal Industries, Inc., 196 Conn. 579, 583, 494 A.2d 573 (1985); Gionfrido v. Wharf Realty, Inc., 193 Conn. 28, 33-34, 474 A.2d 787 (1984); Pereria v. Blau, 2 Conn. App. 377, 379, 478 A.2d 1044 (1984). We find no abuse of discretion here.

There is no error.

       The defendant claims that he was never notified of any ruling by Judge Reynolds and questions whether one was made. The record reveals, however, that motion for nonsuit contains the following scrawled notation: “Off-pending conference and affidavit. Reynolds 4/21/86.”

       We do not intend to depart from the principle that “[a] judge should hesitate to change his own rulings in a case and should be even more reluctant to overrule those of another judge. . . . Judge shopping is not to be encouraged and a decent respect for the views of his brethren on the bench is commendable in a judge.” (Citation omitted.) Breen v. Phelps, 186 Conn. 86, 99-100, 439 A.2d 1066 (1982). In may be possible for a judge to abuse this broad power to reconsider issues once decided, but the plaintiff has failed to show that such is the case here.


author: Dupont, C. J. Daly, J.,

text:
    State of Connecticut v. Cassius Holloway
    (5144)
    Dupont, C. J., Hull and Daly, Js.
    Argued May 12
    decision released July 28, 1987

      Stephen V. Moran, deputy assistant public defender, for the appellant (defendant).

      Leah Hawley, deputy assistant state’s attorney, with whom, on the brief, was David Gold, assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

The two issues of this case are whether the trial court should have dismissed a charge of carrying a dangerous weapon as prohibited by General Statutes § 53-206, and whether the court erred in its instructions on self-defense.

The defendant and the victim began a fight, during the course of which the defendant stabbed the victim with a knife which had a blade of three and one-half inches in length. The defendant’s testimony portrayed the victim as the aggressor of the fight, and the defendant claimed that he was forced, through fear for his own safety, to defend himself with his knife.

The defendant moved to dismiss the count of carrying a dangerous weapon on the ground that the knife did not fall within the proscribed weapons specifically enumerated in General Statutes § 53-206. The defendant was charged with a violation of that portion of the statute which prohibits the carrying of a “dangerous . . . instrument.” The defendant’s claim of error requires a resolution of whether the carrying of a knife with a blade of less than four inches in length is included within the phrase “any other dangerous . . . instrument” as provided in General Statutes § 53-206. The state argues that the. definition provided in General Statutes § 53a-3 (7) applies to § 53-206, and that, therefore, the carrying of a knife with a blade of less than four inches in length may be a dangerous instrument when it is used under circumstances in which it is capable of causing death or serious physical injury.

The defendant argues that to construe the language of § 53-206 to include knives with a cutting edge of less than four inches would render superfluous the enumeration in the statute of various knives which are specifically prohibited from being carried by persons in this state, and in particular the words “or any knife the edged portion of the blade of which is four inches or over in length.”

The penal code’s definitions, as provided in General Statutes § 53a-2, apply to all offenses of the code and to offenses defined in the general statutes “unless otherwise expressly provided or unless the context otherwise requires . . . .” Section 53-206 is part of the general statutes and not the penal code. That statute does not expressly provide that the definitions of § 53a-3 shall not apply, nor does § 53a-3 (7) provide that its definition shall not apply to § 53-206. When the legislature has intended that a particular offense contained in the general statutes should be exempted from the definitions contained in General Statutes § 53a-3, it has said so. See General Statutes § 53a-3 (6); State v. Scully, 195 Conn. 668, 677-78 nn.13 and 14, 490 A.2d 984 (1985). We conclude, therefore, that the penal code definition of “dangerous instrument” applies to § 53-206 “unless the context [of General Statutes § 53-206] otherwise requires . . . .” General Statutes § 53a-2.

The context in which the words “or any other dangerous .... weapon or instrument” are used is in a statute entitled “Carrying and sale of dangerous weapons.” General Statutes § 53-206. The purpose of the statute is to prevent the carrying of a dangerous weapon without a permit.

