author: Spallone, J.

text:
    State of Connecticut v. Edwin M. Rodriguez
    (2637)
    Hull, Spallone and Bieluch, Js.
    Argued April 3 —
    decision released May 20, 1986

      John R. Williams, for the appellant (defendant).

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

The defendant is appealing from the judgment rendered upon his conviction by a jury of the crime of hindering prosecution in the first degree, in violation of General Statutes. §§ 53a-165 (5) and 53a-166.

From the evidence adduced at trial, the jury could reasonably have found the following facts. On December 21,1982, the defendant, Edwin M. Rodriguez, and Robert Racowski had been drinking alcoholic beverages for several hours in the apartment where Racowski had been staying. Racowski was drinking heavily. The defendant, intending to go to his mother’s house, walked along with Racowski and reached the intersection of Brooks and James Streets located in the city of Bridgeport. Upon arriving at the intersection, Racowski walked over to a parked cab, put a shotgun up to its window and shot and killed the cab driver, Harry W. Morris. After this, the defendant and Racowski returned to the apartment where Racowski was living, which was located at 819 Hallett Street. On the basis of statements of witnesses, the Bridgeport police obtained a search warrant for the Hallett Street apartment. Upon executing the warrant, the police found the defendant in the rear bedroom of the apartment with Racowski and two women. They also found blood stained boots beside each of the two beds in the room and garments soaking in “pink water” in the bathtub. The defendant and Racowski were then arrested. After the defendant was questioned, he directed the police officers to a garage located behind a building which was between 200 and 300 feet away from the apartment, and accompanied them to this location. At the garage, the police found a shotgun under a plastic covering exactly where the defendant had told the police he had placed the weapon. The defendant stated to the police that he took the shotgun from the apartment because his girlfriend, who also lived there, was afraid of Racowski. On April 28, 1983, Racowski was indicted for murder, pursuant to General Statutes § 53a-54a.

The defendant was arrested, tried and convicted of the crime of hindering prosecution in the first degree and has appealed. He claims that the trial court erred (1) in informing the jury that Racowski had committed the crime of murder, thereby depriving the defendant of a jury trial on an essential element of the crime the defendant was charged with, (2) in charging the jury to decide whether to believe the defendant’s explanation of his intent or the state’s, thereby diluting the requirement that the state prove intent beyond a reasonable doubt, and (3) in denying the defendant’s motion for judgment of acquittal.

We agree that the court erred in charging the jury as a fact that Racowski committed the crime of murder. Although the defendant did not take an exception to the charge as given, we find that the error committed was in such derogation of the defendant’s fundamental right to a fair trial that our review is warranted despite his counsel’s failure to except. State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).

The information under which the defendant was charged and tried alleged that the defendant “rendered criminal assistance to one Robert Racowski, who had committed the crime of Murder, a Class A Felony, by taking the possession of and concealing the weapon used in the commission of the crime of Murder by the said Robert Racowski, in violation of Section 53a-166 of the Connecticut General Statutes.” In a bill of particulars, the state stated the charge more specifically and, after giving the statutory definition of “criminal assistance” in paragraph 1, went on in paragraph 2a to allege that “the defendant rendered criminal assistance within the meaning of the statute to Robert Racowski by taking possession of and concealing the weapon used in the commission of the crime of murder by Robert Racowski.”

General Statutes § 53a-166 provides in pertinent part: “A person is guilty of hindering prosecution in the first degree when he renders criminal assistance to a person who has committed a class A or class B felony or an unclassified offense for which the maximum penalty is imprisonment for more than ten years.” Obviously, the essential element of the crime alleged by the state, generally in the information and more specifically in the bill of particulars, is that the defendant rendered criminal assistance to Racowski by taking possession of and concealing the weapon used in the commission of the crime of murder by Racowski. The state’s response to the defendant’s motion for a bill of particulars clearly indicates that it relied on the commission of murder to satisfy the requirement of General Statutes § 53a-166 that the criminal assistance be rendered to a person who has committed a class A or class B felony. Having so elected, the state had the burden of proving beyond a reasonable doubt that Racowski committed a murder. This interpretation of General Statutes § 53a-166 is consistent with that given by the New York Supreme Court in People v. Clough, 43 App. Div. 2d 451, 353 N.Y.S.2d 260 (1974), when it interpreted § 205.65 of the New York Penal Law which is similar to § 53a-166. Section 205.65 provides in pertinent part: “A person is guilty of hindering prosecution in the first degree when he renders criminal assistance to a person who has committed a class A felony, knowing or believing that such person has engaged in conduct constituting a class A felony.” In People v. Clough, supra, 453-54, the Supreme Court, Appellate Division, stated that “[a]n allegation that the person assisted did in fact commit a class A felony is necessary in order to sustain an indictment charging hindering prosecution in the first degree. ‘[T]he person to whom the assistance is rendered must have actually committed a certain crime. It is not sufficient that the one rendering assistance believed that the particular crime was committed; the People must substantively prove that the person to whom assistance was rendered actually committed it.’ (Rothblatt, Criminal Law in New York, The Revised Penal Law [1971], § 431, p. 375. See also Marks and Paperno, Criminal Law in New York Under the Revised Penal Law [1967], § 460, p. 515.)”; see also People v. Bulger, 52 App. Div. 2d 682, 683, 382 N.Y.S.2d 133 (1976). The court noted further that “[w]here possible, such proof may be presented in the form of a certificate of conviction of the person to whom the assistance was rendered; in other cases, independent evidence proving that such person committed the requisite felony will be necessary (see People v. Formato, 286 App. Div. 357, 363, [143 N.Y.S.2d 205, 210], affd. 309 N.Y. 979 [132 N.E. 2d 894]; Fisch, New York Evidence, § 214.)” People v. Clough, supra, 453 n.2. Although the similarity of language between the New York and Connecticut penal codes does not compel like construction; State v. Mastropetre, 175 Conn. 512, 522, 400 A.2d 276 (1978); we conclude that it is warranted here.

In its charge, the court instructed the jury in relevant part: “In this case it is clear that absent circumstances which only Robert Racowski can give a murder was committed and I have so charged you. That murder . . . as I recall the testimony, was committed at about 5:30 in the afternoon on December 21st [1982]. The person who did it, Robert Racowski . . . went to his girl friend’s house with the defendant.” (Emphasis added.) By this instruction, the trial court unequivocally and categorically charged that Racowski committed a murder and effectively removed an element of the crime for which the defendant was on trial from the consideration of the jury, thereby substituting its finding for that of the jury.

We recognize the principle that individual instructions are not to be judged in artificial isolation from the overall charge; State v. Dolphin, 195 Conn. 444, 451, 488 A.2d 812, cert. denied, 474 U.S. 833, 106 S. Ct. 103, 88 L. Ed. 2d 84 (1985); and that the entire charge must be considered from the standpoint of its effect on the jury. State v. Corchado, 188 Conn. 653, 660, 453 A.2d 427 (1982). The charge must not be critically dissected in a microscopic search for possible error. State v. Harris, 172 Conn. 223, 226-27, 374 A.2d 203 (1977); see, e.g., State v. Reddick, 197 Conn. 115, 132, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986). Regardless of what the court stated earlier in its charge, however, the language quoted above is clear and unambiguous. A fair and logical reading of it establishes that the trial court accepted as a fact that Racowski had committed a murder, and so charged the jury. In so doing, the court preempted the jury’s function and in effect directed a verdict as to an essential element of the crime. In State v. Theriault, 182 Conn. 366, 378-79, 438 A.2d 432 (1980), our Supreme Court held that an instruction that effectively directs a verdict on a contested issue relieves the state of its burden of proving an essential element of the crime and thus “is clearly unconstitutional and deprives a criminal defendant of his right to due process of law.” We can only review what the trial court said in its instruction to the jury, not what it meant to say. The court’s charge that the murder was an established fact was erroneous.

Although our ruling on the defendant’s first claim is dispositive of the appeal, we must comment briefly on the defendant’s third claim, that the trial court erred in denying his motion for judgment of acquittal. In his motion, the defendant claimed that there was insufficient evidence to make out a prima facie case of hindering prosecution pursuant to General Statutes §§ 53a-165 (5) and 53a-166.

“ ‘In determining whether the evidence is sufficient to sustain a verdict, “the issue is whether the jury could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt.” . . .’ (Citations omitted.) State v. Giguere, 184 Conn. 400, 402-403, 439 A.2d 1040 (1981); see also Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560, reh. denied, 444 U.S. 890, 100 S. Ct. 195, 62 L. Ed. 2d 126 (1979).” State v. Reid, 193 Conn. 646, 666, 480 A.2d 463 (1984). We conclude that there was sufficient evidence to support a conviction of hindering prosecution pursuant to General Statutes §§ 53a-165 (5) and 53a-166.

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

In this opinion the other judges concurred.


source: Caselaw Access Project

license: Public Domain

text:
    State of Connecticut v. Bernard Baldwin
    (3881)
    Hull, Spallone and Bieluch, Js.
    Argued April 4 —
    decision released May 20, 1986

      Neil A. Lieberthal, with whom, on the brief, were JohnR. Gulash, Jr., and Charles W. Fleischmann, for the appellant (defendant).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Robert A. Lacobelle, assistant state’s attorney, for the appellee (state).
   Spallone, J.

The defendant is appealing from the judgment rendered after his conviction by a jury of the crime of possession of cocaine, General Statutes (Rev. to 1981) § 19-481 (a), possession of marihuana, General Statutes (Rev. to 1981) § 19-481 (c), and possession of drug paraphernalia, General Statutes (Rev. to 1981) § 19-480 (c).

The defendant claims that the trial court erred (1) in denying his motions for judgment of acquittal and to set aside the verdict, since the state failed to produce sufficient evidence to establish guilt beyond a reasonable doubt, (2) in its instructions to the jury regarding the defendant's failure to testify, and (3) in its instructions to the jury on intent.

The jury could reasonably have found the following facts. Pour members of the Bridgeport police special services, a division assigned to investigate narcotics cases as well as those involving gambling, morals and liquor violations, executed a search, pursuant to a warrant, of apartment 703, 120 Huntington Turnpike, Bridgeport. The apartment consisted of a combination living-dining room, one bathroom, two bedrooms, a hallway and a kitchen. The object of the warrant was to search for and seize narcotics, narcotics paraphernalia and items used in the packaging and distribution of narcotics. At the time of the search, the tenants were not present. In one of the bedrooms, an officer found three plastic straws, cut at angles, containing a white powder residue and two manila envelopes containing a plant-like material which was field tested positive as marihuana. Also found in this bedroom were men’s shoes, shirts, dungarees, cologne, after shave lotion and belts.

Another officer found men’s apparel, a folded ten dollar bill, two folded one dollar bills and a film canister, all of which contained a white powder substance which later proved to be cocaine, in the second bedroom. This bedroom contained clothing and pictures of the defendant.

A third officer found and seized numerous items used in the drug trade in the dining area and kitchen including plastic baggies with plant material, manila envelopes, glassine envelopes, a plastic spoon, a triple beam scale, mixing compound, pieces of granite, playing cards, small bottles, strainers, and two pairs of scissors. The plastic spoon, scales, playing cards, small bottles, strainers and the scissors all contained a white powder residue.

On the basis of the evidence seized, the officers applied for and obtained an arrest warrant for the defendant. The defendant was tried on a substitute information charging him with one count of possession with intent to sell cocaine, one count of possession with intent to sell marihuana and one count of possession of drug paraphernalia. He was convicted of the lesser included charges of possession of cocaine, possession of marihuana and the original charge of possession of drug paraphernalia.

The defendant’s first claim of error, that there was insufficient evidence to support his conviction, is based on his assertion that the state failed to prove, beyond a reasonable doubt, that the defendant was living in the apartment from which the items were seized at the time of the search, and that he was the possessor of those items. At the conclusion of the state’s case, the defendant moved for a judgment of acquittal and upon the acceptance of the verdict, the defendant moved to set aside the verdict. The court denied both motions. The underlying basis of both motions was the defendant’s allegation that the evidence produced by the state was insufficient to prove the charges beyond a reasonable doubt.

If we assume that the defendant was chargeable with the possession of the items seized, there is no question that the drugs and drug paraphernalia found in the apartment were sufficient evidence to support the guilty verdict. The central question then is whether the defendant was living in the apartment where the items were seized, and was chargeable with the possession of the items. The evidence produced at the trial was contradictory in that there was testimony to sustain a conclusion that the defendant was or was not a resident, depending on whom the jury believed. There was also conflicting evidence as to whether the defendant or someone else was a possessor of the drugs and drug paraphernalia. The resolution of such conflicts in the evidence, whether testimonial or physical evidence is involved, is the classic function of the jury. It is within the province of the jury to determine the credibility and the effect to be given the testimony. State v. Grant, 177 Conn. 140, 142, 411 A.2d 917 (1979); Eagar v. Barron, 2 Conn. App. 468, 471, 480 A.2d 576 (1984).

Furthermore, “[i]n reviewing a sufficiency of the evidence claim, ‘ “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” ’ ” (Emphasis in original.) State v. Amarillo, 198 Conn. 285, 289, 503 A.2d 146 (1986), quoting State v. Scielzo, 190 Conn. 191, 197, 460 A.2d 951 (1983); State v. Morrill, 197 Conn. 507, 512, 498 A.2d 76 (1985). The issue to be determined is whether the jury could reasonably have concluded, upon the established facts and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt. State v. Findlay, 198 Conn. 328, 333, 502 A.2d 921 (1986); State v. Fernandez, 198 Conn. 1, 21, 501 A.2d 1195 (1985); State v. Tyler-Barcomb, 197 Conn. 666, 668, 500 A.2d 1324 (1985). The evidence must be given a construction most favorable to sustaining the jury’s verdict. State v. Fernandez, supra, 22. The verdict must stand unless it is against the evidence or its manifest injustice is so plain as to justify the belief that the jury or some of its members were influenced by ignorance, prejudice, corruption or partiality. Martino v. Palladino, 143 Conn. 547, 548, 123 A.2d 872 (1956); see Carfora v. Globe, Inc., 5 Conn. App. 526, 529, 500 A.2d 958 (1985). Under the circumstances presented here, we will not disturb the jury’s verdict.

The defendant’s claim that his motions for judgment of acquittal and to set aside the verdict should have been granted is baseless. In reviewing the court’s action on motions of this nature, because of the court’s familiarity with the facts, the ruling of the trial court is entitled to great weight. Hearl v. Waterbury YMCA, 187 Conn. 1, 3, 444 A.2d 211 (1982); see Holden & Daly, Connecticut Evidence (1983 Sup.) § 35. The dispositive question is whether the trial court clearly abused its discretion in denying the motions. Labatt v. Grunewald, 182 Conn. 236, 240, 438 A.2d 85 (1980). In determining whether the trial court abused its discretion, the only issue is whether the jury could reasonably and logically conclude as it did. If so, the court’s refusal to set aside the verdict will be sustained. Labatt v. Grunewald, supra, 240-41. We conclude that the jury reasonably and logically could have reached the conclusion it did, and that the court did not abuse its discretion in denying the defendant’s motions.

The defendant’s second and third claims of error, although not raised in the trial court, are, as is conceded by the state, subject to our review because they involve the defendant’s fundamental constitutional right to a fair trial. State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).

The defendant’s second claim challenges the court’s charge to the jury that no unfavorable inference could be drawn from the defendant’s failure to testify. The parties agree that the court properly charged the jury on unfavorable inferences in accordance with General Statutes § 54-84 (b). The court expressly charged the jurors as follows: “And I am sure as you are no doubt aware, under our law in a criminal case, the person on trial for an offense for which he has been charged, has the option to testify or not testify on his own behalf. In this case, the accused has elected not to testify. It is my duty to tell you that you may not draw any unfavorable inferences as to his guilt merely because of his failure or refusal to testify.” There is no question that this language represents a proper charge under the statute.

Later in the charge, the court, while giving the jury a lengthy instruction on intent, discussed the propriety of the jury drawing inferences on the basis of the evidence. During its analysis of the circumstances under which it would be proper for the jury to draw inferences of intent, the court reiterated its admonishment that no adverse inference be drawn from the defendant’s silence. The trial judge stated: “You may not draw any unfavorable inference from the accused’s failure to testify.” The judge then stated: “To draw such an inference is not only the privilege of the jury, but is also your duty, provided that the inference drawn is a reasonable one.”

A fair reading of the charge leads to the reasonable conclusion that the last sentence refers back to the intent charge and not to the immediately preceding sentence relating to the defendant’s silence. The court’s reference to the defendant’s failure to testify was made to emphasize the fact that, although the jury had the privilege and duty to draw inferences as to intent, it was precluded from using the defendant’s silence as a basis for such an inference. Reading the charge as a whole and not as a series of isolated phrases, clarifies what, out of context, appears to be an anomaly. For a determination of whether the jury was misled, a charge must be read as a whole and detached clauses are not to be considered by themselves but in connection with the whole. State v. Rodgers, 198 Conn. 53, 58, 502 A.2d 360 (1985); State v. Dolphin, 195 Conn. 444, 451, 488 A.2d 812, cert. denied, 474 U.S. 833, 106 S. Ct. 103, 88 L. Ed. 2d 84 (1985). Charges to the jury are given orally by the court. When we review a bare written transcript, we are not privy to the nuances, pauses and accents in the delivery, if any, that might be apparent when listening to the charge. For this reason, we should not dissect the charge but should view it as an integrated whole. Our analysis of the court’s charge fails to indicate that the court erred when instructing the jury regarding the defendant’s failure to testify.

The defendant’s final claim of error challenges the court’s charge as to intent, contending that the instruction violated the proscription, enunciated in Sandstrom v. Montana, 442 U.S. 510, 513, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979), against the use of language such as “every person is presumed to intend the natural consequences of his or her act.” The court in this case used that phrase. The rationale militating against such usage is based on the risk that the jury may interpret the language as either creating a burden shifting presumption or a conclusive presumption that because the defendant committed the act, he must have intended the result. This situation would then require the defendant to disprove that he intended the result. Either concept violates the defendant’s due process rights. The shifting of the burden of proof on an essential element of the crime, such as intent, denies the defendant the dual protections of the presumption of innocence and due process of law. State v. Harrison, 178 Conn. 689, 693, 425 A.2d 111 (1979). The use of the word “presumes” does not, however, necessarily render the charge invalid. Our Supreme Court has held that the “ ‘lack of qualifying instructions as to the legal effect of the presumption’ ” is the factor that subjects the charge to error. State v. Arroyo, 180 Conn. 171, 175, 429 A.2d 457 (1980), quoting Sandstrom v. Montana, supra, 517.

A fair reading of the entire charge in this case reveals the presence of other language, the natural import of which qualifies the proscribed Sandstrom language. The court used such terminology as: “[Intent] may be inferred, but you may not presume the existence of the intent in the mind of an accused. . . . What a person’s purpose or intention has been is necessarily very largely a matter of inference. . . . The only way in which a jury can determine what a person’s purpose or intention was at any given moment, is by determining what the circumstances were surrounding that conduct, and from those, infer what the person’s purpose or intention was. ... In this case, therefore, it would be part of your duty to draw all reasonable inferences from the conduct of an accused in the light of the surrounding circumstances . . . .” (Emphasis added.) Such language qualifies and fairly apprises the jury that the acts of the defendant may be a factor to be considered when drawing inferences from the defendant’s conduct.

We hold that the language used in the charge in this case is similar to the language used in cases in which our Supreme Court found no error despite the fact that the charge also contained the phrase invalidated in Sandstrom. Our Supreme Court has held that where the challenged instructions contain other language, not present in Sandstrom, which is sufficiently precise to rectify the improper instruction and which prevents the jury from applying the instruction in an unconstitutional manner, it will not find error. State v. Amarillo, supra, 303; State v. Asherman, 193 Conn. 695, 734, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985); State v. Vitale, 190 Conn. 219, 221 n.1, 460 A.2d 961 (1983). In this case, the complete instruction on intent adequately delineated the state’s burden of proof as to this element of the crime, and the otherwise improper use of the word “presume,” taken in the context of the entire charge, has been sufficiently qualified and rectified to prevent the unconstitutional application by the jury of the questioned statement in the instruction.

There is no error.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1981) §§ 19-481 (a) and 19-481 (c) are now §§ 21a-279 (a) and 21a-279 (c) respectively. General Statutes (Rev. to 1981) § 19-480 (c) is now § 21a-277 (c).


author: Per Curiam.

text:
    James Darling et al. v. Town of Waterford
    (3888)
    Dupont, C. J., Borden and Spallone, Js.
    Argued March 12 —
    decision released May 27, 1986

      Hyman Wilensky, for the appellants (plaintiffs).

      Lois J. Lawrence, for the appellee (defendant).
   Per Curiam.

The basic issue of this appeal is whether a state trial referee, acting as the trial court, erred in denying, at the beginning of trial, the plaintiffs’ request to amend their complaint when that request had not been objected to by the defendant within fifteen days of the request in accordance with Practice Book § 176 (c). The plaintiffs appealed to the trial court from the defendant’s compensation award for the taking of a portion of the plaintiffs’ land for the installation of a sewer line. The amendment sought to include damages for trespass and consequential damages for the cost of reconstructing a pond, the placing of fill, and the replanting of trees. The original appeal sought a review of the compensation award. See General Statutes §§ 8-129 and 8-132. The trial proceeded on the original unamended appeal and judgment was rendered for the plaintiffs. Compensatory damages were calculated to be $2600.

The proper measure of damages arising from a partial condemnation was reviewed in D’Addario v. Commissioner of Transportation, 172 Conn. 182, 184-85, 374 A.2d 163 (1976). “When only a part of a tract of land is taken for the public use, ‘just compensation’ includes recovery for the part taken and recovery for any damages visited upon the remainder which result from the taking. . . . ‘The ordinary rule for measuring damages where a portion of a tract of land is taken is to determine the difference between the market value of the whole tract as it lay before the taking and the market value of what remained of it thereafter, taking into consideration the changes contemplated in the improvement and those which are so possible of occurrence in the future that they may reasonably be held to affect market value.’ Lefebvre v. Cox, 129 Conn. 262, 265, 28 A.2d 5 [1942].” D’Addario v. Commissioner of Transportation, supra. The plaintiffs’ amended appeal came within the ambit of allowable damages under General Statutes § 8-129. Additionally, the specific allegations of consequential damages were necessary to notify the defendant of damages not naturally flowing from a partial condemnation. See Delmore v. Polinsky, 132 Conn. 28, 32, 42 A.2d 349 (1945). The only objection to the proposed amendment at trial was that it was not timely. Practice Book § 176 states in pertinent part, “a party may amend his pleadings ... at any time [following thirty days from the return day] ... (a) By order of court; or . . . (c) By filing a request for leave to file such amendment .... If no objection thereto has been filed by any party within fifteen days from the date of the filing of said request, the amendment shall be deemed to have been filed by consent of the adverse party.” In the present case, the amendment was not filed within the thirty days following the return day of the appeal request. The defendant, however, did not object to the plaintiffs’ amended appeal within the prescribed fifteen day period. The amendment, therefore, was deemed to be filed with the consent of the defendant. The defendant’s objection on the day of trial to the plaintiffs’ request to amend their complaint came too late. The trial court had no discretion, at that time, to deny the request, absent extraordinary circumstances.

We disagree with the defendant’s claim made during oral argument before this court that the trial court’s action was authorized by that portion of Practice Book § 176 which empowers the trial court to “restrain such amendments so far as may be necessary to compel the parties to join issue in a reasonable time for trial.” The facts of this case do not warrant the invocation of this power. Issue was joined well in advance of trial. The request to amend the appeal was filed on May 24,1984, the defendant filed an answer on July 2,1984, and the trial began approximately five months after the answer had been filed.

We find, therefore, that the trial court’s denial of the plaintiffs’ request to amend was error. This finding, however, does not end our inquiry.

Error will warrant remedial action by this court only where it is harmful. See Manning v. Michael, 188 Conn. 607, 611, 452 A.2d 1157 (1982). Harmful error requires a finding that the error was likely to affect the result. Spoto v. Hayward Mfg. Co., 2 Conn. App. 663, 677, 482 A.2d 91 (1984). It is the appellant’s burden to demonstrate the harmfulness of the error. Id.

The plaintiffs’ claim that the denial of the amendment precluded their presentation of evidence demonstrating consequential damages is supported by the record. Although the defendant is correct in its allegation that none of the plaintiffs’ proffered evidence was excluded by the court, the plaintiffs are equally correct in their claim that they were deterred from offering other evidence to prove their amended claims. The transcript depicts the plaintiffs’ efforts to limit their presentation of evidence to conform to the trial court’s ruling disallowing the amendment. The transcript also depicts several instances where the court interrupted the plaintiffs’ examination to caution them against attempting to introduce evidence relating to the amended complaint. We conclude that the error prevented the plaintiffs from presenting evidence to support their claims of trespass and consequential damages, and that it is likely such error affected the final calculation of damages.

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

       It is clear from the transcript and memorandum of decision that some evidence relevant to the plaintiffs’ claim of consequential damages was admitted. The memorandum of decision makes a general reference to evidence of $10,700 for damages resulting from the defendant’s failure to return the land to its original state. This figure presumably included some of the plaintiffs’ alleged consequential damages. The court concluded that such damages were not supported by a preponderance of the evidence. While some evidence was introduced concerning the amount of consequential damages, it is clear that other evidence was not introduced by the plaintiffs in an effort to comply with the trial court’s erroneous ruling.


author: Daly, J.

text:
    State of Connecticut v. Arthur Felder
    (3399)
    Dupont, C. J., Hull and Daly, Js.
    Argued February 6 —
    decision released May 27, 1986

      Terrence J. Murphy, Jr., assistant public defender, for the appellant (defendant).

      George J. Duborg, special assistant state’s attorney, with whom, on the brief, was James G. Clark, deputy assistant state’s attorney, for the appellee (state).
   Daly, J.

The defendant was convicted by a jury of sexual assault in the first degree in violation of General Statutes § 53a-70 (a). After the defendant’s motion for acquittal was denied, the trial court sentenced him to fifteen years in prison. On appeal, the defendant claims (1) that there was insufficient evidence to support the conviction, and (2) that the court was in error in requiring him to sit at counsel table during the in-court identification procedure. We disagree and therefore find no error.

From the evidence adduced at trial, the jury could have reasonably found the following facts. On August 19,1983, the fifteen year old black victim was residing in a three story house in South Norwalk with her grandparents, two uncles and a younger brother. About 10 a.m., she was watching television on the ground floor when her dog began to bark. She went outside to investigate and upon her return, she found a black male sitting on the living room couch. He asked to see the victim’s uncle, Arthur Lee Walker, who was sleeping upstairs in a third floor bedroom. As the victim attempted to go upstairs to summon her uncle, the male grabbed her hands, pulled her onto the couch, removed her underclothing and penetrated her vagina. While he was on top of her with her hands pinned between their bodies, she screamed, bit him on the thumb, and scratched his face or neck but drew no blood because her fingernails were not long enough to do so. The victim was able to push her assailant off the couch and went to the kitchen looking for a knife. She heard the front door slam, and when she ran to the front door, saw a blue car with a black roof moving down the street. A black male wearing a tee shirt was driving the vehicle but she was unable to observe his face.

The victim then went upstairs, awakened her uncle, and told him of the attack and described her assailant as being the same height as her uncle, with short hair, dark skin, and wearing blue jeans, a white tee shirt and driving a blue Cadillac. She called her grandmother at the latter’s place of employment, and then washed herself. When the grandmother arrived home, they went together to the hospital. She told her grandmother that she had seen her assailant previously.

The physical examination took place at the hospital around noontime and disclosed no evidence of trauma. Seminal matter, however, was discovered in the victim’s vagina and on her underwear, but a time frame of the deposits could not be ascertained. Fingernail scrapings did not indicate that she had scratched anyone.

The victim described her assailant to the police as being a black male, five foot eleven inches tall, with a short to medium “afro” hairdo, moustache, and bearing pimple marks on the face. She further described the assailant as wearing blue jeans, a white tee shirt and dirty sneakers. After working on a composite, she was shown a photo array which included a picture of the defendant. She picked out the defendant’s photo. While her eyesight was not good without glasses, which she was not wearing at the time of the assault, she could make out persons, including the assailant, when they were within four steps of her. In addition, the uncle later told the police that the victim’s description of the clothes and the car matched the description of a friend he knew as Pike, which is the defendant’s nickname.

The victim made a positive in-court identification of the defendant, at which time the state first became aware that the victim knew the defendant. He lived around the corner some five hundred feet from her home. She had seen him once before and recalled that he was living with a girlfriend of hers.

The defendant did not testify but offered an alibi defense. He claims that he was at his bank at approximately 11:28 a.m., where he was photographed by the bank surveillance camera withdrawing $25 which he later used to purchase tires. He was arrested at about 2:15 p.m., in his blue Cadillac and, at the time, was wearing blue jeans and a tee shirt. The bank is a nine minute drive from the victim’s house. The defense offered testimony that the defendant was thirty-one years old, five foot four inches tall, weighed 140 pounds and wore side burns and had no pimples.

When a verdict is challenged because of insufficient evidence, the standard applied is whether the jury could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a'reasonable doubt. State v. Monk, 198 Conn. 430, 432, 503 A.2d 591 (1986); State v. Carter, 196 Conn. 36, 44, 490 A.2d 1000 (1985); State v. Nemeth, 182 Conn. 403, 410, 438 A.2d 120 (1980). “The evidence must be given a construction most favorable to sustaining the jury’s verdict.” State v. Carter, supra, 44. In determining that each element of the crime charged is proved beyond a reasonable doubt, the jury may make reasonable and logical inferences but may not resort to speculation and conjecture. State v. Monk, supra, 433; State v. Gaynor, 182 Conn. 501, 503, 438 A.2d 749 (1980).

“We do not sit as a thirteenth juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. We have not had the jury’s opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility.” State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984). In addition, we cannot retry the facts or judge the credibility of the witnesses. State v. Monk, supra.

The victim testified that she was absolutely certain that the defendant had been her assailant. General Statutes § 53a-70 (a) provides in pertinent part that “[a] person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person . . . .” “Sexual intercourse” is defined as “vaginal intercourse” and “[pjenetration, however slight, is sufficient to complete vaginal intercourse . . . .” “Use of force” is defined in relevant part as “(b) use of actual physical force or violence or superior physical strength against the victim.” General Statutes § 53a-65 (2) and (7). “The victim’s testimony, if believed by the jury, was sufficient to establish beyond a reasonable doubt that the defendant compelled the victim to engage in sexual intercourse by the use of force.” State v. Monk, supra, 433. The verdict indicates that the jury chose to believe the state’s version of the evidence, and to disbelieve the defendant’s version. Id.

The defendant next challenges his in-court identification by the victim as being impermissibly suggestive because he was the only black male in the courtroom and was seated prominently at the counsel table. The defendant relies on United States v. Archibald, 734 F.2d 938 (2d Cir. 1984), which held that the in-court identification of the black defendant seated next to the defense counsel during trial was in fact impermissibly suggestive, although harmless error.

Prior to the commencement of trial, but after the selection of the jury, the defense counsel renewed a previous request that his motion to suppress the out-of-court identification be heard before the beginning of the trial. The state was not ready to go forward with the motion at that time because a police officer witness involved in that identification could not be located. The court, therefore, ruled that the motion would be considered during the trial when it arose, outside the presence of the jury, and that no identification testimony would be heard until the motion was addressed. The defendant claimed that he had a constitutional right to have the motion considered before trial, but would not object to its being heard during the trial if he would not be required to sit at the counsel table during or before the hearing on the motion. The court stated that the defendant could absent himself from the trial during and before the identification testimony if he waived his right to be present at trial. The defense counsel indicated, however, that the defendant wished to be present during the trial, as was his right, but wanted to be seated away from counsel’s table to avoid any unnecessary suggestiveness as to his in-court identification. Presumably, the defendant did not want the victim’s in-court testimony concerning any identification of him to be tainted by the victim’s having seen him at the counsel table. The court denied the request and the defense counsel excepted to the ruling.

The prevailing view with regard to permitting a defendant to sit among the courtroom audience until identification is to leave the matter within the trial court’s discretion. “Because of such potential suggestiveness, some trial judges have granted defense requests to place the defendant in an in-court lineup, or to seat the defendant in the courtroom audience, before and during the testimony of the prosecution’s identification witnesses. . . . Such arrangements are desirable efforts to ensure fair trials. But we cannot find any support for the assertion that a defendant has a right to such an arrangement whenever he requests it. . . . [T]he procedure for in-court eyewitness identification is left to the trial judge’s discretion. Absent abuse of that discretion ... we should not question the trial judge’s ruling.” United States v. Williams, 436 F.2d 1166, 1168-69 (9th Cir. 1970); Moore v. Illinois, 434 U.S. 220, 98 S. Ct. 458, 54 L. Ed. 2d 424 (1977), on remand 577 F.2d 411 (7th Cir. 1978), cert. denied, 440 U.S. 919, 99 S. Ct. 1242, 59 L. Ed. 2d 471 (1979); cf. State v. Guthridge, 164 Conn. 145, 154-56, 318 A.2d 87 (1972), cert. denied, 410 U.S. 988, 93 S. Ct. 1519, 36 L. Ed. 2d 186 (1973).

We find, however, that even if the in-court identification were impermissibly suggestive, the trial court’s error in permitting such a procedure was harmless. The trial court has an obligation to ensure that an in-court identification procedure does not merely amount to a “show-up”; if it does, however, such testimony is not considered per se inadmissible, but its admissibility rather depends upon the totality of the circumstances. United States v. Archibald, supra, 941-42; United States v. Kaylor, 491 F.2d 1127, 1131 (2d Cir. 1973), vacated on other grounds sub nom. United States v. Hopkins, 418 U.S. 909, 94 S. Ct. 3201, 41 L. Ed. 2d 1155 (1974), citing Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972).

The factors contributing toward the reliability of the in-court identification, because of the totality of the circumstances, include the witness’ opportunity to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the prior description of the criminal, the degree of certainty demonstrated when confronting the accused during identification, and the lapse of time between the crime and the confrontation. State v. Nelson, 4 Conn. App. 514, 517-18, 495 A.2d 298 (1985); see Neil v. Biggers, supra, 199-200; State v. McKnight, 191 Conn. 564, 572, 469 A.2d 397 (1983).

We will consider these factors in sequence. Regarding the victim’s opportunity to view her assailant, the assault occurred in her living room during broad daylight. Although the victim was not wearing her glasses which she wears to see things at a distance, she managed to get a good closeup look at her assailant’s face. Her degree of attention was high. As to the accuracy of her prior description, she made a composite picture which bore a close resemblance to the defendant except for the nose. The description she gave her uncle of the assailant prompted the uncle to suggest to the police that the defendant might be a possible suspect. The victim had previously made a photo identification of the defendant, and recognized him because he lived with a friend of hers. The victim’s degree of certainty in the in-court identification was high. Finally, the delay of five months between the episode and the court confrontation did not give rise to a substantial likelihood of misidentification of the defendant by the victim.

“[Reliability is the linchpin in determining the admissibility of identification evidence.” State v. Doolittle, 189 Conn. 183, 192, 455 A.2d 843 (1983). “The trial court could reasonably have found, under our test of reliability, that there was not a very substantial likelihood of irreparable misidentification.” State v. Nelson, supra, 518.

There is no error.

In this opinion the other judges concurred.


author: Borden, J.

text:
    Stratford Arms Company et al. v. Town of Stratford
    (3744)
    Dupont, C. J., Borden and Spallone, Js.

      Argued March 12 —
    decision released May 27, 1986

      Matthew B. Woods, with whom, on the brief, was Philip Baroff, for the appellants (plaintiffs).

      Geraldine Ficarra, with whom were Richard P. Gilardi and, on the brief, Vincent M. Zanella, Jr., for the appellee (defendant).
   Borden, J.

The plaintiffs appeal from the trial court’s judgment in favor of the defendant, which was rendered on the plaintiffs’ complaint, brought pursuant to General Statutes § 12-119, for a reduction in the amount of the assessment and tax on certain real property. The principal issue in this appeal is whether the trial court erred by upholding the defendant’s assessment of the property on October 1, 1981, as condominium property when, in fact, the property was not legally declared as condominium property until the following January. We find error.

The parties tried the case on the following stipulation of facts: In October, 1981, the Meadow Court Development Company (Meadow Court) owned property in Stratford on which an apartment building was situated. In the two months immediately preceding October, 1981, thé property was advertised for sale as condominiums, a public offering statement was issued and fifteen contracts of purchase were signed. Each of those contracts contained a provision that closing was contingent upon the signing of at least forty-eight purchase and sale contracts and the purchasers’ obtaining mortgage commitments. Sales representatives informed the defendant’s tax assessor of the selling prices of the individual units and provided him with a copy of the proposed declaration of condominium. The assessed value of the property as apartments on the grand lists of October 1, 1974, through October 1, 1981, calculated at 70 percent of fair market value, was $1,277,830. On October 1, 1981, the defendant’s tax assessor valued the property as a condominium by valuing ninety-four separate condominiums, for a total assessment of the ninety-four condominiums of $2,146,280. The assessed value of the property as condominiums was substantially greater than as an apartment building.

The parties further stipulated that on December 29, 1981, Meadow Court deeded the property to the Stratford Arms Company (Stratford Arms) for the consideration of $3,040,000. Prior to January 7, 1982, the property had not been described in a recorded declaration of condominium. On January 7,1982, Stratford Arms recorded in the Stratford land records a declaration of condominium covering the property. The tax based on the defendant’s assessment was paid under protest.

On the basis of these facts, the trial court ruled that pursuant to General Statutes § 12-119 the defendant’s assessment of the property as condominiums in the amount of $2,146,280, was not manifestly excessive and was not arrived at in disregard of the statutory provisions for determining the valuation of such property. The plaintiffs claim that the trial court erred in reaching this conclusion. We agree.

We first note that this is not a case where the owner of the property on October 1, 1981, namely, Meadow Court, has alleged aggrievement by virtue of the defendant’s allegedly erroneous valuation of its apartment building. In such a case, Meadow Court’s remedy would have been to appeal to the Stratford board of tax review and, thereafter, to the Superior Court pursuant to General Statutes § 12-118. The determinative issue in that case would be whether the assessor’s valuation of Meadow Court’s apartment building was legally incorrect. See, e.g., Whitney Center, Inc. v. Hamden, 4 Conn. App. 426, 494 A.2d 624 (1985).

In the present case, Meadow Court, as the owner of record of an apartment building on October 1, 1981, was taxed as the owner of ninety-four separate condominium units, notwithstanding the fact that the property remained as apartments until legally declared as condominiums by Meadow Court’s purchaser, namely, Stratford Arms, on January 7,1982. In this case, the proper remedy is the action initiated by the plaintiffs, pursuant to General Statutes § 12-119, for wrongful assessment. The determinative issue in this case is whether, as a matter of law, the apartment building was subject to taxation as condominium property prior to the date on which it was legally declared as condominiums.

General Statutes § 12-119 provides, in pertinent part, that “[w]hen it is claimed that . . . a tax laid on property was computed on an assessment which, under all the circumstances, was manifestly excessive and could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of such property, the owner thereof . . . may, in addition to other remedies provided by law, make application for relief to the superior court for the judicial district in which [the property] is situated.” There is no dispute that the relevant “provisions of the statutes for determining the valuation of [this] property”; id; are General Statutes §§ 12-62a, 12-63 and 12-64. These provisions essentially provide that the value of property for purposes of tax assessment is to be computed on the basis of the “present true and actual valuation” of that property. See General Statutes §§ 12-62a, 12-63 and 12-64.

Chapter 825, §§ 47-68a through 47-90c, of the General Statutes, entitled the “Condominium Act,” governs condominiums created prior to January 1, 1984; see General Statutes § 47-214; and the rights and obligations incident thereto. General Statutes § 47-71 (a) provides that the owner of property “may submit such property to the provisions of this chapter by filing or recording on the land records of the municipality . . . in which the property is located condominium instruments that comply with the provisions of this chapter.” General Statutes § 47-71 (b) provides that any declaration of condominium or other condominium instruments “shall not be of legal effect until filed or recorded on [such] land records . . . .” It is clear, therefore, that regardless of any intention or preparatory conduct of a property owner to convert its property to condominiums, the property has no condominium status until proper condominium instruments; see General Statutes § 47-68a (d); are recorded. It follows from this that the properly in question in this case could not properly be valued as condominiums as of October 1,1981, the assessment date, because it simply did not constitute ninety-four condominiums on that date. It was still an apartment building on that date.

This conclusion does not, as the defendant argues, elevate form over substance. In this case, form is substance. Until January 7,1982, when the declaration of condominium was recorded, the property did not have the enhanced value attributed to it by virtue of its condominium status. Until that date, the owner could not legally convey as condominiums, and thus receive consideration for, any of the units. Thus, the property did not have a value as condominiums on October 1,1981. Its true and actual value on October 1, 1981, was as an apartment building; its true and actual value as ninety-four condominiums did not and could not arise until January 7, 1982.

We need not decide on this record whether the assessor could have valued the property, as of October 1, 1981, at a figure higher than its previously assessed value because of its proposed conversion to condominiums and because of the sale in late December, 1981, which sale was clearly incident to the conversion to condominium status. Compare Budney v. Ives, 156 Conn. 83, 88, 239 A.2d 482 (1968) (reasonable probability of change of zone may be considered in determination of fair market value) with Sheldon House Club, Inc. v. Branford, 149 Conn. 28, 33, 175 A.2d 186 (1961) (property to be valued as of assessment date regardless of intended use). That is not what the assessor did. Nor is that the way in which the case was litigated pursuant to the stipulation of facts. This record limited the trial court to a choice between upholding the assessment of the property as ninety-four condominiums or reducing the assessment to the value assigned to it as an apartment building.

The defendant erroneously relies upon the assumption that the sales prices indicated in the fifteen contracts of sale are relevant matters of record, which they are not. The factual record consists entirely of the stipulation entered into by the parties. That stipulation of facts does not include the sales prices of those fifteen units. Furthermore, it is irrelevant that certain proposed condominium units had been sold on or before October 1,1981, because those units remained as apartments until January 7,1982. At best, those were contingent sales contracts, which could not possibly have been consummated until the contractual conditions had been met and the property had been validly declared as condominiums.

There is error, the judgment is set aside and the case is remanded with direction to render judgment for the plaintiffs reducing the assessed value of the property to $1,277,830.

In this opinion the other judges concurred.

       The original complaint was filed by the plaintiffs, the Meadow Court Development Company and the Stratford Arms Company, which were, respectively, the owners of the subject property before and after December 29, 1981. The complaint was amended to add as a plaintiff the Stratford Condominium Association, which is the representative of all of the individual condominium unit owners. The plaintiffs will be referred to by name in this opinion where necessary.

       The plaintiffs also claim that the trial court erred by basing its judgment upon evidence contained in a deposition of the defendant’s tax assessor which was not included or referred to in the stipulation of facts upon which the case was tried. Because of our disposition of this case, we do not reach this issue.


text:
    State of Connecticut v. Andrew Harris
    (3779)
    Borden, Spallone and Bieluch, Js.
    Argued May 6 —
    decision released May 27, 1986

      John J. Bennett filed a brief for the appellant (defendant).

      John H. Malone, assistant state’s attorney, with whom, on the brief, was JohnM. Bailey, state’s attorney, for the appellee (state).
   Per Curiam.

At oral argument it was disclosed to the court that the defendant, who was appealing his criminal conviction, died on April 2, 1986. Thus, the appeal is moot. State v. Grasso, 172 Conn. 298, 299, 374 A.2d 239 (1977).

The appeal is dismissed.


text:
    State of Connecticut v. Reginald Ridley
    (2811)
    Hull, Spallone and Bieluch, Js.
    Argued April 2 —
    decision released May 27, 1986

      Robert F. McWeeny, with whom, on the brief, was Helen Apostolidis, for the appellant (defendant).

      Robert J. Murphy, special deputy assistant state’s attorney, with whom, on the brief, were Arnold Markle, state’s attorney, and Julia DiCocco Dewey, assistant state’s attorney, for the appellee (state).
   Spallone, J.

The defendant, Reginald Ridley, is appealing from the judgment rendered after his conviction by a jury of the crime of attempted robbery in the first degree in violation of General Statutes §§ 53a-8, 53a-49 and 53a-134 (a) (4). He claims that the trial court erred (1) in refusing to charge the jury as requested with regard to identification testimony, (2) in refusing to grant a mistrial after the prosecution remarked during closing argument that the defendant failed to call an alibi witness, (3) in denying the defendant’s motion to equalize the number of peremptory challenges, (4) in denying the defendant’s motion to suppress the in-court identification, and (5) in denying the defendant’s motion for an opening statement.

We will discuss the defendant’s third and fifth claims of error first, as they deal with the court’s rulings on procedural matters. This was a joint trial of two defendants. The trial court, in accordance with General Statutes §§ 54-82g and 54-82h, allotted each of the defendánts eight peremptory challenges for a total of sixteen and allotted sixteen peremptory challenges to the state, thereby construing the statutes as allowing the state a number of challenges equal to the total collectively allowed to the defendants. The pertinent language in § 54-82g states that “[t]he state, on the trial of any criminal prosecution, may challenge peremptorily the same number of jurors as the accused.” Section 54-82h provides in pertinent part that “[i]n any criminal prosecution the state and the accused may each peremptorily challenge . . . eight jurors if the offense is punishable by imprisonment for more than one year and for less than life . . . .” The court’s interpretation is reasonable and in accordance with the construction of similar statutes in other jurisdictions where courts have held that such statutes have been construed to allow the prosecution the same number of challenges as that collectively allotted to the defendants. See Spies v. People, 122 Ill. 1, 264-65, 12 N.E. 865 (1887); State v. Noakes, 70 Vt. 247, 253-54, 40 A. 249 (1897). Even if the court erred, however, we have no way of knowing what prejudice, if any, befell the defendant because the parties excused the court reporter during jury selection thereby vaulting any showing of prejudice to the defendant into the area of speculation. This action, acquiesced in by the defendant, effectively precludes us from any review. It is the appellant’s burden to present us with an adequate record for review. Barra v. Ridgefield Card & Gift Gallery, Ltd., 194 Conn. 400, 407, 480 A.2d 552 (1984); see Practice Book § 3060V.

The defendant’s fifth claim of error is equally without merit. In this state, we have not established by statute, rule or practice a procedure which allows the defendant, in a criminal case, to make an opening statement to the jury. Nor has the right to make an opening statement been construed as one of constitutional proportions. “ ‘The Constitution requires no more than that trials be fairly conducted and that guaranteed rights of defendants be scrupulously respected.’ . . . We believe that an opening statement by the defendant is not such a guaranteed right, and that the making and timing of opening statements can be left constitutionally to the informed discretion of the trial judge.” (Citations omitted.) United States v. Salovitz, 701 F.2d 17, 21 (2d. Cir. 1983); see United States v. Zielie, 734 F.2d 1447, 1454-55 (11th Cir. 1984).

We agree with the proposition set forth in these cases and hold that, in our jurisdiction, the right to make an opening statement to the jury by a defendant in a criminal case is not guaranteed by law or rule. Whether to allow an opening statement is a decision to be left to the sound discretion of the trial court, taking into consideration the number and nature of the charges, the complexity of the issues, the number of defendants and their interrelationship, and similar factors which, when put into proper perspective by an opening statement, would serve to clarify the issues and focus the attention of the jury upon the matters it must decide.

The defendant’s remaining claims of error require us to examine the facts of this case which the jury could reasonably have found to be as follows. On October 30, 1981, Detective James Harris, a West Haven police officer, was assigned to maintain crowd control during a high school football game at Quigley Stadium. At approximately 9 p.m., while investigating a complaint of suspicious activity occurring in the parking area on the Front Avenue side of the stadium, Harris observed three black males loitering in the parking area. Upon seeing Harris, the group disbursed toward Front Avenue. One of the males, subsequently identified as the defendant, was approximately twenty feet from the officer. Harris described the defendant as being approximately eighteen years old, five feet nine inches tall, wearing a gray or light blue ski jacket, with red, white and blue stripes along the back. He described the second male as being approximately eighteen years old, between six feet and six feet two inches tall, wearing a bronze colored ski jacket and white ski goggles with green lenses. He described the third male as wearing dark clothing, but as being otherwise indistinguishable.

That same evening, at approximately the same hour, Dean McKissick and Diane Arute, after parking their vehicle, were walking along Front Avenue towards the stadium to attend a football game when they were approached by three black males. One male, subsequently identified as Lafayette Ridley, seized McKissick while another unidentified male seized Arute. The third male, subsequently identified as the defendant, standing apart from the other assailants, drew a .32 caliber revolver from his jacket and said, “This is a stick-up.” McKissick resisted the robbery attempt and a fight ensued. Arute broke free and hailed a passing motorist who stopped and let Arute into the car. The three assailants fled and McKissick joined Arute in the vehicle. McKissick and Arute were driven to the parking area and immediately reported the incident to Harris. The incident lasted approximately seven to ten minutes and occurred in a lighted area.

Arute identified the black male who held the revolver as being sixteen to seventeen years old, five feet nine inches in height, with a short afro hair style, flat nose, Ml lips and wearing a dark colored ski jacket. She observed that another male, subsequently identified as Lafayette Ridley, was wearing light colored ski glasses and was approximately the same age as the defendant, but three to four inches taller.

McKissick in his description of the black male holding the revolver stated that he was approximately five feet eight inches tall with a short afro haircut and a flat nose, sixteen or seventeen years old and wearing a dark blue ski jacket. He also stated that the male who initially seized him during the attempted robbery was five feet ten or eleven inches tall and was wearing white ski goggles with green tinted lenses and a ski jacket lighter than that worn by the man holding the revolver.

On November 5, 1981, McKissick and Arute were called to the West Haven police department where they viewed three photographic arrays. Each array contained nine photographs of black males. McKissick identified a photograph of Lafayette Ridley as the assailant who initially seized him during the attempted robbery. Arute selected two photographs which she indicated resembled the individual who held the revolver during the incident. One of the photographs she selected was that of the defendant. On the following day, Detective Harris examined the same arrays and identified a photograph of the defendant as the individual he encountered in the Quigley Stadium parking lot prior to his investigation of the attempted robbery.

At the trial, both Arute and Harris positively identified the defendant as an individual whom they encountered on the night of the attempted robbery. The defendant’s motion to suppress the in-court identification by Arute, based on suggestive procedure, was denied.

The defendant testified on his own behalf and denied that he had participated in the attempted robbery, stating that, at the time of the incident, he was with his former girlfriend, Pearl Smith. He also testified that, at the time of the trial, Pearl Smith was residing in the state of New Jersey. During closing argument, the prosecutor stated to the jury that the defendant “could have called” his former girlfriend as a witness. Defense counsel timely objected to this remark and, out of the presence of the jury, moved for a mistrial. The trial court denied the motion, but upon the defendant’s request, immediately directed the jury to ignore the remark and “give it no consideration at all.” Prior to the court’s charge to the jury, the defendant submitted a written request to charge on identification testimony, which was denied by the court.

In the defendant’s first claim of error, he takes issue with the court’s refusal to caution the jury, as he requested, of the dangers inherent in eyewitness identification testimony. The substance of the requested charge was that: identification testimony should be received with caution in that mistaken identification is not uncommon; the danger of suggestion is possible and that it is a matter of common knowledge; once a witness identified an individual, he is unlikely to change his testimony; and individuals belonging to one race have difficulty identifying individuals of another race. The requested charge also included a recitation of the reliability factors set forth in Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972). These factors “include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness.at the confrontation, and the length of time between the crime and the confrontation.” Id., 199-200.

Our Supreme Court has recognized that in appropriate identification cases it is preferable that the jury be charged regarding the dangers of misidentification. Whether the failure to make such an instruction would constitute reversible error, however, depends upon the circumstances of each case. State v. Tinsley, 181 Conn. 388, 394, 435 A.2d 1002 (1980), cert. denied, 449 U.S. 1086, 101 S. Ct. 874, 66 L. Ed. 2d 811 (1981); see United States v. Fernandez, 456 F.2d 638, 642 (2d Cir. 1972). Ultimately, a trial court’s instructions must present the case to the jury fairly and adequately. State v. Tinsley, supra, 394; State v. Harden, 175 Conn. 315, 321-22, 398 A.2d 1169 (1978).

The factual circumstances here support the conclusion that the instructions presented this case adequately to the jury for a fair resolution of the issues. The eyewitness, Arate, was positive in her identification of the defendant as the holder of the revolver during the incident. She had the opportunity to observe the assailants for a period of between five and seven minutes, in an area which was illuminated by street lights. Moreover, her description of the defendant given immediately after the incident was confirmed in significant respects by her fellow victim, McKissick. Harris, who had observed the defendant from a distance of twenty feet just prior to the attempted robbery, was also positive in his in-court identification of the defendant. Harris’ corroborative testimony provides a sufficient basis to support the court’s refusal to grant the defendant’s requested charge on identification.

Furthermore, counsel for the defendant, focusing on the reliability factors enunciated in Neil v. Biggers, supra, 199-200, thoroughly cross-examined Arate on her ability to observe the defendant under the conditions which prevailed at the time of the incident. It is well recognized that extensive cross-examination of an eyewitness will obviate the need for specific cautionary instructions on the reliability of such identifications. See United States v. Montelbano, 605 F.2d 56, 59 (2d Cir. 1979); United States v. Marchand, 564 F.2d 983, 997 (2d Cir. 1977), cert. denied, 434 U.S. 1015, 98 S. Ct. 732, 54 L. Ed. 2d 760 (1978).

Our analysis of the instructions the court gave to the jury with respect to identification discloses that the court repeatedly emphasized and focused the jury’s attention on the fact that the jurors must be satisfied beyond a reasonable doubt that the state proved the identification of the perpetrators as an essential element of the crime. We hold that the court’s instructions, taken as a whole, particularly in the area of identification, fairly and adequately presented the case to the jury so that no injustice was done to the defendant in this case.

The defendant in his second claim of error contends that the court erred in refusing to declare a mistrial after the prosecutor, during his closing argument, brought to the jury’s attention the failure of the defendant to call an alibi witness, whom the defendant testified he was with at the time of the incident. Following the prosecutor’s remarks, the defendant promptly objected and out of the presence of the jury moved for a mistrial. The court denied the motion, but at the defendant’s request instructed the jury to disregard the comment and to draw no conclusion with regard to his failure to call the witness.

It is the rule in Connecticut that “ ‘[t]he failure of a party to produce a witness who is within his power to produce and who would naturally have been produced by him, permits the inference that the evidence of the witness would be unfavorable to the party’s cause.’ ” State v. Watley, 195 Conn. 485, 488, 488 A.2d 1245 (1985), quoting Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960). When counsel for either party intends to argue that such an inference should be drawn, a ruling from the trial court should be sought and obtained. State v. Daniels, 180 Conn. 101, 113, 429 A.2d 813 (1980); see State v. Gonzalez, 197 Conn. 677, 680, 500 A.2d 1330 (1985). The prosecutor in this case failed to seek permission to argue for an adverse inference. Failure to seek an advance ruling does not, however, necessarily require the court to grant a mistrial. The court’s refusal to grant a mistrial may be sustained under certain circumstances. The first is where, had the prosecutor sought an advance ruling for permission to argue an adverse inference, the court would have granted the request. Secondino v. New Haven Gas Co., supra, 675, states that a two-pronged test must be satisfied before comment on a party’s failure to call a witness would be proper. First, the witness must be within the party’s power to produce, and second, the witness must be one that the party would naturally produce. Obviously, because the defendant testified that he was with his girlfriend on the night of the crime, he would be expected to produce her at the trial. Moreover, pursuant to General Statutes § 54-82i, the Uniform Act to Secure the Attendance of Witnesses from without the state in criminal proceedings, the witness was within the defendant’s power to produce. This statute provides compulsory process to secure the attendance of witnesses residing in states which have enacted the reciprocal provisions of the act. The state of New Jersey, where the witness in question reportedly was living, adopted the act in 1941. See N.J. Stat. Ann. § 2A:81-19 (West 1976). Without a showing by the defendant that the act was inapplicable; see Secondino v. New Haven Gas Co., supra, 675; the trial court could have granted the prosecutor’s request, had one been made, to argue for an adverse inference. There was no showing that the witness was unavailable despite the fact that she was living in New Jersey at the time of trial. Here, the Secondino test would have been met, rendering the failure of the prosecutor to seek an advance ruling harmless error.

The second alternative for sustaining the trial court’s failure to declare a mistrial is that the court’s prompt curative instruction removed any harm that might have resulted from the prosecutor’s comments. A mistrial is an extreme remedy and is warranted only where it is apparent that as a result of some occurrence during trial a party has been deprived of an opportunity for a fair trial. State v. DeMatteo, 186 Conn. 696, 703, 443 A.2d 915 (1982); State v. Gooch, 186 Conn. 17, 25, 438 A.2d 867 (1982); State v. Turcio, 178 Conn. 116, 143, 422 A.2d 749 (1979), cert. denied, 444 U.S. 1013, 100 S. Ct. 661, 62 L. Ed. 2d 642 (1980). When a mistrial is sought on the ground that a prosecutor’s improper remarks violated the defendant’s rights to due process, the same standard applies. State v. Cosgrove, 186 Conn. 476, 488-89, 442 A.2d 1320 (1982); State v. Hawthorne, 176 Conn. 367, 372, 407 A.2d 1001 (1978). The burden is on the defendant to show that the prosecutor’s remarks were prejudicial in light of the entire proceeding. State v. Cosgrove, supra, 488-89; State v. Hawthorne, supra; State v. Kinsey, 173 Conn. 344, 348-49, 377 A.2d 1095 (1977). The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of prosecutorial misconduct. State v. Cosgrove, supra. The trial court’s determination as to the fairness of the defendant’s trial must be given great weight. State v. McCall, 187 Conn. 73, 77, 444 A.2d 896 (1982). Applying these principles to the facts and circumstances in this case, it is apparent that the trial court, based upon either of the alternatives recited above, cannot be said to have abused its discretion in denying the defendant’s motion for a mistrial because of the improper remarks of the prosecutor.

The defendant’s fourth claim of error needs little discussion. The claim is that the trial court erred in not suppressing the victim’s in-court identification because it was based on suggestive police procedures. The defendant’s principal claim is that Arute’s in-court identification was tainted because she was told the name of the prime suspect after her tentative selection of the defendant’s photograph from the array. We have thoroughly discussed the identification process relative to this case in our analysis of the defendant’s first claim of error. We need not say more except to point out that even had the police procedures been unnecessarily suggestive, the identification was reliable based on the totality of the circumstances and meets the mandates of Neil v. Biggers, supra. The trial court acted properly and did not abuse its discretion in denying the defendant’s motion to suppress the victim’s in-court identification of the defendant.

