author: LAVER Y, J. HEIMAN, J.,

text:
    DECARLO AND DOLL, INC. v. TERRY M. DILOZIR
    (AC 15568)
    Lavery, Heiman and Ilennessy, Js.

      Submitted on briefs March 24
    officially released July 8, 1997

      Dominic J. Caciopoli filed a brief for the appellant (plaintiff).

      Homer G. Scoville filed a brief for the appellee (defendant).
   Opinion

LAVER Y, J.

The plaintiff, DeCarlo and Doll, Inc., appeals from the judgment of the trial court for the defendant, Terry M. Dilozir, in a breach of a contract action. On appeal, the plaintiff contends that the trial court improperly found the contract ambiguous and therefore determined that a subsequent letter between the parties was a contractual amendment. This determination by the trial court permitted the defendant to prevail on a special defense that alleged that the defendant’s payment obligations under the contract were conditioned on the defendant’s seeming financing from a third party, which never occurred. We agree with the plaintiff and reverse the judgment of the trial court.

The following facts are relevant to this appeal. On July 10, 1989, the defendant signed and accepted a proposal submitted by the plaintiff dated June 16,1989. The first sentence of the proposal stated: “We are pleased to submit this proposal for engineering and technical services required to prepare a site plan and applications for development of proposed self storage and business services at the Nutec Property on Route 85 in Amston.” The proposal consisted of four parts.

Part one of the proposal was entitled “basic scope of services” and had ten separate subparts. These ten subparts listed the services that the plaintiff would perform for the defendant, including the preparation of various plans and reports concerning the development of the defendant’s facility. Part two of the proposal listed “additional services” that were not included in the plaintiffs basic scope of services, but could be provided by the plaintiff if the defendant desired. Part three of the proposal was entitled “Fees, Schedules, and Payment” and had seven parts that addressed the payment structure of the transaction. The fourth and final part of the proposal was entitled “Contract/Notice to Proceed” and stated: “We are looking forward to the opportunity of being of service to you on this project. If this proposal meets your approval, kindly sign and return one copy to this office with the $3,000 retainer. This will serve as our notice to proceed and contract.”

In addition to the aforementioned proposal, the parties executed an “amendment” to their initial agreement, which was signed by the plaintiff on July 6,1989, and by the defendant on July 10,1989. Part one of this amendment stated that “[t]his amendment is to be attached to, made a part of and incorporated by reference into the above noted agreement between [the parties]. . . . The fees, schedules, and payments in section III of the agreement are amended to or supplemented as indicated below.”

Part two of the amendment entitled “Fees, Schedules, and Payments” stated: “A) Item 4 of the Original Contract ‘Retainer’ will be reduced from a retainer of $3,000 to a retainer of $2,000. B) Item 5 ‘payment schedule’ shall be revised to be 6 monthly payments and the interest accrued for carrying charges. Interest will be as stated in the original contract of 1% on amounts over 30 days. The 6 monthly payments will be $3666.67 each month starting with the July invoices. The 6th invoice will also show the retainer being applied bringing the total to $24,000 not including interest. You will be invoiced separately for meetings which are on a per diem basis in accordance with the original contract. . . .” Part three of the amendment stated: “This agreement does not alter or modify terms and conditions of any other agreements between [the parties].”

Following the execution of the original agreement and its accompanying amendment, the plaintiff sent a letter dated February 8, 1990, to the defendant. This letter stated: “In our proposal dated June 16, 1989, we suggested a budget of $2,000 for the application preparation and meeting attendance (basic scope of services, item 10). Meetings with the abutters to your project and design changes due to Town Staff and DOT comments were not included in this budget. Because of this increase in scope, we suggest the budget for this item be increased to $8,000. Kindly sign and return one copy to this office.”

The defendant added a handwritten sentence to the lower portion to the letter. This sentence stated: “Subject to payment with all outstanding payments to be paid in full at time of financing of project” and was initialed by both the plaintiff and the defendant. The defendant signed and dated this letter on August 2,1990.

The plaintiff performed the services mentioned in the proposal and billed the defendant for the amount of $25,411.38. The defendant never received financing and did not pay $22,926.40 from the bill for the plaintiffs services. The plaintiff brought a breach of contract action against the defendant, and the defendant filed a counterclaim and special defenses.