The statute does not specifically enumerate all of the dangerous weapons which a person may not carry without a permit, but rather should be read to include, within its purview, the carrying of any dangerous weapon whether or not specifically listed. Several cases decided prior to the adoption of General Statutes §§ 53a-2 and 53a-3 have done so. For example, the statute does not specifically prohibit the carrying of all types of rifles but does prohibit the carrying of an air rifle. It has been held, nevertheless, that a loaded .22 caliber rifle is a dangerous weapon within the terms of the statute. State v. Mallette, 153 Conn. 584, 586-87, 219 A.2d 447 (1966); see also State v. Arpino, 24 Conn. Sup. 85, 87-90, 186 A.2d 827 (1962); State v. Ryan, 23 Conn. Sup. 425, 428-29, 184 A.2d 183 (1962); but see State v. Harris, 5 Conn. Cir. Ct. 551, 553, 258 A.2d 319 (1968).

The articles specifically mentioned in § 53-206 are generally recognized as dangerous weapons per se. State v. Ryan, supra, 428. “It is obvious that there are many articles other than those specifically mentioned which might be included within the scope of ‘dangerous or deadly weapon,’ if they were used or carried with intention to use them as weapons. Articles which are manufactured and generally used for peaceful and proper uses . . . may become dangerous or deadly weapons when they are used or carried for the purpose of assault or defense. Ordinarily, where general words follow a particular enumeration, they are intended to apply only to matters of the same general character. . . . However, the evil which was under legislative consideration ... in the original enactment of § 53-206 . . . was the danger of assaults with dangerous and deadly weapons, and therefore certain specified articles were mentioned, not to the exclusion of other potentially dangerous or deadly weapons, but to their inclusion by the use of the words ‘or any other dangerous or deadly weapon.’ . . . [T]he construction of this phrase cannot be limited to weapons of the same general character.” (Citation omitted.) Id., 428-29.

We hold that the definition of § 53a-3 (7) applies to § 53-206, and the words “any other dangerous or deadly weapon or instrument” as used in the context of § 53-206 do not apply solely to weapons of the same precise kind enumerated in that statute. The trial court, therefore, did not err in denying the defendant’s motion to dismiss the charge of carrying a dangerous weapon.

The defendant’s second claim of error is that the trial court erred in failing to instruct the jury that the state had the burden of disproving his defense of self-defense beyond a reasonable doubt. The evidence presented at trial supported the defendant’s request for a self-defense charge. The defendant properly requested that the court charge the jury on self-defense, and excepted to the court’s failure to charge the jury on the state’s burden of disproving the defense. He was entitled to have the jury properly and adequately instructed on that theory of defense. State v. Folson, 10 Conn. App. 643, 646, 525 A.2d 126 (1987). The defense of self-defense is raised by way of justification, and when such defense is asserted “the state shall have the burden of disproving such defense beyond a reasonable doubt.” General Statutes § 53a-12; State v. Miller, 186 Conn. 654, 663, 443 A.2d 906 (1982); State v. Fletcher, 10 Conn. App. 697, 707-708, 525 A.2d 535 (1987); State v. Folson, supra, 647; State v. Fullard, 5 Conn. App. 338, 340, 497 A.2d 1041 (1985). On review, we must examine the court’s charge to determine whether the instructions were proper, adequate, clear and comprehensible, and served to provide guidance to the jury in applying the law to the facts of the case. State v. Fletcher, supra, 704.

As the state has conceded and our review of the transcript has revealed, the trial court’s instructions did not specifically charge the jury that the state bore the burden of disproving the defense to the crime of assault in the second degree beyond a reasonable doubt. The state argues, however, that the charge read as a whole was adequate to instruct the jury on that burden of proof because the court charged the jury on the state’s burden in connection with the crime of carrying a dangerous weapon.

“A fundamental element of due process is the right of a defendant charged with a crime to establish a defense. . . . This fundamental constitutional right includes properjury instructions on the elements of self-defense so that the jury may ascertain whether the state has met its burden of proving beyond a reasonable doubt that the assault was not justified.” State v. Miller, supra, 660-61; see also State v. Rouleau, 204 Conn. 240, 528 A.2d 343 (1987).

As the state concedes, self-defense is not a defense to the charge of carrying a dangerous weapon. It is a defense to the charge of assault in the second degree. The failure of the court to instruct the jury on the state’s burden of disproving the defense of self-defense on the charge of assault in the second degree left the jury without a knowledge of the law which it could apply to the facts relevant to that charge. That lack precluded the jury from considering whether the state had proved beyond a reasonable doubt that the defense had been disproved. Without such knowledge, the jury was left to determine for itself whether the instruction given by the court as to the state’s burden of disproving self-defense ill connection with the crime of carrying a dangerous weapon also applied to the crime of assault in the second degree. A particular offense and its justification, if any, must be considered together. State v. Cavros, 196 Conn. 519, 528, 494 A.2d 550, cert. denied, 474 U.S. 904, 106 S. Ct. 233, 88 L. Ed. 2d 232 (1985). A jury must receive a proper instruction on justification in order for it to determine whether the state has met its burden of disproof. State v. Fletcher, supra, 708. It cannot make such a determination without the knowledge that the state has that burden.

The defendant here was charged with two separate and distinct crimes. The jury should not have had to imply that the charge on self-defense as to one crime was applicable to the other crime. The jury was left without a knowledge of the law applicable to the defendant’s claim of self-defense as to the charge of assault in the second degree. We conclude that it was reasonably possible that the jury was misled. See State v. Rouleau, supra; State v. DeJesus, 194 Conn. 376, 388, 481 A.2d 1277 (1984).

Theré is error as to the count of assault in the second degree, the judgment is set aside as to that count and the case is remanded for a new trial.

In this opinion, Hull, J., concurred.

Daly, J.,

dissenting. I disagree with the majority to the extent that I feel that State v. Harris, 5 Conn. Cir. Ct. 551, 258 A.2d 319 (1969), is still good law and was not changed by the advent of the state penal code. The trial court should have dismissed the charge of carrying a dangerous weapon. I concur with the remainder of the majority opinion.

       General Statutes § 53-206 provides in pertinent part: “(a) Any person who carries upon his person any slung shot, air rifle, BB. gun, blackjack, sand bag, metal or brass knuckles, or any dirk knife, or a switch knife, or any knife having an automatic spring release device by which a blade is released from the handle, having a blade of over one and one-half inches in length, or stiletto, or any knife the edged portion of the blade of which is four inches or over in length, or any martial arts weapon and electronic defense weapon, as defined in section 53a-3, or any other dangerous or deadly weapon or instrument, unless such person has been granted a written permit issued and signed by the first selectman of a town, the mayor or chief of police of a city or the warden of a borough, authorizing such person to carry such weapon or instrument within such town, city or borough, shall be fined not more than five hundred dollars or imprisoned not more than three years or both.”

       The defendant was charged in a two count information with the crimes of assault in the second degree in violation of General Statutes § 53a-60 (a) (2), and of carrying a dangerous weapon in violation of General Statutes § 53-206. The jury found him guilty on both counts.

       General Statutes § 53a-3 (7) provides in pertinent part: “ ‘Dangerous instrument’ means any instrument, article or substance which, under the circumstances in which it is used or attempted or threatened to be used, is capable of causing death or serious physical injury . . . .”

       General Statutes § 53a-12 provides in pertinent part: “(a) When a defense other than an affirmative defense, is raised at a trial, the state shall have the burden of disproving such defense beyond a reasonable doubt.”

       The portion of the instructions to the jury which the state claims was adequate to inform the jury of the state’s burden of disproving self-defense beyond a reasonable doubt states as follows:
      “You have to decide, ladies and gentlemen, based upon the evidence, upon the testimony, whether or not these exceptions apply, whether or not there is, as I defined the law of justification or so-called self-defense, whether or not that even applies in this case as has been testified, and within the definitions of the applicable law as I have given it to you.
      “I want to go back to the second count for a moment which, as you know, charges Cassius Holloway with carrying a dangerous instrument. I want to make one thing clear.
      “The evidence has been that the blade in question was, I don't recall the exact measurement, I am sure you will and you will consider that, but that the state is not claiming, as I understand it, that the knife is, per se, in and of itself a dangerous instrument or deadly weapon.
      “So if the state does not prove beyond a reasonable doubt that Cassius Holloway’s actions were not justifiable self-defense, then any use of a knife, and I believe that the testimony was the blade was 3 inches or so, any use of the knife in question, state’s Exhibit C, with this blade of approximately 3 inches, would not be a violation of Section 53-206 (a) which is the statutory number of carrying a dangerous weapon; again, for the reason that there is nothing per se illegal about a pocketknife with a 3 inch blade.
      “The blade of the knife in question does not make it per se a dangerous instrument; it all depends on the use or attempted use of the knife in question. If the state does not prove [disprove] beyond a reasonable doubt that it was used for justifiable self-defense, then Cassius Holloway has not committed the crime as listed and set forth in the second count of the Information of carrying a dangerous instrument, in violation of Section 53-206 (a).”

       It was error for the court to charge on the defense of self-defense as to the charge of carrying a dangerous weapon. See General Statutes § 53a-16. The error, however, benefited the defendant and did not deprive him of a fair trial as to that charge. State v. Cochran, 191 Conn. 180, 187-88, 463 A.2d 618 (1983). A charge given on a superfluous defense of self-defense which does not prejudice a defendant does not lead to the conclusion that it was reasonably possible for a jury to be misled. State v. Silveira, 198 Conn. 454, 468, 503 A.2d 599 (1986).


author: Stoughton, J.

text:
    State of Connecticut v. Peter J. Butler
    (4329)
    Hull, Daly and Stoughton, Js.
    Argued February 10
    decision released July 28, 1987

      Timothy H. Everett, with whom, on the brief, were Stephen Prignano and Mona Camhe, certified legal interns, for the appellant (defendant).

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

This is an appeal from a judgment of conviction after a trial to a jury. In a substitute information, the defendant was charged with sexual assault by threat of use of force in the first degree, a violation of General Statutes § 53a-70 (a). He has appealed from the judgment, claiming thát the trial court committed the following errors: (1) its general instruction on the rule of circumstantial evidence and its reference to that rule during its instructions on the elements of sexual assault and accessorial liability diluted the state’s burden of proof beyond a reasonable doubt; (2) its instructions on sexual assault diluted the state’s burden of proof when it charged the jury that the standard to be applied was whether a reasonably prudent person, under all the circumstances then and there prevailing, would more probably than not be caused to fear physical injury by such threat of use of force; and (3) it violated the defendant’s rights of confrontation, compulsory process and due process of law when it excluded certain evidence pursuant to General Statutes § 54-86f (4).

The jury might reasonably have found the following facts. On March 3,1984, the defendant was with John Rainieri and Nicholas Mainiero at the Trumbull Shopping Mall. There, they met the victim, a young woman who had known Mainiero before that date. The young woman accepted an invitation to go to a party in Stratford. The four left the mall in the defendant’s automobile, but instead went to the defendant’s apartment. They went to a bedroom, and one of the men produced a bottle of rum. Each of the men drank, and the young woman also had some rum after she had been threatened with harm if she refused. The victim went to a bathroom, where Mainiero tried to kiss her and to take her shirt off. She said that she wanted to go home, and she went back to the bedroom. When she tried to get up from a chair, she fell to the floor. The victim pulled herself onto the bed, where Mainiero pulled her to himself. Rainieri and the defendant left the room, after which Mainiero forced the victim to have intercourse with him. Rainieri and the defendant returned to the room, and Rainieri and Mainiero forced the victim to perform oral sex on them. Finally, the defendant had intercourse with the victim. During these events, the victim was verbally and physically threatened by Mainiero and Rainieri. The defendant did not himself utter any threats, but he was present in the room much of the time. After the defendant was finished, the victim was driven home where she became hysterical and told her sister that she had been raped.

The identity of the defendant was not an issue. The real issue in the case was whether the defendant had compelled the victim to engage in sexual intercourse by the threat of use of force which reasonably caused her to fear physical injury. There was no evidence that the defendant had himself uttered threats, but there was evidence that the other participants did so and that the defendant was present while some of those threats were made. The trial court charged on accessorial liability, and the jury could reasonably have found that the three men each participated in the assault.

The defendant’s first claim of error arises out of the use by the trial court of a “more probable than not” instruction on circumstantial evidence. This claim of the defendant is supported neither by a request to charge nor by an exception to the charge as given. Nevertheless, review of this kind of charge has been granted in several recent cases under the doctrine of State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). See State v. McKenna, 11 Conn. App. 122, 134-35, 525 A.2d 1374 (1987), and cases cited therein.

In its general instructions, the court charged the jury as follows: “Proof beyond a reasonable doubt does not mean that you must have direct evidence supporting a fact. You may apply the rule of circumstantial evidence. This rule involves the offering of evidence of facts from which you are asked to infer the existence of another fact or set of facts. Such an inference may be made provided two elements are satisfied. One, that the fact from which you are asked to draw the inference has itself been proven to your satisfaction beyond a reasonable doubt. And, two, that the inference asked to be drawn is logical and reasonable, and strong enough so that you can find that it is more probable than not that the fact to be inferred is true.” (Emphasis added.)

The state has the burden of proving beyond a reasonable doubt every element of the crime charged. The “more probable than not” instruction has been held to be erroneous, and we must determine whether it is reasonably possible that the jury was misled by the instruction as to the state’s burden of proof of a disputed element which, we conclude, is characteristically proven by circumstantial evidence. See State v. Perez, 10 Conn. App. 279, 283-85, 523 A.2d 508 (1987).

The trial court instructed the jury that there are three elements to the crime of sexual assault in the first degree as charged: “One, a defendant compels another person to engage in sexual intercourse; two, by the threat of use of force against such other person; three, which reasonably causes such person to fear physical injury.”

That the defendant had sexual intercourse with the victim was not a contested issue. Whether it was an act resulting from the threat of force was, however, an issue. Compulsion is an essential element of this crime; State v. Rodgers, 198 Conn. 53, 60, 502 A.2d 360 (1985); which must be proven beyond a reasonable doubt.

Whether or not there was a threat of use of force arising from the defendant’s participation in the events which took place, whether or not the victim was reasonably caused to fear physical injury, and whether or not she was thus compelled to have sexual intercourse with the defendant, were all facts to be inferred from the evidence.

Because in this case the defendant did not himself utter any threats before engaging in intercourse with the victim, he asserts that he did not threaten the use of force against the victim. Since the defendant was charged in the information with threatening the use of force and there was no direct evidence that the defendant threatened to use force, the state was required to prove that element of the crime through circumstantial evidence and the inferences drawn therefrom. That is, to prove by inference from the defendant’s presence during, and complicity and or acquiesence in, the use of force and threats of use of force by the other men involved (which had been shown through direct evidence), that the defendant threatened the use of force in compelling the victim to engage in sexual intercourse with him.

The defendant argues that the court’s instruction on circumstantial evidence diluted the state’s burden of proving these inferences beyond a reasonable doubt. Although the court instructed the jury that the state bore the burden of establishing all of the elements of the crime beyond a reasonable doubt, it did not rectify its general charge on circumstantial evidence. See State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 1598 (1986). The jury was properly instructed that the defendant must only have possessed a general intent to do the acts which the statute prohibits, and that ordinarily this must be inferred. It was also instructed, however, that inferences drawn from circumstantial evidence could be met by an erroneous more probable than not standard.

This court has recently held that the analysis used by the appellate courts of this state in Whelan and Rodgers type cases applies not only to erroneous intent instructions, but also to “an erroneous charge which taints the jury’s deliberative process or any disputed element of the crime charged which is primarily dependent on circumstantial evidence for its proof.” State v. Sullivan, 11 Conn. App. 80, 96, 525 A.2d 1353 (1987).

As in Sullivan, this case particularly called for a proper instruction on the meaning and utilization of circumstantial evidence. Since the jury had been told that it could draw an inference from the facts proven, where “it is more probable than not that the fact to be inferred is true,” the jury was permitted to draw an inference on whether the defendant threatened the use of force to compel the victim to have intercourse from circumstantial evidence based on an erroneous and diluted standard of proof. We conclude that it was reasonably possible that the jury was misled with respect to the state’s burden of proving that the defendant threatened the use of force since the charge left unclear the state’s burden of proving inferences drawn from circumstantial evidence beyond a reasonable doubt. State v. Whelan, supra, 757; State v. Hoeplinger, 9 Conn. App. 147, 159, 517 A.2d 632 (1986), cert. granted, 202 Conn. 805, 520 A.2d 1286 (1987); see State v. Sullivan, supra, 93-98.

The state argues that, even if the charge was improper, it should be deemed harmless through application of the harmless error test. The state claims that Rose v. Clark, 478 U.S. 570, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986), requires such analysis. We agree and note that this court has previously applied such an analysis when faced with a Rodgers intent case. State v. Perez, 10 Conn. App. 279, 288-90, 523 A.2d 508, cert. denied, 203 Conn. 810, 525 A.2d 524 (1987). Since the Rodgers-Perez analysis, which includes the harmless error test, applies to “erroneous charge[s] which taint the jury’s deliberative process on any disputed element of the crime charged which is primarily dependent on circumstantial evidence for its proof”; State v. Sullivan, supra, 96; we must apply the harmless error test to the erroneous instruction in this case.

In order to find this instructional error harmless despite the misleading nature of the charge, the evidence on the disputed issue of whether the defendant threatened to use force against the victim must be so strong that the reviewing court is compelled to conclude beyond a reasonable doubt that the error did not contribute to the guilty verdict. State v. Perez, supra, 285.

The evidence tending to prove that the defendant threatened the use of force against the victim while strong, is not “overwhelming.” See State v. Perez, supra, 286. Thus, we are unable to conclude beyond a reasonable doubt that the evidence on this issue is so strong that the erroneous instruction did not contribute to the guilty verdict.

The defendant raised the defense of consent in this case. While he did not testify, he presented the defense through other witnesses, including a coparticipant. There was testimony by one witness that the victim had been drinking prior to joining up with the trio, and that she was seen hugging and kissing one of the three. This witness also testified that the victim told him that she “went partying with these guys and she went . . . to bed with all of them.” He further testified that “I asked her if they forced her and she said no.” A coparticipant testified that he saw the victim in bed with the defendant and that she was neither crying nor struggling. He further stated that, while being driven home, the victim gave no indication that she was mad, upset or in pain and that she had a normal conversation with the defendant while in the car.

The evidence presented by the state in this case showed that the victim was compelled to commit acts of sexual intercourse with the defendant and two other men within a two or three hour period in the defendant’s bedroom. One of the two friends of the defendant verbally threatened the victim while in the defendant’s locked bedroom and while the defendant sat in a recliner chair near by. According to the victim, the defendant continued to sit in the chair as one of the other men “grabbed [her] by the back of [her] neck and [her] hair. And, he just pushed [her] head down” and forced her to perform fellatio. At that time “[the defendant] was still in the room, sitting in the chair. ...” The victim was then forced down on the bed by one of the men by her shoulders and compelled to engage in vaginal intercourse while the defendant was “sitting in the red chair.” Ultimately, the defendant also had intercourse with the victim.

Confronted with such conflicting evidence on whether the defendant threatened the use of force and the victim’s alleged consent, we are unable to conclude that the evidence was so overwhelming that it renders the error in the instruction harmless beyond a reasonable doubt.

In his final claim, the defendant argues that the court’s exclusion of defense evidence and limitation of cross-examination regarding the victim’s prior sexual conduct violated his rights to confrontation of witnesses, compulsory process and due process of law.

Prior to the trial, a hearing was held pursuant to General Statutes § 54-86f, the Rape Victim’s Shield Law. The statute prohibits introduction, in sexual assault cases, of evidence of the prior sexual conduct of the victim, unless the evidence satisfies one of the exceptions to the statute’s proscription. The statute provides for a hearing, out of the presence of the jury, to determine whether the probative value of the evidence outweighs its prejudicial effect on the victim. There was a pretrial hearing to determine admissibility, and the defendant renewed his motion at the trial.

The defendant claims the proffered evidence was admissible under two of the exceptions: it was offered on the credibility of the victim, and it was so relevant and material to a critical issue in the case, the consent of the victim, that to exclude it violated the defendant’s rights of confrontation, compulsory process and due process. The court denied admission of the evidence.

At the hearing, the defendant introduced three witnesses whose testimony, viewed in the light most favorable to the defendant, tended to show that the victim had previously engaged in consensual sexual relations with persons other than the defendant prior to the sexual assault. The defendant argues that this evidence should have been admitted at trial to demonstrate a pattern of sexual conduct by the victim and to challenge her credibility.

“As a general principle, evidence is relevant if it has a tendency to establish the existence of a material fact. . . . The fact that a complaining witness may have consented to sexual relations with others before does not, without more, tend to establish that consent was given on the occasion in question.” State v. Mastropetre, 175 Conn. 512, 517, 400 A.2d 276 (1978). Under General Statutes § 54-86f, evidence of prior sexual conduct is admissible only if it fulfills the requirements of the statute that its probative value outweighs its prejudicial effect, within the context of the facts and circumstances of the case in which it arises. State v. Cassidy, 3 Conn. App. 374, 384-85, 489 A.2d 386, cert. denied, 196 Conn. 803, 492 A.2d 1239 (1985).

The evidence sought to be introduced was not relevant to whether the victim consented to the sexual conduct on the night of the assault. The evidence, if believed, would have shown that the victim consented to intercourse with young men she had dated, and that she engaged in sexual relations with only one person on each occasion. The evidence offered by the defendant described conduct so dissimilar to the event of the night of the sexual assault that its inclusion would serve no purpose other than to embarrass the victim. The evidence failed to comport with the requirements of the statute and the defendant’s asserted constitutional rights were not prejudiced by exclusion of it.

The defendant also claims that the evidence should have been admitted as relevant to the credibility of the victim. At the rape shield hearing, the victim testified, on direct examination by the defendant’s attorney, that prior to the sexual assault she was a virgin. She did not testify at trial to her virginity. During the trial and out of the presence of the jury, Rainieri’s attorney moved to admit the testimony elicited at the rape shield hearing, arguing that the victim’s assertion of virginity, in light of contradictory testimony of other witnesses, raised the issue of her credibility. The trial judge denied the motion, noting that absent an inconsistent statement, prior sexual history does not implicate veracity.

Generally, in a sexual assault case, evidence of prior sexual conduct may not be introduced to impeach the credibility of a complaining witness. State v. Mastropetre, supra, 518. Where the victim testified on direct examination to her chastity, the defendant may challenge such assertion on cross-examination with evidence of past sexual conduct. Id.; see also State v. LaClair, 121 N.H. 743, 745-46, 433 A.2d 1326 (1981) (trial court should have permitted cross-examination of the victim on her own inconsistent statements as to her virginity). General Statutes § 54-86f (2) permits introduction of such evidence on the issue of the victim’s credibility provided the victim has testified on direct examination concerning her prior sexual conduct.

Although the victim’s assertion of virginity was contradicted by other witnesses at the rape shield hearing, there was no claim that she made inconsistent statements about her past sexual history which would warrant exploration. Nor was her assertion of virginity relevant to any material issue in the case. See State v. Talton, 197 Conn. 280, 284-85, 497 A.2d 35 (1985). “ ‘It is a reasonable exercise of judicial discretion to exclude . . . evidence the relevancy of which appears to be so slight and inconsequential that to admit it would distract attention which should be concentrated on vital issues of the case. State v. Bassett, 151 Conn. 547, 551, 200 A.2d 473 [1964].’ ” State v. Talton, supra, quoting State v. Mahmood, 158 Conn. 536, 540, 265 A.2d 83 (1969). Furthermore, at trial, the defendant’s cross-examination of the victim as to the events of the night of the sexual assault was detailed and unrestricted. The credibility of witnesses is principally tested by cross-examination. State v. Esposito, 192 Conn. 166, 179, 471 A.2d 949 (1984). The constitutional standard for cross-examination is satisfied when defense counsel is allowed to expose to the jury facts from which the jurors could appropriately draw inferences as to the witness’ reliability. State v. Heinz, 3 Conn. App. 80, 86, 485 A.2d 1321 (1984). Upon a finding that the standard has been met, it must be determined whether the trial court abused its discretion in refusing to permit proffered evidence, thus restricting cross-examination. Id.

The cross-examination of the victim was itself sufficient to enable the jurors to form opinions as to her credibility. Exclusion of the proffered evidence was a proper exercise of discretion as the probative value of that evidence was far outweighed by its prejudicial effect on the victim. Thus, the defendant’s rights to confrontation and cross-examination were not curtailed.

Our resolution of the instructional error claim is dis-positive. Although the defendant has raised other claims, it is not clear that the alleged errors will recur in the new trial. We therefore decline to review them.

There is error, the judgment is set aside and the case remanded for a new trial.

In this opinion the other judges concurred.

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

       In both State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 1598 (1986), and State v. Rodgers, 198 Conn. 53, 502 A.2d 360 (1985), the Connecticut Supreme Court analyzed “more probable than not,” jury instructions on circumstantial evidence where the disputed issue was intent. Those cases concluded that when the principal factual issue is intent, the court’s instructions regarding the use of circumstantial evidence as proof of intent are subject to close scrutiny. See also State v. Farrar, 7 Conn. App. 149, 508 A.2d 49, cert. denied, 200 Conn. 805, 512 A.2d 229 (1986).