There is no error.

In this opinion the other judges concurred.

       The crimes for which the two defendants were tried fall into this category.

       In civil trials, “[i]nstead of reading the pleadings, counsel for any party shall be permitted to make a brief opening statement to the jury in jury cases, or in a court case at the discretion of the presiding judge, to apprise the trier in general terms as to the nature of the case being presented for trial. The presiding judge shall have discretion as to the latitude of the statements of counsel.” Practice Book § 296.


text:
    Secundina Perez v. Mount Sinai Hospital et al.
    (3680)
    Borden, Daly and Bieluch, Js.

      Argued March 18 —
    decision released May 27, 1986

      Thomas William Mochnick, for the appellant (plaintiff).

      Ernest J. Mattei, with whom, on the brief, was Paul D. Williams, for the appellees (defendants).
   Daly, J.

The plaintiff instituted this medical malpractice action against the defendant Mount Sinai Hospital and the defendant physician, David Rothman, for improperly injecting her with a drug allegedly causing certain injuries. The trial court directed a verdict for the defendants and denied the plaintiffs motion to set aside the verdict. The plaintiff has appealed from these actions of the trial court and from the granting of motions to exclude expert medical testimony and to exclude certain documentary evidence.

In 1975, the plaintiff, Secundina Perez, was sixteen years old and was receiving prenatal care at the Mount Sinai Hospital clinic from Nathan Fischer, a resident physician in the employ of the hospital. The plaintiff’s child was born on September 7,1975. In October, 1975, the plaintiff, thereafter, returned to the hospital for a physical check-up and for birth control advice. On November 10, 1975, while at the hospital, she was examined and treated by Rothman, who injected her with the drug “Depo-Provera” as a birth control measure. The drug was an alternative to other birth control measures which were found to be inappropriate for the plaintiff. The plaintiff claims that, subsequent to this treatment, she experienced heavy vaginal bleeding which continued until December, 1976, when she was five months pregnant with her second child. She claimed to have also suffered from dizziness and nervousness. The plaintiff denies that she had been warned of the side effects of the drug and, had she been so warned, she claims she would never have consented to its injection.

The following brief procedural history of the case brings us to the ensuing appeal. This action was instituted by writ dated June 14, 1977. On April 19, 1978, the defendants served the plaintiff with interrogatories concerning whether she had employed an expert with regard to this action. On March 19,1979, the plaintiff answered those interrogatories in the negative. On August 31, 1981, in response to a second set of interrogatories, filed on April 14, 1981, the plaintiff answered that no physician had diagnosed her condition as being causally related to the injection of Depo-Provera administered to her on November 10, 1975.

A third set of interrogatories, filed by the defendants on June 27,1984, sought to elicit the name of each expert which the plaintiff intended to call, as well as the substance of their testimony. The plaintiff did not respond to these interrogatories. On July 23,1984, the trial court, Aspell, J., granted the defendants’ motion to exclude expert testimony on the ground that the plaintiff failed to inform the defendants of the existence or identity of any expert witness. On August 29,1984, the plaintiff subpoenaed Fischer to testify as an expert. On August 30,1984, just prior to the commencement of the jury selection, the defendants moved in limine to prohibit the plaintiff from seeking to elicit expert testimony as to standard of care or causation from “Dr. Fischer or any other doctor employed by Mt. Sinai now or in the past.” During trial, Fischer was prohibited, not only from testifying to the standard of care and causation, but also as to the authoritative nature of the Physician’s Desk Reference, a medical drug treatise.

On appeal, the plaintiff claims that the trial court erred (1) in excluding the expert testimony of Fischer concerning the issues of standard of care and causation, and (2) in prohibiting the introduction of the Physician’s Desk Reference.

The plaintiff claims that she correctly answered the interrogatories of April 19, 1978, and April 14, 1981, because she, in fact, had not “employed” (in the sense of “hire”) any expert at that time. The plaintiff further contends that it was not until the filing of the June 25, 1984 interrogatories that she was asked to identify any expert witness whom she intended to call. On July 23, 1984, the trial court granted the defendants’ motion to exclude the testimony of any expert witness. In light of this, the plaintiff claims that she was not allowed thirty days, pursuant to Practice Book § 224, in which to respond to the interrogatories propounded on June 25, 1984. The plaintiff further claims there is a distinction between a treating physician and an independent medical expert.

The trial court correctly concluded that the use of the word “employ” in the interrogatories also connotes “to make use of.” Over a period of approximately six years, the plaintiff never answered the interrogatories requesting the identity of any expert witness. “A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.” Practice Book § 220 (A) (1). Section 231 of the Practice Book further provides that “[i]f any party has failed to answer interrogatories or to answer them fairly . . . or has failed to comply with the provisions of Sec. 232 . . . the court may, on motion, make such order as the ends of justice require. Such orders may include the following: . . . (d) The entry of an order prohibiting the party who has failed to comply from introducing designated matters in evidence. ...” (Footnote added.)

We need not consider the plaintiffs claim that she was not afforded, pursuant to Practice Book § 224, thirty days in which to respond to the third set of interrogatories. The plaintiff failed to answer the first two sets of interrogatories and, if she did “employ” an expert thereafter, she had a continuing duty, under Practice Book § 232, to disclose the identity of any expert witness whom she intended to call to testify. Further, the plaintiff never responded to the third set of interrogatories even after the thirty day period. The term “expert” may be extended to “all persons professionally acquainted with the science or practice in question.” Bryan v. Branford, 50 Conn. 246, 248 (1882). Practice Book § 220 (A) (1) employs the term “expert witness” and does not draw a distinction between treating and independent experts.

“Such a ‘cat and mouse’ game was properly not condoned by the trial court.” Sturdivant v. Yale-New Haven Hospital, 2 Conn. App. 103, 106, 476 A.2d 1074 (1984). The discovery rules are designed to facilitate trial proceedings and to make a “trial less a game of blindman’s bluff and more a fair contest with the basic issues and facts disclosed to the fullest practical extent.” United States v. Procter & Gamble, 356 U.S. 677, 682, 78 S. Ct. 983, 2 L. Ed. 2d 1077 (1958). “The court’s decision on whether to impose the sanction of excluding the expert’s testimony concerning causation rests within the sound discretion of the court.” Sturdivant v. Yale-New Haven Hospital, supra, 107. Unless the trial court had abused a legal discretion, its action should not be disturbed; in making this analysis, we must afford the decision of the trial court great weight and allow every reasonable presumption to be made in favor of its correctness. Timm v. Timm, 195 Conn. 202, 206, 487 A.2d 191 (1985); Dudas v. Ward Baking Co., 104 Conn. 516, 518, 133 A. 591 (1926). “In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did.” Timm v. Timm, supra, 207; E. M. Loew’s Enterprises, Inc. v. Surabian, 146 Conn. 608, 611, 153 A.2d 463 (1959); Sturdivant v. Yale-New Haven Hospital, supra, 108. “The court’s conclusion, that the consequences of the plaintiff’s failure fully and fairly to disclose, despite being given ample opportunity to do so [over a period of six years], should fall upon the plaintiff rather than upon the defendants, was not an abuse of discretion. To hold otherwise would unfairly deny, under the circumstances of this case, the defendants the opportunity to prepare for or challenge the proposed testimony concerning causation.” Sturdivant v. Yale-New Haven Hospital, supra.

Fischer was not allowed to testify as to the authoritative nature of the 1975 Physician’s Desk Reference, and the trial court refused to admit it into evidence. “Under Connecticut law, if a medical treatise is recognized as authoritative by an expert witness and if it influenced or tended to confirm his opinion, the relevant portions thereof may be admitted into evidence in the exercise of the trial court’s discretion.” Cross v. Huttenlocher, 185 Conn. 390, 395, 440 A.2d 952 (1981); Kaplan v. Mashkin Freight Lines, Inc., 146 Conn. 327, 331, 150 A.2d 602 (1959). “[T]he trial court’s rulings excluding certain medical texts offered by the plaintiff from evidence cannot be disturbed. . . . [Tjhe court declined to admit the texts because of the danger that the jury would be confused or misled by examining the texts unaided by expert testimony.” Cross v. Huttenlocher, supra, 397. Even if the Physician’s Desk Reference were recognized by Fischer as being authoritative, it could not be shown that it influenced or tended to confirm his opinion since he was not permitted to give an opinion.

In bringing an action in medical malpractice, the plaintiff must present medical expert testimony to establish that the defendants’ treatment and care fell short of the required standard and that the breach proximately caused the plaintiff’s injury. Hurley v. Johnston, 143 Conn. 364, 367, 122 A.2d 732 (1956). “In Connecticut, both breach of the standard of care and proximate cause must be proved by expert testimony.” Campbell v. Pommier, 5 Conn. App. 29, 32, 496 A.2d 975 (1985). “It is well settled that the plaintiff cannot prevail unless there was positive evidence of an expert nature from which the jury could reasonably conclude that the defendant was negligent, except where there is manifest such gross want of care or skill as to afford, of itself, an almost conclusive inference of negligence that the testimony of an expert is not necessary.” Puro v. Henry, 188 Conn. 301, 305, 449 A.2d 176 (1982); Console v. Nickou, 156 Conn. 268, 273-74, 240 A.2d 895 (1968). The circumstances here do not rise to the level of negligence in Console, where the plaintiff, after the caesarean delivery of her third child, experienced pain which persisted until the removal of a suture needle approximately fifteen months later. In this case, the plaintiff testified that before being administered the Depo-Provera injection, she experienced some vaginal bleeding in November, 1975, and heavy vaginal bleeding prior to a miscarriage in 1974. Furthermore, during her medical treatment in 1976, the plaintiff reported no uterine or vaginal problems and provided no explanation for the occasions on which the bleeding stopped.

Our Supreme Court upheld a directed verdict in Grody v. Tulin, 170 Conn. 443, 365 A.2d 1076 (1976), where, in a wrongful death action, the opinion of a layman on the subject of linking the cause of cancer to a traumatic injury was considered mere speculation without the introduction of expert evidence. Id., 451. “ ‘[Such opinions] cannot support causal connection; that must rest upon the proven facts. The plaintiff failed to sustain the burden of making such causal connection and furnished the jury no logical basis for making the inference they drew.’ ” Id. “In Connecticut, a directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed.” Spencer v. Good Earth Restaurant Cor poration, 164 Conn. 194, 198, 319 A.2d 403 (1972); Desnoyers v. Wells, 4 Conn. App. 666, 668, 496 A.2d 237 (1985).

On reviewing the action of the trial court, in first directing and thereafter refusing to set aside the verdict, we find no abuse of discretion.

There is no error.

In this opinion the other judges concurred.

       The transcript indicates that the trial court directed a verdict for the defendants. The plaintiff claims that the trial court granted the defendants’ motion to dismiss while the judgment file indicates that the trial court denied the defendants’ oral motion for a directed verdict. The judgment file should be corrected to reflect the directed verdict for the defendants.

       Practice Book § 232 provides in pertinent part: “If, subsequent to compliance with any request or order for discovery and prior to or during trial, a party discovers additional or new material or information previously requested and ordered subject to discovery or inspection or discovers that the prior compliance was totally or partially incorrect or, though correct when made, is no longer true ... he shall promptly notify the other party, or his attorney, and file and serve . . . .”


author: Hull, J.

text:
    John M. Claydon, Jr., Administrator (Estate of Ann V. Finizie) v. Rona Finizie et al.
    (4183)
    Dupont, C. J., Hull and Borden, Js.
    Argued April 10 —
    decision released May 27, 1986

      Laurence V. Parnoff, for the appellant (named defendant).

      Amy E. Todisco, for the appellee (plaintiff).
   Hull, J.

The named defendant, Rona Finizie, her two brothers, the defendants Lionel T. and Edmond J. Finizie, and their decedent mother, whose estate is being administered by the plaintiff, are each owners of record as tenants in common of an undivided one-quarter interest in two pieces of real estate in Bridgeport. The plaintiff, representing the estate of the defendants’ mother, Ann, brought suit seeking a partition and sale of the real estate. The defendant Rona Finizie claimed in two overlapping special defenses and in a counterclaim that she had filed a claim against Ann’s estate for $60,000 for care and support she provided to Ann. She argued that since that amount exceeded the entire value of the estate, her claim had to be resolved before a decision could be made on the partition action. She also alleged essentially in two other special defenses that her two brothers held only naked record title to a one-quarter interest, each having made no payments in connection with the purchase and operations of the property. She asserted that, as a result, the property was equitably owned one-half by her and one-half by Ann’s estate.

The court, on May 2,1985, rendered judgment ordering partition by sale. The trial court, in that judgment, declared the ownership interests to be as alleged in the plaintiff’s complaint and stated flatly that “a sale will better promote the interest of the parties.” Only Rona appeals, raising the following two issues: (1) whether the trial court acted prematurely in hearing the matter and rendering judgment in light of her pending claim against the estate; and (2) whether the court erred in unduly restricting the admission of evidence she offered to support her claim of a one-half equitable interest in the property. Because we decide, sua sponte, that the complaint should have been dismissed for lack of subject matter jurisdiction, we do not consider these claims of error.

Although the complaint does not so state, it is apparent that the plaintiff sought a partition of the real estate under General Statutes § 52-495 and a sale under General Statutes § 52-500. Both statutes confer jurisdiction on the Superior Court “upon the complaint of any person interested.” It has long been well settled law that an administrator does not have title to real property but that title passes to the heirs subject to the right of administration. Brill v. Ulrey, 159 Conn. 371, 375, 269 A.2d 262 (1970); O’Connor v. Chiascione, 130 Conn. 304, 306-308, 33 A.2d 336 (1943); Bowen v. Morgillo, 127 Conn. 161, 168, 14 A.2d 724 (1940). The rule applies whether the fiduciary is an executor or administrator. Pigeon v. Hatheway, 156 Conn. 175, 177, 239 A.2d 523 (1968).

The precise question of whether an administrator, alleging nothing more than tenancy in common, is a “person interested” under either of these two statutes is a case of first impression. The case of Brill v. Ulrey, supra, is, however, clear authority for the proposition that such a claim must fail for lack of subject matter jurisdiction. The issue in Brill was whether an executor could institute and maintain an action to quiet title to real estate where there was no allegation that the property involved was needed to satisfy claims against the estate. General Statutes § 47-31 provides that an action to quiet title may only be brought by a “person claiming title to, or any interest in, real or personal property.” The defendants asserted that the plaintiff had no such interest. In responding to that claim, the Supreme Court stated: “We have permitted the representative of the estate of a deceased person to maintain an action to quiet title under three separate circumstances. In Munger v. Doolan, 75 Conn. 656, 662, 55 A. 169 [1903], we held that an administrator has sufficient interest in the realty to bring an action to quiet title if the property is needed to satisfy a claim against the estate. In Miner v. Miner, 137 Conn. 642, 646-47, 80 A.2d 512 [1951], the decedent himself had instituted an action to quiet title prior to his death, and we permitted his administrator c.t.a. to prosecute the case to judgment under authority of what is now General Statutes § 52-599. And most recently, in Pigeon v. Hatheway, 156 Conn. 175, 176-77, 239 A.2d 523 [1968], we allowed an executor to institute a suit under the theory that the cause of action was actually one to quiet title of personalty under the doctrine of equitable conversion, since the validity of an option to purchase real estate was being tested.

“Where, however, an executor seeks to institute and maintain an action to quiet title to real property without alleging and proving that the property is needed to settle claims against the estate, we do not think that the statutory requirement of interest in the property is sufficiently met. . . .

“The [O’Connor v. Chiascione, supra, 306-308,] decision makes it clear that the power of ‘possession, care and control’ granted to an executor under General Statutes § 45-252 over real estate during the settement of an estate is given only to protect the rights of creditors. See also Hardy v. Scott, 127 Conn. 722, 723, 19 A.2d 420 [1941]. The executor’s power is in derogation of the rights of the heirs, and since it is so limited in purpose, it is properly exercised only when the exigencies of the estate so require. Where, as in the instant case, no allegation is made that the property is needed to meet claims against the estate, there can be no occasion to permit the exercise of the executor’s power. The court below committed error, therefore, when it rendered a judgment partially in favor of the executors, who did not have a cause of action.” Brill v. Ulrey, supra, 374-76.

Absent a showing in this case by the plaintiff that he brought himself as administrator within some recognized or recognizable principle giving him a sufficient interest in the real estate to request its partition, he lacked standing to bring this action. “Standing is a matter of subject matter jurisdiction which cannot be conferred by the parties.” Housing Authority v. Local 1161, 1 Conn. App. 154, 157, 468 A.2d 1251, cert. denied, 192 Conn. 802, 471 A.2d 244 (1984). The Superior Court, therefore, lacked jurisdiction over the plaintiff’s complaint.

We note, for clarity, that the plaintiff could have, but did not, bring a complaint for partition or sale by direct petition to the Probate Court under the provisions of General Statutes § 45-257a. Under that statute, both partition and sale are authorized in language substantially similar to that of General Statutes §§ 52-495 and 52-500. We need not decide whether there is a requirement of an allegation or proof of interest under that procedure.

There is error, the judgment is set aside and the case is remanded with direction to dismiss the complaint for lack of subject matter jurisdiction.

In this opinion the other judges concurred.

       The complaint was brought only in the name of the estate of Ann Finizie. It did not name the fiduciary or allege proper appointment of one. The pleadings and the judgment, however, reflect the fact that the fiduciary is John M. Claydon, Jr.

       The court did not file a memorandum of decision elaborating on this barebones statement in the judgment, nor was articulation sought by the defendants.

       The issue we consider was not raised below nor briefed nor argued by the parties in this court. We therefore decide only such issues as are necessarily involved in the conclusion which we have reached.

       General Statutes § 52-495 provides in pertinent part: “Courts having jurisdiction of actions for equitable relief may, upon the complaint of any person interested, order partition of any real property held in tenancy in common . . . .”

       General Statutes § 52-500 provides in pertinent part: “(a) Any court of equitable jurisdiction may, upon the complaint of any person interested, order the sale of any property, real or personal, owned by two or more persons, when, in the opinion of the court, a sale will better promote the interests of the owners.”

       We do not reach the question of whether this statute should be construed as vesting exclusive control of such proceedings in the Probate Court or as merely creating jurisdiction concurrent with that of the Superior Court. The preeminent authority on Connecticut probate practice, however, concludes as follows: “The partition, or sale in lieu of partition, of real estate owned in part by a deceased person may furnish another example of concurrent jurisdiction. At one time, it was considered that the Superior Court could order the sale of the real estate of a deceased person before the final settlement of his estate where a partition between the joint devisees was not feasible. This, however, was because the statute at that time did not empower the Probate Court to order the sale of real estate to facilitate distribution. Under the present statutes, which empower the Probate Court to authorize a sale whenever it shall find that to grant such authority would be for the best interests of the parties in interest and which prohibit a Superior Court partition of any property belonging wholly to an estate in settlement in the Probate Court before it is ready for distribution, a case could hardly arise where the Probate and Superior Courts would have concurrent jurisdiction with reference to the sale or partition of property wholly owned by an estate. However, in the case of property partially owned by an estate, it would seem that both the Probate Court, within specified limits, and the Superior Court could order partition or sale in lieu of partition.” (Footnotes omitted.) 1 Locke & Kohn, Connecticut Probate Practice § 75. For a discussion of exclusive and concurrent jurisdiction in the Probate Court and the Superior Court; see Hall v. Dichello Distributors, Inc., 6 Conn. App. 530, 534-36, 506 A.2d 1054 (1986).