After a trial, the trial court ruled that the second sentence of section three, part two, of the contract is ambiguous. That sentence states: “We suggest a budget of $2,000 for this work, however this budget may change as the scope is defined.” The trial court held: “I find that there was an ambiguity in the initial contract, about whether the $2,000 was an estimate or a maximum cap, and when the plaintiff sent the defendant [the letter from February 8, 1990] asking that the defendant agree to an increase in the budget for item 10 in [the original contract], from $2,000 to $8,000, that is a very strong indication, from which I draw the inference, that the intent of the parties was that the $2,000 would be a cap and not merely an estimate. And therefore, the increase in that cap from $2,000 to $8,000 constituted a consideration flowing from the defendant to the plaintiff . . . which supported the newly negotiated provision that’s written in by hand. . . . Whatever money became due after the execution of [the letter from February 8,1990], and whatever money was due at the time of execution of [the letter from February 8, 1990], would all be contingent.”

Accordingly, the trial court found for the plaintiff on his third special defense. The defendant, in his third special defense, contended that his payments to the plaintiff were conditioned on his obtaining financing, which was an event that never occurred.

“Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law. . . . In such a situation our scope of review is plenary, and is not limited by the clearly erroneous standard. . . . When only one interpretation of a contract is possible, the court need not look outside the four comers of the contract .... In addition, [t]he circumstances surrounding the making of the contract, the purposes which the parties sought to accomplish and their motives cannot prove an intent contrary to the plain meaning of the language used. . . . Finally, [t]he court will not torture words to impart ambiguity where ordinary meaning leaves no room for ambiguity.” (Citations omitted; internal quotation marks omitted.) Venture Partners, Ltd. v. Synapse Technologies, Inc., 42 Conn. App. 109, 113-14, 679 A.2d 372 (1996). Therefore, its proper interpretation is a matter of law.

In the present case, the proposal dated June 16,1989, sets forth the scope of the contracts. In this original contract, the plaintiffs basic scope of services in section one, parts one through nine, are to be paid pursuant to section three, part one, under fees, schedules, and payment. In return for the plaintiffs providing the services described in section one, parts one through nine, the defendant was to pay the plaintiff the fixed sum of $24,000. This figure and the scope of services in section one, parts one through nine, was not amended by any of the succeeding contract amendments between the parties. Moreover, there was no question of the plaintiffs performance of sections one through nine.

Part ten, under section one’s basic scope of services, was to be paid pursuant to section three, part two, under fees, schedules, and payment. The rate used for these services is per diem according to the plaintiffs current hourly rate schedule. The $2000 budget is suggested but was permitted to change as the scope of the project was defined. This rate was never changed from the per diem rate based on the plaintiffs hourly rate. The contract also stated that payment was due thirty days after the defendant was billed on the first invoice.

The amendment to the first proposal, which was also dated on June 16, 1989, and executed by both parties, modified the payment schedule and reduced the retainer to $2000. That amendment expressly states that all other items of the contract are to remain in full effect.

The letter from the defendant to the plaintiff dated February 8, 1990, described the change in services pursuant to section one, part ten, of the basic scope of services. This agreement, which was executed by both parties, also increased the budget for this service from $2000 to $8000. In addition, payment was to be paid in full at the time of financing the project. This letter clarified and increased the scope of services in section one, part ten, of the basic scope of services, and was accepted by both parties.

We conclude that there was no ambiguity in the second sentence of section three, part two, of the contract. This sentence merely suggested a budget of $2000 for the work performed under part ten of the basic scope of services. This sentence also stated that the scope of this work could be changed as the work progressed. The letter of February 8, 1990, agreed to by both the plaintiff and defendant, did make such a change.

“In interpreting contract items, we have repeatedly stated that the intent of the parties is to be ascertained by a fair and reasonable construction of the written words and that the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract. . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms.” (Internal quotation marks omitted.) Legg v. Legg, 44 Conn. App. 303, 306, 688 A.2d 1354 (1997). We conclude that the $2000 mentioned in that section of the contract was clearly a budget estimate for that section, which could later be changed as the scope of the project developed, and not a ceiling. Therefore, this increase in the scope of services and in the budget was new consideration for the amendment set forth in the same instrument and which allowed all outstanding payments to be made at the time the defendant received financing for the project.

Furthermore, the clause “subject to payment with all outstanding payments to be paid in full at time of financing” was not a condition on which payment was contingent. This clause set forth the time, which was in the sole control of the defendant, when payment was to be made by the defendant. In Dills v. Enfield, 210 Conn. 705, 719-20, 557 A.2d 517 (1989), our Supreme Court held that a developer’s duty to provide construction plans to a vendor was not discharged because the developer was unable to obtain mortgage financing. The court concluded that the developer’s failure to obtain financing was an event that the parties foresaw at the time the contract was entered. Id. “[Ojnly in the most exceptional circumstances have courts concluded that a duty is discharged because additional financial burdens make performance less practical than initially contemplated. See, e.g., Neal-Cooper Grain Co. v. Texas Gulf Sulphur Co., 508 F.2d 283, 294 (7th Cir. 1974) (party not allowed ‘to escape a bad bargain merely because it is burdensome’); American Trading & Production Corporation v. Shell International Marine, Ltd., 453 F.2d 939, 942 (2d Cir. 1972) (closing of Suez Canal requiring charterer to sail nearly twice as many miles at a cost of nearly one third more than the contract price does not excuse performance); United States v. Wegematic Corporation, 360 F.2d 674, 676-77 (2d Cir. 1966) (duty of manufacturer to produce revolutionary computer system not excused because of ‘engineering difficulties’ requiring two years and $1.5 million to correct); Peerless Casualty Co. v. Weymouth Gardens, 215 F.2d 362, 364 (1st Cir. 1954) (increased costs caused by the unexpected outbreak of war does not constitute superior force ending obligation of contract); Matter of Westinghouse Electric Corporation, 517 F. Sup. 440, 452-53 (E.D. Va. 1981) (duty to remove spent fuel not excused merely because reprocessing of the fuel became unprofitable); see also Connecticut General Statutes Annotated § 42a-2-614, comment 4; E. Farnsworth, [Contracts (1982) § 9.6], p. 680; 6 A. Corbin, Contracts (1962) § 1333; 16 S. Williston, Contracts (3d Ed. Jaeger 1978) § 1968; J. White & R. Summers, Uniform Commercial Code (2d Ed. 1980) § 3-9, pp. 131-32.” Dills v. Enfield, supra, 717-18.

In addition, this obligation was in the control of the defendant, and, therefore, he will not be excused by his nonperformance. “Where a debt has arisen, liability will not be excused because, without fault of the creditor and due to happenings beyond his control, the time for payment, as fixed by the contract, can never arrive. Restatement, Contracts, § 301; Williston, Contracts, § 799; Goldfarb v. Cohen, 92 Conn. 277, 102 A. 649 [1917].” Richard v. Falleti, 13 N.J. Super. 534, 536, 81 A.2d 17 (1951). The present case, “like virtually every case involving discharge from an obligation to perform, concerns the issue of which party bears the loss resulting from an event that renders performance by one party uneconomical. See R. Posner, Economic Analysis of Law (3d Ed. 1986) pp. 93-94; R. Posner & A. Rosenfield, ‘Impossibility and Related Doctrines in Contract Law: An Economic Analysis,’ 6 J. Legal Stud. 83, 86-87 (1977). ‘Determining whether the non-occurrence of a particular event was or was not a basic assumption involves a judgment as to which party assumed the risk of its occurrence .... In making such determinations, a court will look at all circumstances, including the terms of the contract.’ 2 Restatement (Second), Contracts, c. 11, introductory note. ‘Since impossibility and related doctrines are devices for shifting risk in accordance with the parties’ presumed intentions, which are to minimize the costs of contract performance, one of which is the disutility created by risk, they have no place when the contract explicitly assigns a particular risk to one party or the other.’ Northern Indiana Public Service Co. v. Carbon County Coal Co., 799 F.2d 265, 278 (7th Cir. 1986); see also Wasserman Theatrical Enterprise, Inc. v. Harris, 137 Conn. 371, 374-75, 77 A.2d 329 (1950).” Dills v. Enfield, supra, 210 Conn. 720. Viewing the contract as a whole, we conclude that the clause “subject to payment with all outstanding payments to be paid in full at time of financing” is not a condition precedent but a date of payment set by the defendant.

Because financing was never obtained by the defendant, the time of payment should have been within a reasonable time. When the terms of a contract’s time of performance are indefinite, Corbin states: “The result generally reached is that the time is neither unlimited nor discretionary. Acceptance must be within a ‘reasonable time’ and the promised performance must be rendered within a ‘reasonable time.’ ” 1 A. Corbin, Contracts (Rev. Ed. 1993) § 4.2, p. 549. In addition, we also look to the Uniform Commercial Code (UCC) by analogy concerning a date of payment issue. We look to General Statutes § 42a-2-309 (1), which provides: “The time for shipment or delivery or any other action under a contract if not provided in this article or agreed upon shall be a reasonable time.” This section of the UCC by analogy supports the contention that when an act is in the control of an obligor, and the obligor fails to act, payment should take place within a reasonable time.

Therefore, we conclude that the contract and its amendments are not ambiguous and the presence of the clause “subject to payment with all outstanding payments to be paid in full at time of financing” was not a condition that excused the defendant from performance, but was the agreed upon time of payment. Further, since this event never occurred, payment should have been made by the defendant within a reasonable time.

The judgment is reversed and the case is remanded for a new trial.

In this opinion HENNESSY, J, concurred.

HEIMAN, J.,

dissenting. The majority concludes that the contract and its amendments are not ambiguous, and the clause at issue was not a condition precedent, but rather an agreed upon time of payment. Thus, the majority concludes that payment should have been made by the defendant at a reasonable time. Accordingly, it reverses the judgment of the trial court and remands the case for a new trial. I believe that the result reached by the majority is incorrect, and, thus, I dissent.

In reaching its decision, the majority first concludes that the contract and its amendments are unambiguous, and thus the determination of what the parties intended by their contractual commitments is a question of law and subject to plenary review. The majority proceeds to substitute its interpretation of the contract and its amendments for the trial court’s interpretation, concluding that the handwritten clause at issue is not a condition precedent, but rather an agreed upon time of payment. I disagree.

Certain facts must be recited in order to make the issue clear. On July 10, 1989, the defendant signed and accepted a proposal submitted by the plaintiff “for engineering and technical services required to prepare a site plan and applications for development of proposed self storage and business services at the Nutec Property on Route 85 in Amston.” The parties executed an amendment to their initial agreement, that was signed by the plaintiff on July 6, 1989, and by the defendant on July 10, 1989.

Following the execution of the original agreement and its accompanying amendment, the plaintiff sent a letter to the defendant, dated February 8, 1990. That letter stated: “In our proposal dated June 16, 1989, we suggested a budget of $2,000 for the application preparation and meeting attendance .... Meetings with the abutters to your project and design changes due to Town Staff and DOT comments were not included in this budget. Because of this increase in scope, we suggest the budget for this item be increased to $8,000. Kindly sign and return one copy to this office.”

The defendant added a handwritten clause to the lower portion of the letter. That clause stated: “Subject to payment with all outstanding payments to be paid in full at time of financing of project.” The handwritten clause was initialed by both the plaintiff and the defendant. The defendant signed and dated this letter on August 2, 1990.

In a trial to the court, the plaintiffs head engineer, the defendant, and James Malloy, the real estate broker who sold the property at issue to the defendant, offered the following testimony. The plaintiffs head engineer, Michael Turner, had initially assured the defendant that, while there were no guarantees, his firm had much experience with the local zoning and planning commissions and he thought that there should be no problem in getting the construction project approved. Turner specifically told the defendant that he need not hire an attorney to get the project approved because Turner’s firm had plenty of expertise in this area.

Subsequent to the mailing of the February 8, 1990 letter, the parties met on August 2,1990. At this meeting, Turner explained that getting the project approved was costing the plaintiff much more time, energy and money than it originally anticipated, and thus it required $8000 for this portion of its services, rather than the original $2000. The defendant became upset and explained that his financing for the project by Glastonbury Bank and Trust was contingent upon the plaintiffs getting the project finally approved by the necessary commissions. Both the defendant and Malloy testified that the defendant then communicated to Turner that he would pay the plaintiff the outstanding payments under the contract only if and when the financing was approved. Turner testified that he understood the defendant’s statements to be an assurance that the defendant would pay the plaintiff as soon as he obtained financing. The defendant then added the handwritten provision to the bottom of the letter dated February 8, 1990, and both parties initialed it. At the conclusion of the trial, the trial court found for the defendant on his third special defense and rendered judgment in favor of the defendant on the complaint.

I believe that the handwritten clause found on the lower portion of the February 8, 1990 letter is neither crystal clear nor unambiguous. “ ‘Absent a statutory warranty or definitive contract language, the trial court’s interpretation of a contract, being a determination of the parties’ intent, is a question of fact that is subject to reversal on appeal only if it is clearly erroneous.’ ” 24 Leggett Street Ltd. Partnership v. Beacon Industries, Inc., 239 Conn. 284, 295, 685 A.2d 305 (1996). “We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. ” Middletown Commercial Associates Ltd. Partnership v. Middletown, 42 Conn. App. 426, 437, 680 A.2d 1350, cert. denied, 239 Conn. 939, 684 A.2d 711 (1996). Rather, the trial court’s conclusion must stand “unless it is one that a trier [of fact] could not reasonably reach.” Foley v. Huntington Co., 42 Conn. App. 712, 731, 682 A.2d 1026, cert. denied, 239 Conn. 931, 683 A.2d 397 (1996). Therefore, as I believe that the handwritten provision at issue was ambiguous, its interpretation is a question of fact, reversible only if the trial court could not reasonably have arrived at the conclusion it did.

The trial court found that the handwritten provision at issue constituted a condition precedent that made the defendant’s payments to the plaintiff contingent upon the project’s being financed. The trial court further found that because the project was never financed, the defendant’s duty to pay never came into existence. On the basis of those determinations, the trial court found for the defendant on his third special defense and rendered judgment in favor of the defendant on the complaint.

“A condition precedent is a fact or event which the parties intend must exist or take place before there is a right to performance. ... A condition is distinguished from a promise in that it creates no right or duty in and of itself but is merely a limiting or modifying factor. ... If the condition is not fulfilled, the right to enforce the contract does not come into existence. . . . Whether a provision in a contract is a condition the nonfulfilment of which excuses performance depends upon the intent of the parties, to be ascertained from a fair and reasonable construction of the language used in the light of all the surrounding circumstances when they executed the contract.” (Citations omitted.) Lach v. Cahill, 138 Conn. 418, 421, 85 A.2d 481 (1951); see also Sicaras v. Hartford, 44 Conn. App. 771, 780, 692 A.2d 1290 (1997); J. Calamari & J. Perillo, Contracts (3d Ed. 1987) § 11-5, pp. 439-40.

“[T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract.” (Internal quotation marks omitted.) 24 Leggett Street Ltd. Partnership v. Beacon Industries, Inc., supra, 239 Conn. 295. The New World Dictionary defines “subject to” as “contingent or conditional upon,” while Black’s Law Dictionary defines “subject to” as “provided that.” New World Dictionary (2d Ed. 1974); Black’s Law Dictionary (6th Ed. 1990).

Moreover, the circumstances surrounding the execution of the contract and its amendments, as evidenced by a close examination of the record and transcripts, further support the reasonableness of the trial court’s determination. The plaintiffs head engineer, Turner, initially advised the defendant that obtaining all of the necessary local commission approvals for the project should not be a problem. At a meeting on August 2, 1990, Turner explained to the defendant that his firm was having trouble acquiring the requisite commission approvals, and would need a lot more money in order to get the project approved. The defendant became upset, explained to Turner that the financing for the project was contingent upon these approvals, and further stated that he would make all outstanding payments to the plaintiff only when he obtained financing. The defendant handwrote the provision at the bottom of the February 8, 1990 letter, and Turner initialed it.

Furthermore, in the context of a large development project, a developer’s conditioning his payment to an engineering company on the obtainment of financing for the project is a longstanding customary practice in the construction industry. See, e.g., Douglas v. Nowakowski, 141 Conn. 438, 440, 106 A.2d 468 (1954).

Therefore, I believe that the trial court’s determination that the handwritten provision constituted an unfulfilled condition precedent that excused the defendant’s performance was reasonable and, thus, should be affirmed.

Next, the majority, relying on a New Jersey case, an inapplicable Uniform Commercial Code section, and Dills v. Enfield, 210 Conn. 705, 720, 557 A.2d 517 (1989), concludes that because the obtaining of financing for the project was an event within the sole control of the defendant, the nonoccurrence of this event should not excuse his performance under the contract and the defendant should have paid the plaintiff within a reasonable time. I disagree.

The problem with the majority’s syllogism is that the act of obtaining financing for the project was not within the sole control of the defendant. Glastonbury Bank and Trust’s financing of the project was contingent on the approval of the project by the Hebron inland wetlands commission and the Hebron planning and zoning commission. The plaintiff specifically contracted, in its original contract with the defendant, to take all actions necessary to obtain the required commission approvals, including preparation and submission of all plans and applications to the two commissions, as well as attendance at all commission meetings and public hearings. The plaintiff was aware that the financing of the project was contingent on the plaintiffs obtaining the two commissions’ approval of the project.

Furthermore, the majority has failed to cite any precedent binding on this court that supports their position. The majority’s reliance on Dills v. Enfield, supra, 210 Conn. 705, is misplaced because Dills is distinguishable both factually and legally from this case. In Dills, the developer attempted to invoke a termination clause that allowed the developer to withdraw and to reclaim his deposit if, after the preparation of construction plans satisfactory to the agency, the developer could not obtain the necessary mortgage financing. Id., 707-708. The developer claimed that his inability to obtain mortgage financing for the project represented a supervening impracticability that discharged his duty to provide construction plans by a certain date. Id., 709-10. The attorney trial referee agreed with the developer, but the trial court rejected the referee’s recommendation and instead held that the doctrine of impracticability and impossibility was not relevant to the case. Id., 710-11. Our Supreme Court agreed with the trial court that the doctrine of impracticability was inapplicable in Dills, and held instead that, “ ‘[i]f an event is foreseeable, a party who makes an unqualified promise to perform necessarily assumes an obligation to perform, even if the occurrence of the event makes performance impracticable.’ ” Id., 720.

Here, the defendant argued that his duty to pay all outstanding payments never came into existence because of the unfulfilled condition precedent. Neither party argues anywhere that the defendant’s duty to pay the plaintiff all outstanding payments was discharged under the doctrine of impracticability. The defendant in this case is arguing contractual interpretation, the enforcement of a bargained for contractual provision, not the application of the rarely used and exceptional doctrine of impracticability. Id., 717.

Moreover, in Dills, unlike here, the developer’s inability to obtain financing, the event on which the developer relied to excuse his performance, was an event that the parties foresaw at the time of the execution of the contract, an event solely within the control of the developer, as well as a risk that the developer had explicitly contracted to bear. Id., 719-20. “Section 702 (b) of the contract allowed the developer to withdraw and to reclaim his deposit if, after the preparation of construction plans satisfactoiy to the agency, the developer could not obtain the necessary mortgage financing.” Id., 708. This section of the contract “demonstrates that the parties expressly contemplated that [the developer] might encounter financial difficulties.” Id., 719-20. Nonetheless, despite this foreseeable problem, the developer specifically contracted to do everything necessary to obtain the mortgage financing. Id., 707-708 n.2, 719-20.

In the present case, the inability to obtain project financing, the event that excused the defendant’s performance, was not foreseen by either party at the time of contracting, and thus was not a risk bargained for at the time of contracting, nor a risk explicitly assigned to one party by the contract. Further, here, the inability to obtain financing was not an event within the sole control of the party seeking excuse from his performance.

The majority further relies on A. J. Wolfe Co. v. Baltimore Contractors, Inc., 355 Mass. 361, 364, 244 N.E.2d 717 (1969). First, a Massachusetts case is obviously not binding on this court. Second, the provision at issue in A. J. Wolfe Co., contains no contingency language such as the “subject to” language found in the handwritten provision at issue in this case. Id. Instead, the disputed provision in A. J. Wolfe Co. clearly establishes a certain agreed upon time of payment. Id.

Because the handwritten provision on the February 8,1990 letter was not so clear as to render its interpretation a matter of law, its interpretation is a question of fact, subject to the clearly erroneous standard of review. Further, the trial court’s determination that the handwritten provision constituted an unfulfilled condition precedent that excused the defendant’s performance was a reasonable determination and was not clearly erroneous. Thus, I conclude that the trial court properly found for the defendant on his third special defense and properly rendered judgment in favor of the defendant on the complaint. I would affirm the judgment of the trial court.

       Part one of the proposal stated in its entirety: “1. We will prepare a Class A-2 survey and related title search to indicate property lines, deed lines, lines of occupation, easements and encroachments affecting the use of the property. We understand you intend to recombine the parcels into one larger 14+ acre parcel. 2. We will retain a certified soil scientist to field locate limits of wetlands and identify soil types. This subcontractor will invoice you directly. 3. We will prepare a topographic map of the site at 40 scale with 2’ contour interval. We will also indicate limits of wetlands. 4. With the concurrence of the Town Sanitarian, we will review existing as built septic system information and conduct soil test program to evaluate the capacity of the existing septic system. We will require the use of a back hoe and operator, who will act as a subcontractor and invoice you directly. 5. We will coordinate with State D.O.T. and the Hebron Town Planner to review preliminary layouts for egress to Route 85.6. We will evaluate physical conditions of the existing buildings and make recommendations for rehabilitation and/or demolition. We will coordinate with representatives of self storage units supplier for optimum size/quantity distribution. 7. We will prepare a final site plan to indicate buildings, grading, parking areas, drainage, utilities, lighting, landscaping, and sediment and erosion control. 8. We will prepare ‘preliminary’ architectural plans to show floor areas for parking calculations, and typical building elevations including facade improvements for planning purposes. 9. We will prepare storm drainage computations, engineers cost estimate for bonding of public improvements, Inland Wetland Applications and Site Plan Review Applications. 10. Preparation and submission of plans and applications to and attendance of Inland Wetland Commission and Planning and Zoning Commission meetings and public hearings.”

       Part three of the proposal states in pertinent part: “1. All work described in Section I, Basic Scope of Services, Design Services—Items 1-9, will be completed for the Lump Sum Fee of $24,000 excluding subcontractor such as soil scientist and backhoe and operator who will invoice you directly for those services. 2. All work described in Section I, Basic Scope of Services, Attendance at meetings—Item 10, will be completed on a Per Diem Basis according to our current Hourly Rate Schedule. We suggest a budget of $2,000 for this work, however this budget may change as the scope is defined. 3. Additional Services as outlined under Section II, may be completed on a lump sum or per diem basis depending upon whether scope of work can be defined. Fees and budgets will be negotiated at the time such services are requested. 4. A retainer of $3,000 will be required prior to commencement of work. This retainer will be held and applied to your final invoice. . . .”

       The defendant did not prevail on his counterclaim at trial.

       The clause “subject to payment with all outstanding payments to be paid in full at time of financing” can be compared with a “pay when paid” clause used by contractors in the construction industry. These clauses, which appear in construction subcontracts, generally state that the subcontractor is to be paid after the contractor receives its payment. See Blakeslee Arpaia Chapman, Inc. v. El Constructors, Inc., 239 Conn. 708, 718, 682 A.2d 506 (1997). The Massachusetts Supreme Court has held that a “pay when paid” clause stating that “payment [to the subcontractor] will be made on monthly requisitions for progress payments ‘within 10 days after [the owners’] payment of such monthly progress payments . . . [has] been received by’ [the general contractor]” was “merely a setting of a time of payment and not as creating a condition precedent to payment.” A. J. Wolfe Co. v. Baltimore Contractors, Inc., 355 Mass. 361, 365, 244 N.E.2d 717 (1969). That court went on to hold that the aforementioned clause merely sets the time for payment, and “should be viewed only as postponing payment by the general contractor for a reasonable time. . . Id., 365-66.

       In court on September 5, 1995, the trial court, Levine, J., ruled, “I find that there was an ambiguity in the initial contract, exhibit 2, about whether the $2000 was an estimate or a maximum cap, and when the plaintiff sent the defendant exhibit 4, asking that the defendant agree to increase the budget for item 10 in exhibit 2, from $2000 to $8000, that that is a very strong indication, from which I draw the inference, that the intent of the parties was that the $2000 would be a cap and not merely an estimate. And therefore, the increase in that cap from $2000 to $8000 constituted a consideration flowing from the defendant to the plaintiff, which supported the other provisions contained in exhibit 4, in particular supported the newly negotiated provision that’s written in by hand, which says, ‘Subject to payment, with all outstanding payments to be paid in full at time of financing of project,’ which I find to mean that .... [wjhatever money became due after the execution of exhibit 4, and whatever money was due at the time of execution of exhibit 4, would all be contingent. The obligation to pay it would be contingent upon the project being financed, and the project never having been financed, then the obligation having been contingent is dissolved, and so I find for the defendant on the third special defense, and as a result, I enter judgment in favor of the defendant on the complaint, and in favor of the plaintiff on the counterclaim and no costs to either party.”

       The defendant’s third special defense provides: “Said agreement as amended August 2, 1990 . . . conditioned any obligation on the part of the Defendant to make payments to the Plaintiff on the obtaining of financing for the project. Financing was never obtainable because the Plaintiff was unsuccessful in obtaining approval for the project.”

       Item 10 of the original contract, dated June 16, 1989, provides as part of the plaintiffs services to the defendant, “Preparation and submission of plans and applications to and attendance of Inland Wetland Commission and Planning and Zoning Commission meetings and public hearings.”


source: Caselaw Access Project

author: SHEA, J.

license: Public Domain

text:
    EDWIN BAUMER ET AL. v. ZONING COMMISSION OF THE BOROUGH OF NEWTOWN ET AL.
    (AC 16105)
    Landau, Schaller and Shea, Js.
    Argued March 5
    officially released July 15, 1997

      Randall J. Carreira, for the appellants (plaintiffs).

      Donald A. Mitchell, for the appellees (defendants).
   Opinion

SHEA, J.

In this appeal, the plaintiffs, Edwin Baumer and Jean Baumer, seek to reverse the decision of the defendant zoning commission of the borough of New-town (commission) approving a site plan for an addition to the Cyrenius H. Booth Library. The plaintiffs claim to be aggrieved pursuant to General Statutes § 8-8 (a) (l) by virtue of their ownership of land within 100 feet of the land on which the addition is to be constructed. The defendants, the commission and the trustees of the library, filed a motion in the trial court, however, to dismiss the action for lack of subject matter jurisdiction because of the failure to serve a copy of the complaint on the clerk for the borough of Newtown within the fifteen days allowed by § 8-8 (b). The court granted that motion, and the plaintiffs petitioned for certification of the appeal. After this court granted certification, the plaintiffs filed their appeal from the dismissal of the complaint by the trial court. In their briefs, they raise various issues concerning the requirements of § 8-8 (e) and (f) for service of a zoning appeal and also the provisions of § 8-8 (p) and (q) relating to the effect of a failure to comply strictly with those service requirements on the jurisdiction of the Superior Court over a zoning appeal.

After the parties had argued the appeal and while the case was under consideration, the defendants filed a motion to dismiss the appeal to this court on the ground that the issues had become moot as a result of the approval of a revised site plan by the commission. The motion alleges that in January, 1997, the defendant library trustees submitted for approval of the defendant commission a revised site plan for the same parcel involved in the pending appeal. The revised plan incorporated all of the items previously approved by the commission’s June 16, 1995 decision, which is the subject of the pending appeal, and added some others. The commission approved the revised plan on February 11, 1997. No appeal was taken from that decision. Because the same development activities approved in the 1995 decision of the commission, as well as some additional ones, have now been sanctioned by the 1997 decision of the commission, which has now become final, the defendants have moved to dismiss the pending appeal for mootness.

The plaintiffs do not dispute that the 1997 approval of the revised site plan has become final because of the absence of an appeal therefrom. They concede that the revised site plan is substantially similar to the original site plan, which is the subject of this appeal. They admit that the only changes in the revised plan are “additional plantings and a designation of certain areas as ‘future parking’ rather than current parking areas, the relocation of a ‘chiller’ with appropriate screening, and the placement of a retaining wall required by the building department.”

In Gagnon v. Planning Commission, 24 Conn. App. 413, 414-15, 588 A.2d 1385 (1991), this court affirmed the trial court’s dismissal as moot of an appeal from the approval of a subdivision plan after the planning commission had approved a resubdivision of the same property and no appeal from that determination was taken. Our Supreme Court agreed with the holding of this court that approval of the resubdivision plan controlled the rights to develop the parcel and that the court was not required to take up the merits of the claim that the resubdivision was the product of a host of procedural irregularities. Gagnon v. Planning Commission, 222 Conn. 294, 298, 608 A.2d 1181 (1992). Although the present case involves a revised site plan rather than a resubdivision plan, we perceive no significant distinction on that ground and regard Gagnon as a controlling precedent.

“Notwithstanding any similarities between the original subdivision application and the resubdivision application, approval of the resubdivision application controls the applicant’s rights to develop the parcel. The plaintiffs appeal of the approval of the original subdivision application cannot substitute for a timely appeal from the approval of the resubdivision application. Because there was no appeal of the approval of the resubdivision application as required . . . there is no actual and existing controversy regarding its approval. The plaintiff has not and cannot now challenge the power of the commission to act on the resubdivision application on the ground of a lack of statutory authorization. . . . The propriety, correctness or legality of that approval cannot be attacked directly or collaterally at this point; since it is not before us, we will not speculate as to its validity. We will not render judicial opinions on points of law absent an actual and existing controversy.. . .” (Citations omitted.) Gagnon v. Planning Commission, supra, 24 Conn. App. 417-18.

In their brief opposing dismissal of their appeal, the plaintiffs argue that the issues are not moot because they have a potential claim for a violation of their constitutional rights in the event that it should be determined that the commission acted arbitrarily or with a discriminatory intent in approving the original site plan. No such issues, however, are raised in the briefs filed in this appeal, which concerns only the question of whether service of the complaint in the action was defective and the effect of such a defect on the jurisdiction of the court.

The plaintiffs also contend that this appeal falls within the doctrine that an otherwise moot case is justiciable if it presents an issue of public importance that is capable of repetition but likely to evade appellate review. See Loisel v. