text:
    STATE OF CONNECTICUT v. NATHAN DULL
    (AC 20357)
    Spear, Hennessy and Daly, Js.

      Argued June 5
    officially released August 29, 2000

      Conrad Ost Seifert, for the appellant (defendant).

      Lawrence J. Tytla, senior assistant state’s attorney, with whom, on the brief, was Kevin T. Kane, state’s attorney, for the appellee (state).
   Opinion

DALY, J.

The defendant, Nathan Dull, appeals from the judgment of conviction, rendered after a trial by a three judge panel, of murder in violation of General Statutes § 53a-54a. On appeal, the defendant claims that the trial court improperly (1) concluded that he failed to establish as an affirmative defense that he lacked substantial capacity due to a mental disease or defect to appreciate or control his wrongful conduct, (2) violated his due process rights by failing to require the state to disprove his insanity defense beyond a reasonable doubt and (3) denied his motion for a presentence psychiatric evaluation pursuant to General Statutes § 17a-566. We affirm the judgment of the trial court.

The court reasonably could have found the following facts. The defendant had a long history of mental instability and substance abuse prior to the victim’s murder. In the summer of 1990, the defendant enlisted in the United States Marine Corps and began basic training at Parris Island. Thereafter, he was sent to Okinawa, where he experienced psychological and behavioral problems that resulted in his hospitalization at Bethesda Naval Hospital and treatment with antipsychotic medications. In the fall of 1992, he was discharged from the Marines and classified as being 50 percent mentally disabled from paranoid schizophrenia, which entitled him to receive disability benefits. Thereafter, the defendant’s condition had worsened and he was reclassified as being 100 percent mentally disabled as of September, 1995.

In the fall of 1996, the defendant moved to Groton. The victim and his friend, Richard Vanenburg, were crack cocaine dealers from Brooklyn and occasionally stayed at the defendant’s home. The defendant sometimes purchased cocaine from the victim and Vanen-burg with his monthly disability check or obtained the drug in exchange for allowing them to use his apartment.

At approximately 8 a.m. on January 20, 1997, Vanen-burg went to the defendant’s apartment for a prearranged meeting, but the defendant’s car was not in the parking lot. Vanenburg returned at 9 a.m. with a key to unlock the door. He entered the apartment where he discovered the victim’s body on the bathroom floor. The evidence suggested that the victim died from multiple blows to the head and face by a baseball bat.

The defendant was located several hours later in Rhode Island, where he was interviewed by a detective. Although he admitted to using marijuana and crack cocaine on the day of the murder, he did not admit to killing the victim. Forensic evidence linked the defendant to the killing, however, and, subsequently, he was charged with murder.

The defendant elected to be tried by a three judge panel. At trial, he offered the affirmative defense that he suffered from paranoid schizophrenia, that he was in an acutely psychotic state at the time of the killing and that he lacked substantial capacity to appreciate or control his wrongful conduct. On September 14,1998, the court rejected the defendant’s insanity defense and found him guilty of murder. The court noted that there was a divergence of opinion concerning the defendant’s mental capacity among the various mental health professionals who had evaluated him and concluded that the defendant failed to establish his affirmative defense by a preponderance of the evidence.

On January 20, 1999, defense counsel moved for a court-ordered psychiatric evaluation of the defendant to assist in the sentencing. The motion was denied. The defendant reargued the motion, but it was denied a second time. The defendant’s motion for a judgment of acquittal also was denied. On April 16, 1999, the defendant was sentenced to a term of thirty-five years to serve. This appeal followed.

I

The defendant first claims that the court improperly concluded that he failed to establish lack of substantial capacity as an affirmative defense. The defendant specifically claims that the court did not make the threshold finding that he suffered from mental illness and thus never considered whether he lacked substantial capacity to appreciate that his conduct was wrongful or to control his conduct within the requirements of the law. We do not agree.

We initially note that the defendant misconstrues the trial court’s ruling, which expressly states that the defendant failed to prove his affirmative defense that “he lacked substantial capacity as a result of mental disease or defect.” (Emphasis added.) The issue before this court, therefore, is whether the trial court’s conclusion that the defendant had failed to prove that he lacked substantial capacity as a result of mental disease or defect is supported by the evidence.

The following additional facts are relevant to our resolution of this issue. In support of his affirmative defense that he suffered from a mental disease or defect, the defendant presented testimony from family members and a minister who had known him for many years. The defendant’s mother testified that following his discharge from the Marines, the defendant had “a whole different persona about him.” She observed that the defendant had become sullen and withdrawn, that he laughed inappropriately and that he paced back and forth on the deck of their home, claiming to be guarding it. She also testified that the defendant characterized himself as “insane for the Lord,” and that he spoke about going to Israel to join the Mossad security force. She described how the defendant lost his job at a local hospital when he discontinued his medication and how his lifestyle deteriorated in 1995 and 1996.

The defendant’s father offered similar testimony as to the defendant’s behavioral changes and his erratic compliance with his prescribed medications. The family minister further testified that when he had met with the defendant after his military discharge, the defendant did not make eye contact, appeared anxious and was a markedly different person than the one he had known before he joined the Marines.

Two experts provided additional testimony for the defense. Susan Kruger, a psychiatrist at the Veterans Hospital in West Haven, where the defendant had been diagnosed as a paranoid schizophrenic some years earlier, treated the defendant from 1992 to 1996 and met with him a day or two after the murder. She testified that after being diagnosed with schizophrenia, the defendant initially did well on his antipsychotic medication, but that his condition deteriorated when he neglected to take the medication. During those times, Kruger observed various symptoms of mental illness, including hallucinations, disorganized behavior and disorganized thinking. She, therefore, changed the defendant’s medication to a type that could be administered by monthly injections and noted that the defendant had failed to go to the hospital for his monthly injection in January, 1997. She stated that when she met with the defendant one day after the victim’s death, he appeared anxious, expressed concern about being a suspect and denied killing the victim or being in the apartment when the victim was killed. She also recalled, however, that the defendant did not seem to experience any auditory hallucinations during their interview.

Peter Zeman, a psychiatrist who examined the defendant after the murder, testified at trial and also produced a written report on the defendant’s condition that was entered into evidence. In preparing his report, Zeman interviewed the defendant four times, reviewed the defendant’s past medical records and relied on portions of a comprehensive psychological evaluation conducted by his colleague Frank Stoll, who was a psychologist. Zeman testified that during three of the four interviews the defendant was medicated, that he admitted to the killing and that he appeared to be non-psychotic. He also testified that during one interview when the defendant was not medicated he denied killing the victim and appeared to be “floridly psychotic.”

According to Zeman, the defendant said that he had gone to Brooklyn to visit the victim’s family and to obtain drugs the weekend before the killing. The defendant also told Zeman that the victim had given him crack cocaine during the weekend, which he smoked, that he had stopped taking his medication at least two weeks before the killing and that he subsequently began hearing voices telling him to kill the victim. The defendant confessed that he picked up the baseball bat and repeatedly struck the victim on the head in response to the voices and then dragged the victim to the bathroom, undressed him, searched him for drugs and smoked the drugs he had found before leaving for Rhode Island.

Zeman opined that the defendant was intoxicated from cocaine at the time of the killing but that, even if he had not been intoxicated, his schizophrenic illness was so severe that he would have lacked substantial capacity either to appreciate that his conduct was wrongful or to control his conduct within the requirements of the law. Zeman attributed the defendant’s having missed his monthly injection of medication in January as the cause of his psychotic decompensation at the time of the victim’s death.

In rebuttal to the defendant’s insanity defense, the state primarily relied on its cross-examination of the two defense psychiatrists and Stoll’s psychological evalnation. ’ Stoll’s report was based on three interviews with the defendant while the defendant was medicated and a review of the defendant’s past medical records. Stoll observed that although the mental health professionals who had examined and treated the defendant in the past all found mental health problems, all did not conclude that he suffered from paranoid schizophrenia. Prior to the defendant’s discharge from the Marines, for example, the defendant was diagnosed at different times as suffering from alcohol abuse and avoidant personality traits or from a personality or conversion disorder, with no evidence of psychotic illness. Stoll’s report also noted that after his arrest, the defendant was examined and treated at the Whiting Forensic Institute (institute). Although the defendant was diagnosed with schizophrenia when admitted to the institute, the treating psychiatrist eventually decided that he did not suffer from a psychotic disorder and ultimately decreased and discontinued his medication with no obvious changes in the defendant’s behavior or mental status. In fact, the discharge summary from the institute indicated that the defendant’s condition at the time of discharge was normal, that there was no evidence of disorganization, delusions or other psychotic processes and that the defendant was not experiencing hallucinations. The defendant’s diagnosis upon discharge from the institute was that of cocaine dependence and adjustment disorder with anxiety.

Stoll believed that his own testing of the defendant also failed to support a diagnosis of schizophrenia. He concluded instead that the defendant was cocaine dependent and had a severe personality disorder with schizoid and antisocial features. During Stoll’s examination, the defendant refused to complete at least one test because it would not help him prove he was psychotic at the time of the murder. Stoll thus suggested that the defendant might have been feigning psychosis after the murder, although he found it difficult to believe that the defendant was bright or sophisticated enough to mislead so many competent psychiatrists and other mental health professionals. Stoll finally noted that the defendant had admitted to being high on crack when he attacked the victim and had given vague and contradictory answers as to whether the murder might have resulted from auditory hallucinations to kill, a desire to obtain crack or some combination of the two.

The state also attempted to undermine Zeman’s testimony for the defense. On cross-examination, Zeman admitted that despite the defendant’s prior history of hallucinations, he was unaware of any instance other than on the day of the killing that the defendant reported having command hallucinations. He stated that common symptoms of a person in a psychotic state would persist over a period of time, unless alleviated by medication, would be noticeable to a lay person and would include a disheveled and dirty appearance, talking in nonsensical ways, looking around as though responding to voices, mumbling and an inability to hold a train of thought, complete a sentence or respond appropriately to inquiries, none of which symptoms the defendant displayed after the killing.

The state also elicited testimony from a friend of the defendant who lived in Rhode Island that the defendant had showered, shaved and changed his clothes when he arrived at the friend’s apartment after the killing, thereby evincing attention to his appearance. Moreover, a detective from Rhode Island testified that during nearly five hours of questioning the defendant was calm, articulate and responsive, and that he did not display any symptoms indicating psychosis. Zeman testified that he was unaware that the defendant had made a brief, coherent and unremarkable telephone call to his Mend in Rhode Island on the morning of the killing. At one point, Zeman even acknowledged that the only possible indication that the defendant was psychotic was his denial to the detective that he was psychotic. Zeman also acknowledged that the use of crack cocaine could cause violent and aggressive behavior and induce psychotic symptoms, and he admitted that there was no way to quantify the aspects of the defendant’s behavior that could be attributed to an underlying psychosis and those that could be attributed to simultaneous cocaine intoxication.

“It is apparent, therefore, that the [court] reviewed conflicting evidence on the issue of the defendant’s mental capacity at the time he [committed the proscribed acts]. The evaluation of such conflicting evidence on the issue of legal insanity is the province of the finder of fact. . . . [W]e have repeatedly stated that our review of the conclusions of the trier of fact . . . is limited. . . . This court will construe the evidence in the light most favorable to sustaining the Mai court’s [judgment] and will affirm the conclusion of the trier of fact if it is reasonably supported by the evidence and the logical inferences drawn therefrom. . . . The probative force of direct and circumstantial evidence is the same. . . . The credibility of expert witnesses and the weight to be given to their testimony and to that of lay witnesses on the issue of sanity is determined by the trier of fact. . . . Furthermore, [i]n its consideration of the testimony of an expert witness, the [trier of fact] might weigh, as it sees fit, the expert’s expertise, his opportunity to obseive the defendant and to form an opinion, and his thoroughness. It might consider also the reasonableness of his judgments about the underlying facts and of the conclusions which he drew from them. . . . Moreover, [although expert witnesses testified on behalf of the defendant and the state called none, that alone is not a sufficient basis to disturb the verdict on appeal . . . for the [trier of fact] can disbelieve any or all of the evidence on insanity and can construe that evidence in a manner different from the parties’ assertions. . . . It is the trier of fact’s function to consider, sift and weigh all the evidence including a determination as to whether any opinions given concerning the defendant’s sanity were undercut or attenuated under all the circumstances. State v. Evans, 203 Conn. 212, 242, 523 A.2d 1306 (1987); see also State v. Cobb, 251 Conn. 285, 490, 743 A.2d 1 (1999) (the state can weaken the force of the defendant’s presentation by cross-examination and by pointing to inconsistencies in the evidence . . .).” (Citations omitted; internal quotation marks omitted.) State v. Quinet, 253 Conn. 392, 407-408, 752 A.2d 490 (2000).

In light of the totality of evidence, the court reasonably could have rejected the opinions of Kruger and Zeman and relied on the report of Stoll and the testimony of the other witnesses in concluding that the defendant had failed to prove by a preponderance of the evidence that, due to a mental disease or defect, he lacked substantial capacity to appreciate or control his wrongful conduct. “[T]he state mounted a vigorous challenge to the defendant’s insanity defense, and adduced considerable evidence, both on cross-examination and in its rebuttal case, to undermine the defendant’s claim.” Id., 411. Accordingly, we reject the defendant’s assertion that the evidence presented in support of his defense was so persuasive as to require a finding that it was more likely than not that he lacked substantial capacity due to a mental disease or defect to appreciate or control his wrongful conduct. The defendant, therefore, cannot prevail on his claim.

II

The defendant next claims that the court violated his due process rights, as protected by the United States constitution and article first, §§ 8 and 9, of the Connecticut constitution, in failing to require the state to disprove insanity. The defendant concedes that General Statutes § 53a-13 (a) imposes the burden of proving mental disease on a defendant and that current Connecticut Supreme Court precedent deems the statute constitutional, but nevertheless reasserts the same constitutional argument that failed in State v. DeJesus, 236 Conn. 189, 205, 672 A.2d 488 (1996), State v. Joyner, 225 Conn. 450, 471-72, 625 A.2d 791 (1993), and State v. Cole, 50 Conn. App. 312, 319-20, 718 A.2d 457 (1998), aff'd, 254 Conn. 88, 755 A.2d 202 (2000), in the hope that the holdings in these cases will be overruled.

In State v. Joyner, supra, 225 Conn. 458, our Supreme Court acknowledged the federal principle that a defendant’s sanity is not an element of the state’s case, so that the state need not bear the burden of proof on that issue. The court then concluded that the Connecticut constitution permits the legislature to determine that the defendant, rather than the state, must shoulder the burden of proof on sanity when sanity is not an element in the charge against the defendant. Id., 472; see also State v. DeJesus, supra, 236 Conn. 205. This court is bound by the decisional law of our Supreme Court. State v. Cole, supra, 50 Conn. App. 320. Accordingly, we conclude that the defendant’s due process rights were not violated.

Ill

The defendant finally claims that the court abused its discretion in failing to grant his motion for a presen-tence psychiatric examination pursuant to § 17-566. The defendant contends that such an examination would have shown that he is mentally ill, thereby justifying a substantial mitigation of his sentence. We do not agree.

It is within the discretion of the trial court to grant or deny a motion made pursuant to § 17a-566. State v. Maldonado, 51 Conn. App. 702, 706, 725 A.2d 962, cert. denied, 249 Conn. 904, 733 A.2d 224 (1999). “The purpose of an examination under [§ 17a-566] is not to determine competency to be sentenced. . . . The purpose of an examination under [§ 17a-566] is to allow the commissioner of mental health to make recommendations as to certain offenders concerning the sentence to be imposed and the place of confinement. . . . Nevertheless, [w]here the court has adequate psychiatric documentation of the defendant’s mental condition, there is no need for it to utilize the statutory provisions concerning further examinations. . . . The presence of some degree of mental illness does not prevent or avoid the imposition of sentence by the court nor does it necessarily require that the court blindly and automatically implement the statutory machinery providing for psychiatric examinations.” (Citation omitted; internal quotation marks omitted.) Id., 706-707.

In the present case, the court had more than sufficient evidence regarding the defendant’s mental condition to make an informed sentencing decision. The court reviewed the records of the Department of Veterans Affairs regarding the defendant’s psychiatric diagnosis. It also heard testimony from two psychiatrists in support of the defendant’s affirmative defense that due to his mental illness he lacked substantial capacity to appreciate or control his conduct within the requirements of the law. Stoll’s psychological evaluation of the defendant also was entered into evidence, as were records from the institute where the defendant was treated while awaiting trial. These combined sources provided extensive information as to the defendant’s treatment and diagnostic history, including his prior hospitalizations. Furthermore, the court noted in its sentencing decision that it had “taken into consideration and reviewed with great care [the defendant’s] mental health history.” Under these circumstances, the court did not abuse its discretion in denying the defendant’s motion pursuant to § 17a-566.

The judgment is affirmed.

In this opinion the other judges concurred.

       The three judges were impaneled pursuant to General Statutes § 54-82, which provides in relevant part: “(a) In any criminal case, prosecution or proceeding, the party accused may, if he so elects when called upon to plead, be tried by the court instead of by the jury; and, in such case, the court shall have jurisdiction to hear and try such case and render judgment and sentence thereon.
      “(b) If the accused is charged with a crime punishable by death or imprisonment for life and elects to be tried by the court, the court shall be composed of three judges to be designated by the Chief Court Administrator, or his designee, who shall name one such judge to preside over the trial. Such judges, or a majority of them, shall have power to decide all questions of law and fact arising upon the trial and render judgment accordingly. . . .”

       General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to canse the death of another person, he causes the death of such person or of a third person ... by force, duress or deception . . . .”

       General Statutes § 53a.-1 3 (a) provides: “In any prosecution for an offense, it shall be an affirmative defense that the defendant, at the time he committed the proscribed act or acts, lacked substantial capacity as a result of mental disease or defect, either to appreciate the wrongfulness of his conduct or to control his conduct within the requirements of the law.”

       General Statutes § 53a-13 seis forth the parameters of the defense, but does not mention the term “insanity.” Rather, it refers to a defendant’s “mental disease or defect.” Throughout this opinion, we use the terms “insanity” and “mental disease or defect” interchangeably.

       General Statutes § 17a-566 (a) provides in relevant part: “Except as provided in section 17a-574 any court prior to sentencing a person convicted of an offense for which the penalty may be imprisonment in the Connecticut Correctional Institution at Somers . . . may if it appears to the court that such person has psychiatric disabilü ies and is dangerous to himself or others, upon its own motion or upon request of any of the persons enumerated in subsection (b) of this section and a subsequent finding that, such request is justified, order the commissioner to conduct an examination of the convicted defendant by qualified personnel of the division. Upon completion of such examination the examiner shall report in writing to the court. Such report shall indicate whether the convicted defendant should be committed to the diagnostic unit of the division for additional examination or should be sentenced in accordance with the conviction. Such examination shall be conducted and the report made to the court not later than fifteen days after the order for the examination. Such examination may be conducted at a correctional facility if the defendant is confined or it may be conducted on an outpatient basis at the division or other appropriate location. If the report recommends additional examination at the diagnostic unit, the court may, after a hearing, order the convicted defendant committed to the diagnostic: unit of the division for a period not to exceed sixty days, except as provided in section 17a-567 provided the hearing may be waived by the defendant. Such commitment shall not be effective until the director certifies to the court that space is available at the diagnostic unit. While confined in said diagnostic unit, the defendant shall be given a complete physical and psychiatric examination by the staff of the unit and may receive medication and treatment without his consent. The director shall have authority to procure all court records, institutional records and probation or other reports which provide information about the defendant.”

       The panel consisted of Judges Thomas P. Miaño, Thomas F. Parker and Smart M. Schimelman, with Judge Miaño presiding.

       The thirty-live year sentence that was imposed was five years longer than the sentence that had been requested by the state, and Judge Schimelman dissent ed because he thought that an appropriate sentence would have been a sentence of forty-five years to serve.

       Zeman requested that Stoll conduct the evaluation, but ultimately disagreed with Stoll’s conclusion that the defendant was not psychotic.

       Stoll’s written evaluation was entered into evidence in conjunction with Zeman’s report, but Stoll himself did not testify at trial.

       Article first, § 8, of the constitution of Connecticut provides in relevant part: “No person shall ... be deprived of life, liberty or property without due process of law . . . .”
      Article first, § 9, of the constitution of Connecticut provides: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.”

       See footnote 5.


source: Caselaw Access Project

author: SPEAR, J.

license: Public Domain

text:
    SYLVANIA BURRIER v. WALTER P. BURRIER, JR.
    (AC 19043)
    Landau, Spear and Hennessy, Js.
    Submitted on briefs March 2
    officially released August 29, 2000

      Phillip A. Escoriaza and William M. Bloss filed a brief for the appellant (plaintiff).

      Timothy P. Lenes filed a brief for the appellee (defendant).
   Opinion

SPEAR, J.

The plaintiff, Sylvania Burner, appeals from the denial of her postjudgment motion for contempt. She claims that the trial court improperly denied her motion for contempt on the ground of laches because the defendant did not offer any evidence of either undue delay by the plaintiff or prejudice to himself. We reverse the decision of the trial court and remand the case for further proceedings.

The following are the undisputed facts and procedural history of this case. On March 20, 1962, the court rendered judgment dissolving the marriage of the parties and ordered the defendant to pay to the plaintiff $10 per week alimony and $15 per week child support. On February 18,1998, the plaintiff filed, in the Superior Court in the judicial district of New Haven, a motion for contempt and an application for a rule to show cause. The plaintiffs motion alleged, inter aha, that the defendant was approximately $21,840 in arrears on alimony and child support. In her motion, the plaintiff requested that the defendant be held in contempt and sanctioned according to law.

The motion was assigned for a hearing and the court appointed a guardian ad litem for the defendant at the request of the defendant’s counsel. Prior to the hearing and over the plaintiffs objection, the court transferred the case to the Superior Court in the judicial district of New London for the defendant’s convenience in light of his health and transportation difficulties as described by his counsel.

On November 2, 1998, the court heard the plaintiffs motion for contempt in New London. Although the plaintiff’s motion stated that the defendant was approximately $21,840 in arrears, she advised the court that the relief she sought was limited to the $10,600 in alimony that she was entitled to for the period from May 16, 1978, to the day of the hearing. The court vacated the appointment of the guardian ad litem because the guardian stated that the defendant “does understand the nature of the proceedings . . . and can assist his attorney in these proceedings.” The defendant did not appear at the contempt hearing, and his attorney explained that his absence was due to alcoholism, third stage prostate cancer and psychiatric problems.

While the plaintiff testified at the hearing, the defendant’s counsel did not call witnesses or offer any evidence. The court denied the plaintiffs motion for contempt and stated that it had adopted the defendant’s argument, through counsel, concerning laches. On November 18, 1998, the plaintiff filed this appeal.

We first set forth our standard of review. “[W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision.” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980). “[A] ‘trial court’s conclusions are to be tested by the finding; they must stand unless they are legally or logically inconsistent with the facts found or unless they involve the application of some erroneous rule of law material to the case.” Cummings v. Tripp, 204 Conn. 67, 87, 527 A.2d 230 (1987).

The plaintiff first claims that the court improperly denied her motion for contempt on the ground of laches because the defendant did not offer any evidence of either undue delay by the plaintiff or prejudice to himself. We agree with the plaintiff that no prejudice was established and, therefore, do not address the court’s conclusion that the delay was inexcusable.

The burden is on the party alleging laches to establish that defense. Id.; Seymour Housing Authority Tenants Assn. v. Housing Authority, 18 Conn. App. 393, 405-406, 558 A.2d 1002 (1989). “Laches consists of two elements. First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant. Kurzatkowski v. Kurzatkowski, 142 Conn. 680, 685, 116 A.2d 906 (1955). ... The mere lapse of time does not constitute laches . . . unless it results in prejudice to the defendant ... as where, for example, the defendant is led to change his position with respect to the matter in question. . . . Bozzi v. Bozzi, [177 Conn. 232, 239, 413 A.2d 834 (1979)].” (Citations omitted; internal quotation marks omitted.) Emerick v. Emerick, 28 Conn. App. 794, 803-804, 613 A.2d 1351, cert. denied, 224 Conn. 915, 617 A.2d 171 (1992).

Prejudicial delay in bringing suit, the principal element in establishing a laches defense, was not established here. The defendant did not offer evidence at the hearing concerning prejudice. The defendant asserts that the court reasonably inferred that there was prejudice to him and that this inference was based on the facts in evidence, specifically, that by waiting two decades to assert her claim at a time when the defendant is old and ill, the plaintiff has prejudiced his defense.

In its articulation, the court stated that “[t]he plaintiffs neglect in asserting her rights in conversations with the defendant over the years prejudiced [the defendant’s] case; no one is required to keep personal records for twenty years. It is not unreasonable to infer that the defendant, in reliance upon the plaintiffs failure to insist upon payments due her year after year after year, failed to move to modify the obligation if he was insolvent, or failed to keep records for two decades if he made such payments.”

The court could not properly rely on argument by the defendant’s attorney or on matters not in evidence in finding prejudice to the defendant. See Roberts v. Roberts, 32 Conn. App., 465, 474-75, 629 A.2d 1160 (1993). The defendant did not offer evidence as to financial or bank records or as to his ability to recoup such records; therefore, he failed to carry his evidentiary burden on the second element of the defense of laches. Thus, the court incorrectly found prejudice to the defendant in the absence of a factual basis and incorrectly concluded that laches barred the plaintiff from seeking the relief she requested.

As relief, the plaintiff claims that we should direct the court to grant her motion for contempt because the court’s sole reason for denying the plaintiffs motion was erroneous and the uncontroverted evidence demonstrated the defendant’s contempt. We do not agree.

The remand is for a new hearing. A finding of contempt invokes the court’s exercise of discretion. See Schurman v. Schurman, 188 Conn. 268, 273, 449 A.2d 169 (1982); Ford v. Ford, 52 Conn. App. 522, 529, 727 A.2d 254 (1999). A finding of contempt is discretionary, and we decline the plaintiffs invitation to take away the court’s discretion by directing a finding of contempt. Because laches is purely an equitable doctrine, governed largely by the circumstances and allowed at the discretion of the court in cases brought in equity, we are reluctant to foreclose this defense. See Giordano v. Giordano, 39 Conn. App. 183, 214, 664 A.2d 1136 (1995). This is especially so where we do not know why the defendant failed to appear, but counsel claimed that it was because of serious health problems.

The denial of the plaintiffs motion for contempt is reversed and the case is remanded for a new hearing on that motion.

In this opinion the other judges concurred.


text:
    STATE OF CONNECTICUT v. ORINDEL KIDD
    (AC 18593)
    Spear, Hennessy and Shea, Js.
    Argued January 14
    officially released August 29, 2000

      Frank P. Cannatelli, for the appellant (defendant).

      Rita M. Shair, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Maxine Wilensky, senior assistant state’s attorney, for the appellee (state).
   Opinion

SPEAR, J.

The defendant, Orindel Kidd, appeals from the judgment of conviction, rendered after a jury trial, of one count of carrying a pistol without a permit in violation of General Statutes § 29-35 and one count of possession of a weapon in a motor vehicle in violation of General Statutes § 29-38. The defendant claims that the trial court improperly denied his motion to suppress the gun that was seized from his person. Specifically, he claims that the gun should have been excluded from trial because the arresting officer had neither a reasonable and articulable suspicion, pursuant to Terry v. Ohio, nor proper grounds under the exigent circumstances exception to approach him. We affirm the judgment of the trial court.

At the hearing on the defendant’s motion to suppress, the court found the following facts. On July 19, 1996, at about 7 p.m., plainclothes officers of the New Haven police department conducted a drug surveillance in unmarked vehicles on Putnam Street. When several officers saw two men within a group engaged in what appeared to be a drug transaction in front of 129 Putnam Street, the officers got out of their vehicles and shouted, “Police!” The group scattered in all directions, and two officers chased the two suspects down a narrow driveway and through the backyard of 129 Putnam Street.

Officer Thomas Lokites followed the two officers chasing the suspects to the back of the premises and came upon a car parked in the driveway that was occupied by three men. Lokites approached the vehicle and asked the defendant, who was sitting in the driver’s side of the car, for identification. The defendant responded to Lokites’ inquiry by asking Lokites why he wanted to know his name. Lokites then asked the defendant to step out of the car, but the defendant instead started the ignition as if to leave.

Fearing that the defendant might run down the two officers returning from their chase, Lokites reached inside the car to turn off the ignition. As Lokites put his head through the car window, he saw a gun on the floor between the defendant’s feet. Lokites yelled to the two returning officers that the defendant had a gun. Lokites then struggled with the defendant to remove him from the car and felt a hard obj ect in the defendant’s waistband, which turned out to be another gun. The two officers went to the passenger’s side of the car, turned off the ignition and removed the passengers. A further search of the car uncovered narcotics.

The following procedural history is also relevant to this appeal. The defendant was charged with one count of possession of a narcotic substance with the intent to sell, one count of carrying a pistol on his person without a permit and two counts of possession of a weapon in a motor vehicle without a permit. Prior to trial, the defendant filed a motion to suppress the evidence of the guns found in the car and on his person. The court denied the defendant’s motion and admitted the two guns into evidence. The defendant was subsequently acquitted of the narcotics possession charge and the charge relating to the gun found on the floor of the car, but convicted of the two charges relating to the gun found on his person. This appeal followed.

The defendant claims that the court improperly denied his motion to suppress the gun that was seized from his person. We disagree.

“Our standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record. . . . [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .” (Internal quotation marks omitted.) State v. Blackman, 246 Conn. 547, 553, 716 A.2d 101 (1998).

The defendant claims that when Lokites approached the car, he did not have a reasonable and articulable suspicion, pursuant to Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), that any of the car occupants had engaged in criminal conduct or was about to engage in such conduct. Additionally, the defendant claims that Lokites did not have grounds to approach him based on exigent circumstances. Consequently, he argues that because Lokites had no right to approach him and subsequently to be in a position to see the gun on the floor, the seizure of the defendant’s person and the gun that he carried was illegal. The defendant concedes that if Lokites had the right to approach the car, his actions thereafter were proper. He mounts no separate challenge to Lokites’ actions of turning off the car ignition or seizing the gun from his person after Lokites saw the gun on the floor of the car.

The flaw in the defendant’s argument is that he misconstrues Lokites’ approach to the car as a Terry stop or as one requiring an emergency situation. Our Supreme Court has recognized that “police on patrol perform a variety of functions. Thus, a police officer, in carrying out his duties, may stop and speak to an individual on the street without necessarily impheating the individual’s constitutional rights.” State v. Oquendo, 223 Conn. 635, 656, 613 A.2d 1300 (1992). “Courts have made clear that police officers do not bring about a ‘seizure’ merely by asking questions of a citizen, even when the officer identifies himself as a police officer.” State v. Williamson, 10 Conn. App. 532, 540, 524 A.2d 655 (1987), citing Florida v. Royer, 460 U.S. 491, 497-98, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983); United States v. Woods, 720 F.2d 1022, 1026 (9th Cir. 1983); United States v. Hernandez, 668 F.2d 824, 826-27 (5th Cir. 1982).

When we examine Lokites’ actions against this legal backdrop, it is clear to us that his approach and initial inquiry of asking the defendant to identify himself did not amount to a Terry stop nor did it require an emergency situation. If we were to accept the defendant’s reasoning, a police officer would have no right to approach anyone except in an emergency situation or where the officer had a reasonable and articulable suspicion that the person being approached had been involved in criminal activity or was about to commit a crime. Accordingly, we cannot say that Lokites’ actions were improper. The court, therefore, properly denied the defendant’s motion to suppress.

The judgment is affirmed.

In this opinion the other judges concurred.

        Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

       The defendant also claims that the court improperly determined that he did not have standing 1o challenge the seizure of the gun. The defendant was acquitted of the charge relating to the gun found on the floor of the car and we do not have to address standing in resolving the issues presented here.

       The defendant also filed several other motions to suppress that are not at issue in this appeal.

       While this case involves a police officer located in what appears to be a private driveway, the defendant makes no claim that it was his driveway or that he had an expectation of privacy there. Under these circumstances, we see no reason to distinguish this situation from one where an officer approaches a person on the street.


text:
    STATE OF CONNECTICUT v. JIMMY WILLIAMS
    (AC 18637)
    Lavery, C. J., and Spear and Dupont, Js.
    Argued March 29
    officially released August 29, 2000

      Cameron Dorman, special public defender, for the appellant (defendant).

      Susan C. Marks, supervisory assistant state’s attorney, with whom, on the brief, was Michael Dearington, state’s attorney, for the appellee (state).
   Opinion

SPEAR, J.

The defendant, Jimmy Williams, appeals from the judgment of conviction, rendered after a jury trial, of two counts of carrying a pistol without a permit in violation of General Statutes § 29-35 (a). The defendant claims that his convictions violate his state and federal constitutional rights to be free from double jeopardy because the uninterrupted act of carrying a pistol without a permit on different days is a single continuing offense, and, consequently, multiple punishments are prohibited. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On October 16, 1996, the defendant and a friend, Ramone Vasquez, were riding their bicycles in the Fair Haven area of New Haven near Ferry Street. Later in the day, the defendant was riding alone on Ferry Street when he heard someone call, “Vasquez.” The defendant turned to see who had called the name and saw the victim, Carmello Amodovar, and the victim’s friend, Roberto Santiago, who were both members of a street gang. The victim pointed at the defendant and told Santiago that the defendant had insulted his girlfriend. Upon hearing about the insult, Santiago asked the defendant to approach him. The defendant did so, and Santiago told him that the victim wanted to engage in a one-on-one fight.

Subsequently, four other gang members arrived at the scene, pushed the defendant from his bicycle and began hitting him. The victim joined in on the attack and, during the altercation, the defendant’s sweatshirt was pulled upward, exposing a gun in his waistband. One of the attackers yelled “gun,” and all of the gang members ran away except the victim and Santiago. During the struggle, the victim and Santiago tried to get the gun from the defendant. The victim was shot in the abdomen and, subsequently, died.

After the shooting, the defendant took the gun and fled. He stayed with a cousin until October 20, 1996, and, thereafter, he stayed at a friend’s house on Alton Street. On October 21, 1996, a police officer assigned to investigate the shooting went to interview a witness at 19 Alton Street. While the officer was at the rear door of the residence, the defendant left through a back window and crossed into the adjoining yard. The officer called for the defendant to stop and he did so. The officer then patted down the defendant and found a .40 caliber handgun in the front waistband of his pants that matched a .40 caliber shell casing that the police had found at the scene of the October 16,1996 shooting. The defendant did not have a permit to carry the handgun. Subsequent forensic testing established that the shell casing found at the scene of the shooting had been fired from the same weapon that had been found on the defendant.

The defendant was charged with one count of murder-in violation of General Statutes § 53a-54a (a) and two counts of carrying a pistol without a permit in violation of § 29-35 (a). He was acquitted of the murder charge and found guilty of the two counts of carrying a pistol without a permit. He received a sentence of five year’s imprisonment, execution suspended after four years, followed by two years probation on each count, to be served concurrently. This appeal followed.

The defendant claims that the uninterrupted act of carrying a pistol without a permit on different days is a single continuing offense, and, therefore, the multiple punishments imposed here violate the state and federal constitutional protections against double jeopardy. Thus, he claims that one of his convictions must be vacated. We disagree.

“The double jeopardy clause of the fifth amendment to the United States constitution provides that no person shall ‘be subject for the same offense to be twice put in jeopardy of life or limb . . . ” State v. Hickam, 235 Conn. 614, 617, 668 A.2d 1321 (1995), cert. denied, 517 U.S. 1221, 116 S. Ct. 1851, 134 L. Ed. 2d 951 (1996). This constitutional guarantee is applicable to the states through the fourteenth amendment to the United States constitution. Benton v. Maryland, 395 U.S. 784, 793-96, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). Although the Connecticut constitution has no specific double jeopardy provision, the “prohibition on double jeopardy is implied through the due process provisions of article first, §§ 8 and 9,” and is coextensive with that of the federal constitution. State v. Laws, 37 Conn. App. 276, 292, 655 A.2d 1131, cert. denied, 234 Conn. 907, 659 A.2d 1210 (1995).

“The double jeopardy clause protects against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense.” State v. Hickam, supra, 235 Conn. 617-18. The defendant’s claim invokes that aspect of double jeopardy that prohibits multiple punishments for a conviction of a single offense. “Double jeopardy analysis in the context of a single trial is a two-step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met.” (Internal quotation marks omitted.) State v. Glover, 40 Conn. App. 387, 391, 671 A.2d 384, cert. denied, 236 Conn. 918, 673 A.2d 1145 (1996).

“In deciding whether the crimes arose out of the same act or transaction, we analyze the language of the information.” State v. Nita, 27 Conn. App. 103, 113, 604 A.2d 1322, cert. denied, 222 Conn. 903, 606 A.2d 1329, cert. denied, 506 U.S. 844, 113 S. Ct. 133, 121 L. Ed. 2d 86 (1992). The substitute information here alleged that the defendant unlawfully carried a pistol on October 16, 1996, at or near 187 Ferry Street and on October 21, 1996, at or near 19 Alton Street. The prohibited acts of carrying a pistol without a permit, on two different dates, at different locations, constitute separate acts or transactions. We conclude that the crimes here are separate and distinct and did not arise out of the same act or transaction.

We are not persuaded by the defendant’s argument that the two violations of § 29-35 (a) for which he was convicted were not separate acts, but rather part of the same transaction as a continuing course of conduct. The defendant claims in his brief that “[w]here a statute is defined in terms of dominion or control, the offense is continuous in nature.” Thus, he claims that because the word “carry” in § 29-35 (a) is synonymous with “possession,” the legislature did not intend multiple punishments for the continuous carrying of a pistol.

The key to determining whether the continuing offense doctrine applies is legislative intent. Our Supreme Court has explained that “ 1 [t]he proper double j eopardy inquiry when a defendant is convicted of multiple violations of the same statutory provision is whether the legislature intended to punish the individual acts separately or to punish only the course of action which they constitute.’ Albernaz v. United States, 450 U.S. 333, 337, 101 S. Ct. 1137, 67 L. Ed. 2d 275 (1981) (Citations omitted.) State v. Freeney, 228 Conn. 582, 587-88, 637 A.2d 1088 (1994).

In State v. Hopes, 26 Conn. App. 367, 374-75, 602 A.2d 23, cert. denied, 221 Conn. 915, 603 A.2d 405 (1992), this court noted that the word carry is not defined in § 29-35 and that “[w]hen there is no explicit definition of a statutory term this court will attempt to determine it by identifying the problem in society to which the legislature addressed itself by examining the legislative history of the statute . . . .” (Internal quotation marks omitted.) We then concluded that the problem in society that the legislature sought to address by enacting § 29-35 is the “use of unlicensed weapons in public.” Id., 375, citing House Bill No. 5652, 24 S. Proc., Pt. 10, 1981 Sess., pp. 3150-51. As we noted in Hopes, the statute “allows a person to keep an unlicensed pistol or revolver in her home or business location.” Id. The statute, however, prohibits a person from carrying a pistol or revolver on one’s person outside the home or business without having a valid permit.

The legislature clearly did not intend that proof that a person had carried a pistol without a permit on one occasion would immunize that person from punishment for carrying the same pistol on another, later occasion. Moreover, carrying and possession are different concepts, that is, a person can possess an. item without carrying it on his person. The statute is designed to prohibit the carrying of a pistol without a permit and not the possession of one. We conclude that the legislature intended to create discrete offenses for which multiple punishments may be imposed.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 29-35 (a) provides in relevant part: “No person shall carry any pistol or revolver upon his person, except when such person is within his dwelling house or place of business, without a permit to carry the same issued as provided in section 29-28. . .

       Although Glover deals with the question of whether a person can be convicted of two distinct offenses for the same conduct, the double jeopardy inquiry is the same.


author:
MIHALAKOS, J.
      LAVERY, C. J.,

text:
    EDWARD F. MACKOWSKI ET AL. v. ZONING COMMISSION OF THE TOWN OF STRATFORD
    (AC 19237)
    Lavery, C. J., and Spear and Mihalakos, Js.

      Argued April 4
    officially released August 29, 2000

      Gregory P. Lynch, for the appellants (plaintiffs).

      George W. Booth, Jr., special assistant town attorney, for the appellee (defendant).
   Opinion

MIHALAKOS, J.

The plaintiffs, Edward F. Mackowski and Fairfield 2000 Homes Corporation, appeal from the judgment of the trial court dismissing their appeal from the decision of the defendant zoning commission of the town of Stratford (commission) denying their application for approval for the construction of an apartment building for the elderly. The plaintiffs claim that the commission failed to meet its burden of proving, by sufficient evidence, that a substantial public interest in health or safety clearly outweighed the need for the plaintiffs’ housing units for senior citizens. We reverse the judgment of the trial court.

The following facts are undisputed. Mackowski owned two parcels of property on Judson Place in Strat-ford and decided to develop affordable housing units on his parcels after reading a notice posted by the town of Stratford in a newspaper. Specifically, the notice stated that the town was seeking sites for housing for the elderly and specified that preference would be given to sites containing forty units or more.

On February 15, 1995, the plaintiffs submitted an application to the commission to construct an apartment building that would provide forty-three units of housing for senior citizens, with eleven of those designated as “affordable housing” pursuant to General Statutes § 8-39a. On March 19, 1996, and on April 16, 1996, public hearings on the plaintiffs’ application were held. During those hearings, the commission’s professional staff, various experts, the plaintiffs and several neighbors of the proposed development site offered testimony and evidence concerning various aspects of the project, documenting the benefits and disadvantages of building on the site. On June 10,1996, the commission met in an administrative session and voted unanimously to deny the plaintiffs’ application. The plaintiffs appealed to the trial court.

The trial court concluded that there was sufficient evidence in the record to support the fifth reason stated by the commission for denying the plaintiffs’ application, namely, that “[t]he adverse impacts on the health, safety, and welfare of the community which would be created by the scale, density, [and] massiveness of this project and its impact on traffic patterns appear unnecessary in achieving affordability for [the plaintiffs’] development.” Specifically, the court found that there was sufficient evidence for the commission to have concluded that the proposed development could have an adverse impact on the sewer system, and that such an impact implicated a substantial interest in the public health. The court also found that traffic safety was a substantial public interest and that there was sufficient evidence to show that traffic congestion in the area would greatly increase. The court, therefore, dismissed the plaintiffs’ appeal, concluding that “the commission was justified in denying the application because it was necessary to protect the public interest in health and safety.” This appeal followed. Additional facts will be discussed where relevant to the issue on appeal.

The plaintiffs claim that the commission failed to meet its burden by proving, by sufficient evidence, that a substantial public interest in health or safety clearly outweighed the need for the plaintiffs’ housing units for the elderly. We agree.

The following additional facts are necessary to the resolution of this appeal. At the public hearings, the plaintiffs submitted a “Traffic Impact Report” prepared by I.K. Chann Associates, Transportation Engineers (report). The report summarized data concerning existing traffic and parking conditions in the area surrounding the proposed housing. Using special traffic counts, the report included a calculation of the capacity of the intersection of Judson Place and Main Street, the intersection most likely to be affected by the development. The report, applying industry standards as defined in a 1985 highway capacity manual, stated that the existing capacity levels during the morning and evening rush hours were good to excellent and that considerable reserve capacity was available at the intersection that could accommodate any future traffic growth caused by the development.

A study of accident data on Judson Place and its two intersections was also conducted, the results of which were included in the report. It was found that seven minor accidents, with no injuries, had taken place on Judson Place and at its two intersections during the period of 1992 through 1994. Thus, the report stated that there were a small number accidents in the area.

The report also included an estimation of the amount of traffic that would be generated by the plaintiffs’ development. Because it was assumed that many of the elderly residents would be retirees, the report stated that travel would be light and likely to occur during off peak hours. Additionally, it was noted in the report that bus service was available for the elderly population living in the Main Street area because there was a bus stop located at Judson Place, just a few hundred feet from the proposed apartment buildings. The report also included a review of the adequacy of the site plan for the affordable housing units. It stated that the driveway of the building would provide excellent access to the building and parking areas.

The commission also compiled information concerning the impact on traffic from the plaintiffs’ proposed development, which essentially corroborated the report submitted by the plaintiffs. An employee of the town planning department prepared and submitted to the commission a document entitled “Traffic Impact Study Evaluation” (study) that verified the figures and rates in the report that had been submitted by the plaintiffs. The study also stated that additional traffic on Judson Place resulting from the proposed housing would total between 1.5 percent and 3.3 percent and that the volume of the average daily traffic on Main Street would increase by less than one percent, a rather insignificant amount. Furthermore, the town’s police department, fire department, engineering department, building department, public works department and health department were all given the opportunity to review the plaintiffs’ application and plans, none of which had unfavorable comments concerning the proposed housing plans.

The only individuals who expressed concern about the traffic density at the development site were some of the neighboring residents, who stated that the traffic conditions that existed in the neighborhood were poor because of the high concentration of churches and commercial activities in the immediate vicinity. Specifically, several residents pointed out that, at times, the traffic on Judson Place was limited to a single lane due to extremely limited off street parking facilities for commercial neighbors. Additionally, the town engineer expressed concerns regarding the capacity of the sanitary sewer system.

General Statutes § 8-30g (b) governs the plaintiffs’ appeal and provides in relevant part: “Any person whose affordable housing application is denied or is approved with restrictions which have a substantial adverse impact on the viability of the affordable housing development or the degree of affordability of the affordable dwelling units . . . may appeal such decision pursuant to the procedures of this section. . . .”

In Christian Activities Council, Congregational v. Town Council, 249 Conn. 566, 735 A.2d 231 (1999), our Supreme Court identified the differences between an affordable housing land use appeal pursuant to § 8-30g, and a traditional zoning appeal. “First, an appeal under § 8-30g (b) may be filed only by an applicant for an affordable housing development whose application was denied or [was] approved with restrictions which have a substantial adverse impact on the viability of the affordable housing development or the degree of affordability of the affordable dwelling units .... Thus, where the town has granted such an application, either outright or without imposing such restrictions, there is no appeal under § 8-30g (b).

“Second, the scope of judicial review under § 8-30g (c) requires the town, not the applicant, to marshal the evidence supporting its decision and to persuade the court that there is sufficient evidence in the record to support the town’s decision and the reasons given for that decision. By contrast, in a traditional zoning appeal, the scope of review requires the appealing aggrieved party to marshal the evidence in the record, and to establish that the decision was not reasonably supported by the record. Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527, 542-43, 600 A.2d 757 (1991).

“Third, if a town denies an affordable housing land use application, it must state its reasons on the record, and that statement must take the form of a formal, official, collective statement of reasons for its actions. Id., 544. By contrast, in a traditional zoning appeal, if a zoning agency has failed to give such reasons, the court is obligated to search the entire record to find a basis for the [agency’s] decision. . . .

“We reach this conclusion based on the text and the purpose of the statute. The text requires that the town establish that sufficient record evidence supports the decision from which such appeal is taken and the reasons cited for such decision .... General Statutes § 8-30g (c) (1) (A). Thus, textually the statute contemplates reasons that are cited by the town. This strongly suggests that such reasons be cited by the zoning agency at the time it took its formal vote on the application, rather than reasons that later might be culled from the record, which would include, as in a traditional zoning appeal, the record of the entire span of hearings that preceded the vote. Furthermore, the statute requires that the town establish that: its decision [was] necessary to protect substantial public interests in health, safety, or other matters which the [agency] may legally consider; General Statutes § 8-30g (c) (1) (B); those interests clearly outweigh the need for affordable housing; General Statutes § 8-30g (c) (1) (C); and those public interests cannot be protected by reasonable changes to the plan. General Statutes § 8-30g (c) (1) (D). These requirements strongly suggest that the town be obligated, when it renders its decision, to identify those specific public interests that it seeks to protect by that decision, so that the court in reviewing that decision will have a clear basis on which to do so. Furthermore, the key puipose of § 8-30g is to encourage and facilitate the much needed development of affordable housing throughout the state. West Hartford Interfaith Coalition, Inc. v. Town Council, [228 Conn. 498, 511, 636 A.2d 1342 (1994)]. Requiring the town to state its reasons on the record when it denies an affordable housing land use application will further that purpose because it will help guard against possibly pretextual denials of such applications. We therefore read the statute, consistent with its text and purpose, to require the town to do so.” (Citation omitted; internal quotation marks omitted.) Christian Activities Council, Congregational v. Town Council, supra, 249 Conn. 575-78.

Here, the commission has failed to meet its burden of proving, by sufficient evidence, that its denial of the plaintiffs’ application was necessary to protect substantial public interests in health, safety or other matters that the commission may legally consider. The evidence adduced at the public hearings failed to specifically address the reasons why the public interests involved were substantial enough to outweigh the town’s undisputed need for affordable housing. At the hearings, a number of concerns and issues were raised about the proposed development, including its impact on density, the town plan of development for the area, traffic, parking, zoning regulations, the sewer system and housing affordability. The trial court found that the commission had failed to produce sufficient evidence to support its denial of the plaintiffs’ application as to most of these issues except for those relating to the adverse impact on traffic and the sewer system.

The commission never addressed the traffic and sewage concerns in detail; rather, it made generalized statements concerning the adverse impacts on the health, safety and welfare of the community that would be created by the project and remarked that those adverse impacts appeared to be unnecessary in achieving affordability for this development. The evidence before the commission from the town departments established that there would be no significant problems with traffic or the sewer system as a result of the proposed development. Neighbors of the proposed development did express concern with the impact on traffic from the development. While they claimed that at times traffic could be dense at the intersection of the proposed development, there was no record of any specific findings of fact, such as the frequency of the traffic, to support this allegation. Furthermore, while the town engineer expressed concerns regarding the effect that the continued development of the area would have on the capacity of the sanitary sewer system, there was no showing that a possibility of substantial harm could ever result. Specifically, the town engineer stated that sufficient capacity likely exists to accommodate the proposed development and that it should be checked periodically. On the basis of these facts, we conclude that there was insufficient evidence to support the commission’s decision denying the plaintiffs’ application. The evidence failed to show that the commission’s decision was necessary to protect substantial public interests in health and safety or that such public interests clearly outweighed the need for affordable housing. Therefore, the trial court improperly dismissed the plaintiffs appeal.

The judgment is reversed and the case is remanded with direction to sustain the plaintiffs’ appeal.

In this opinion SPEAR, J., concurred.

LAVERY, C. J.,

dissenting. I respectfully dissent from the majority’s conclusion that the commission failed to meet its burden of proving, by sufficient evidence, that a substantial public interest in health or safety clearly outweighed the need for the plaintiffs’ housing units for senior citizens. Accordingly, I would affirm the judgment of the trial court dismissing the plaintiffs’ appeal from the decision of the commission denying their application to construct housing units for elderly residents.

As noted by our Supreme Court in Christian Activities Council, Congregational v. Town Council, 249 Conn. 566, 585, 735 A.2d 231 (1999), sufficient evidence in this context means “less than a preponderance of the evidence, but more than a mere possibility. We stated that the zoning commission need not establish that the effects it sought to avoid by denying the application are definite or more likely than not to occur, but that such evidence must establish more than a mere possibility of such occurrence. . . . Thus, the commission was required to show a reasonable basis in the record for concluding [as it did]. The record, therefore, must contain evidence concerning the potential harm that would result if the zone were changed . . . and concerning the probability that such harm in fact would occur.” (Citation omitted; internal quotation marks omitted.) In an affordable housing land use appeal, as in a traditional zoning appeal, “[t]he zone change must be sustained if even one of the stated reasons is sufficient to support it.” (Internal quotation marks omitted.) West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 513, 636 A.2d 1342 (1994).

One of the reasons stated by the commission in its memorandum of decision for denying the plaintiffs’ application was that the proposed development would have a negative impact on traffic in the area. The commission reached that conclusion not on the basis of speculation, but with support from specific testimony placed before it. As the trial court noted from the record: “Many neighbors spoke about the on-street parking problem that currently exists, one neighbor describing the traffic flow on Judson Place as ‘horrendous’ when both sides of the street were used for parking. . . . One neighborhood resident reported that the public works project currently undeiway at the intersection of Main Street and East Broadway was undertaken because of the high volume of traffic through the streets. Other neighbors pointed out the East Broadway [construction]. Because this construction includes the installation of new traffic signals and a rerouting of traffic through this intersection, the traffic patterns will change as a result. Traffic on East Broadway will no longer be able to turn onto Main Street, meaning that more cars will likely be using Judson Place as the route for entering 1-95. The proposed project has a single driveway for traffic to enter and exit from Judson Place. As mentioned above, neighbors also testified that on-street parking on Judson Place adds to the congestion at all times of the day and weekends from activities of the churches and organizations in the neighborhood, sometimes reducing the street into a single lane of traffic, a point the traffic engineer conceded. This evidence is sufficient to call into question the expert’s turning movement analysis, and his conclusion about future traffic congestion during off peak hours.”

I conclude, as did the trial court, that this evidence was sufficient for the commission to have concluded that the project as proposed would greatly add to traffic congestion in the area. Traffic safety is a substantial public interest and adequately justifies the commission’s denial of the plaintiffs’ application.

Accordingly, I respectfully dissent.

       Fairfield 2000 Homes Corporation is a regional nonprofit development corporation that has developed more than 200 affordable housing units in 1he cities and towns of Stamford, Bridgeport, Westport, Darien, Danbury and Wilton.

       The commission claims that the public interest in health and safety could not be protected by reasonable changes to the plaintiffs’ proposed development. Because we agree with the plaintiffs that the commission failed to meet its burden of proving, by sufficient evidence, that a substantial public interest in health or safety clearly outweighed the need for the plaintiffs’ housing units for the elderly, we do not address this issue.

       General Statutes § 8-39a defines “affordable housing” as “housing for which persons and families pay thirty per cent or less of their annual income, where such income is less than or equal to the area median income for the municipality in which such housing is located, as determined by the United States Department of Housing and Urban Development.”

       The site, which is located near the center of the town and surrounded by several asphalt parking lots, is a combination of three separate parcels of land containing approximately 67,686 square feet.

       The commission ciled six specific reasons as to why the plaintiffs’ application was being denied: (1) “There are technical zoning deficiencies regarding the lot lines for this development”; (2) “This petition is in violation of two sections of the existing Zoning Regulations—Section 5.3 under which the petitioner has filed this application and Section 12 (parking)”; (3) “There are several major inconsistencies with goals, policies and recommendations of the Town’s current Plan of Development”; (4) “The proposal lacks sensitivity to the existing character of the surrounding neighborhood which has unique historic value, evidenced by its being listed in the National Register of Historic Places"; (5) “The adverse impacts on the health, safety, and welfare of the community which would be created by the scale, density, [and] massiveness of this project, and its impact on traffic patterns appear unnecessary in achieving affordability for this development”; and (6) “Since this petition has been submitted with reference to Section 8-30g of the Connecticut, General St atufes, the Zoning Commission recognizes its responsibility to weigh the merits of this proposal in view of the community’s need for affordable housing. After careful consideration of evidence in the record, the Commission believes that the anticipated adverse impact of this development on the neighborhood and the community as a whole far outweigh the need for the eleven affordable units that would be created by this development.”

       The traffic report, submitted by the plaintiffs and noted by the majority, which tends to support the conclusion that the proposed development would not significantly increase area traffic, states that traffic generated by elderly housing of this type is minimal and that the planned parking will not be fully occupied because the housing would consist of an elderly population. The trial court questioned the reliability of such a statement given that the term “elderly housing” might not adequately describe the development. The trial court stated: “There was much dispute about what the actual makeup of the residents of the project would be. Even if restricted as ‘elderly housing,’ only one resident must be 62 or older, meaning the resulting mix could need more or less parking than the ‘average’ elderly housing project. Therefore, any conclusions based on the elderly designation of the project are suspect.”


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. JAMES STRONG
    (AC 18951)
    Foti, Spear and Healey, Js.
    Argued May 4
    officially released August 29, 2000

      Donald Dakers, special public defender, with whom, on the brief, were Glenn W. Falk, special public defender, and Philip K. Houck, law student intern, for the appellant (defendant).

      LeonF. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were Michael Dearington,
      state’s attorney, and Elpedio N. Vitale, senior assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, James Strong, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a. The defendant claims that the trial court improperly denied his motion to suppress a statement he gave to the police. We affirm the judgment of the trial court.

On the basis of the evidence adduced at trial, the jury reasonably could have found the following facts. On February 21, 1996, at approximately 2:30 p.m., Officer Andrew Faggio of the New Haven police department went to the two story residence of the seventy-two year old murder victim, James King, in New Haven. Upon arrival, Faggio observed the deceased victim lying on his back on the living room floor. The victim had blood on his face and clothes, and a woman’s coat was tied around his neck. Faggio also observed that the downstairs was in disarray. The victim’s empty wallet was found lying on an ottoman in the living room, and credit cards were scattered around the room. The upstairs portion of the residence was in similar condition, and several valuables were missing.

On February 22, 1996, the defendant voluntarily submitted to an interview with the police and, thereafter, gave them a tape-recorded statement that was transcribed and which he signed. The defendant also signed a waiver of rights form.

According to the statement given to the police, the defendant went to the victim’s residence at around noon on February 20, 1996, to visit with the victim. During this visit, the defendant learned that his grandmother was in a hospital. The defendant made several telephone calls. In one of those calls, he attempted to borrow some money from an uncle. After about twenty minutes, the defendant departed from the victim’s residence and waited for the victim to leave. Thereafter, the defendant returned and gained entrance to the house by breaking a windowpane in the side door, and reaching in and opening the door.

Upon entering the house, the defendant took a videocassette recorder from the downstairs den and left the victim’s residence. The defendant later sold the videocassette recorder for $25. Shortly thereafter, the defendant' went to a friend’s basement apartment and “got high.” A few hours later, however, the defendant returned to the victim’s residence. The broken windowpane was covered with cardboard. The defendant pushed back the cardboard and again gained entrance by reaching in and opening the door. The defendant then proceeded to take approximately $40 in silver dollars and half-dollar s from a piggy bank.

According to the defendant, he then heard the victim enter the house. The defendant stated that he ran down the stairs and shoved the victim from behind, causing the victim to be knocked to the floor in the living room next to a china cabinet. The defendant then ran out of the victim’s residence.

According to the defendant, he later returned to the victim’s house, but received no answer when he knocked on the door. The defendant entered the house and found the victim still lying on the floor in the living room. The defendant stated: “I went over to him and said, ‘Grandpa, grandpa.’ There wasn’t no answer. So, I bent down and I test his heart, I test his chest, and I couldn’t tell if his heart was beating or not, so I put my hand to his nose and I didn’t feel no breathing. So, I put my hand to his chest and was pumpin’ on his chest, and I tried to give him mouth-to-mouth resuscitation and still [there] was no response.” The defendant stated that he put a towel over the face of the victim and departed from the residence.

An evidentiary hearing was held on June 19, 1998, on the defendant’s motion to suppress his statement. After making the following findings of fact, the court, O’Keefe, J., denied the defendant’s motion, stating: “The statements were voluntary and made after a knowing and intelligent waiver .... [T]he defendant was, for purposes of this motion alone, was in custody. So, a warning and a waiver were necessary. . . . Detective [John] Bashta, whose testimony I accept, indicated that he got a call while he was proceeding to another location to come back to One Union Avenue, which is the New Haven police department, because the defendant was there. Detective Bashta was not aware how [the defendant] got there, but was informed that he was there and was available for questioning.

“Detective Bashta encountered the defendant sitting in a main conference room, which was not any kind of a confined area. The defendant was not handcuffed. Detective Bashta told the defendant why he was there. There was no evidence of any tricks or any kind of subterfuge used by the police. Detective Bashta indicated that the defendant had no problem with talking with the police and agreed to answer questions.

“State’s exhibit number one, for the purposes of the motion to suppress, was a waiver form, which was presented to the defendant. The testimony was that he read it. He signed it. The detective had him read a few lines out loud so that he knew that he could read and write. The waiver form is a standard waiver form, and it includes the appropriate warnings. . . .

“The defendant agreed to talk to the detective and signed the form, and it was dated, and a time was put on it. The interview was on tape. The defendant never indicated that he wanted to leave. He was never told that he could not leave. The detective testified that [the defendant] appeared to be lucid and . . . there was no indication of any intoxication.

“With regard to that, I have listened to the tape-recorded statement that was taken, and his conversation and speech were clear, lucid and intelligent, clearly related to the questions that were being asked. Further evidence in that regard is that the defendant made some corrections and initialed those corrections when the final transcript was produced a little bit later in the day. Although the defendant may have, at some point during the interview, appeared upset and tearful, that affect is . . . appropriate for the proceedings. There’s no evidence of any kind of confusion or thought disorder or anything of that nature .... The defendant was familiar with the criminal process, having been informed of his Miranda rights on previous occasions.

“The state has satisfied its burden with regard to the proof of waiver, which is proof by a preponderance of the evidence, and I can state for the record that even if the standard had been higher, that the state would have satisfied that in view of the evidence here, beyond any doubt, any reasonable doubt . . . that this was a voluntary, knowing and intelligent waiver. The evidence supporting that, in my view, is substantial.”

The sole issue on appeal is whether the court improperly denied the defendant’s motion to suppress the statement he gave to the police as a result of the court’s conclusion that he had waived his Miranda rights voluntarily, knowingly and intelligently. It is well settled that “[t]he state has the burden of proving the voluntariness of [a defendant’s] confession by a fair preponderance of the evidence.” (Internal quotation marks omitted.) State v. Pinder, 250 Conn. 385, 418, 736 A.2d 857 (1999); see Lego v. Twomey, 404 U.S. 477, 489, 92 S. Ct. 619, 30 L. Ed. 2d 618 (1972); State v. James, 237 Conn. 390, 411, 678 A.2d 1338 (1996). Our Supreme Court recently clarified the proper scope of appellate review of a trial court’s determination of voluntariness. See State v. Pinder, supra, 420. “To begin, we note the established rule that [t]he trial court’s findings as to the circumstances surrounding the defendant’s interrogation and confession are findings of fact . . . which will not be overturned unless they are clearly erroneous. ... As [is] true concerning appellate review of determinations of custodial interrogation, although we give deference to the trial court concerning these subsidiary factual determinations, such deference is not proper concerning the ultimate legal determination of voluntar-iness. In its review of state court determinations of voluntariness, the United States Supreme Court long has concluded that the ultimate question whether, under the totality of the circumstances, the challenged confession was obtained in a manner compatible with the requirements of the Constitution is a matter for independent federal determination. . . . Consistent with the well established approach taken by the United States Supreme Court, we review the voluntariness of a confession independently, based on our own scrupulous examination of the record. The ambiguity apparent in [prior Connecticut Supreme Court] cases is that, while correctly citing to the relevant federal case law for the proposition that we will conduct an independent determination of voluntariness . . . [our Supreme Court also has] continued to state in these same cases that [o]n the ultimate issue of voluntariness . . . we will conduct an independent and scrupulous examination of the entire record to ascertain whether the trial court’s finding is supported by substantial evidence. . . . [Continued use of the substantial evidence language, when it is inconsistent with the plenary review that we in fact conduct, perpetuates a misstatement of the law. . . . [Therefore, [the proper scope of review regarding the] ultimate issue of voluntariness requires us, not to ascertain whether the trial court’s finding is supported by substantial evidence, but to conduct a plenary review of the record in order to make an independent determination of voluntariness.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 420-21.

Our scrupulous review of the record reveals that the defendant voluntarily, knowingly and intelligently waived his Miranda rights. The court found Bashta’s testimony to be credible. The defendant had the ability to read and write, was not a novice to the criminal justice system and was well aware of his rights when he executed his waiver. It appeal's from the record that he understood what he was waiving and that he did so voluntarily, without coercion, threats or compulsion by the law enforcement officers. We also conclude that while the defendant may have been upset or distraught when he gave his statement, that was of little consequence to his general emotional state as it affected his decision to waive his Miranda rights. We do not credit at all the defendant’s claim that he was intoxicated when he executed the waiver. Again, the court credited Bashta’s testimony, which obviously showed otherwise. Because the statement was tape-recorded, the court had the advantage of listening to the actual voice of the defendant and found that his “conversation and speech were clear, lucid and intelligent, clearly related to the questions that were being asked.” The court concluded, and we agree, that the defendant’s claim that he was intoxicated when he gave the statement appears to be inconsistent with his ability to read the twenty-eight page statement, and sign each page and initial the corrections he made. The court properly denied his motion to suppress.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54a provides: “(a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except, that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circtimstanc.es as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.
      “(b) Evidence that the defendant suffered from a mental disease, mental defect or other mental abnormality is admissible, in a prosecution under subsection (a.) of this section, on the question of whether the defendant acted with intent to cause the death of another person.
      “(c) Murder is punishable as a class A felony in accordance with subdivision (2) of section 53a-35a unless it is a capital felony or murder under section 53a-54d.”

       In addition to the charge of murder, the defendant was charged with and found guilty of one count of felony murder in violation of General Statutes § 53a-54c. On September 18, 1998, the court sentenced him to sixty years incarceration for the murder conviction. The judgment file indicates that the felony murder conviction was merged with the murder conviciion. At oral argument, counsel for the defendant withdrew, with the permission of the defendant, a second issue wherein the defendant claimed that the sentence imposed by the court violated his right against double jeopardy.

       Furthermore, the police found the defendant’s fingerprints on the exterior windowpane attached to a side door leading to the kitchen, an empty piggy bank and a toiletry box that was on a bed in one of the bedrooms.

       The defendant is the step-grandson of the victim.

       Ira Kanfer, an associate medical examiner who conducted an autopsy on the victim, concluded that the victim had three separate abrasions on his forehead, three separate hemorrhages on his scalp, a cut over his eye, a bruise on his lower lip and a number of loose teeth that were ready to fall out. According to Kanfer, these injuries were consistent with having endured a fight or struggle and would not likely be caused by a fall.

       The court did not file a memorandum of decision, but instead transcribed its oral findings, then signed and dated the transcript of those findings. See Practice Book § 4059, now § 64-1.

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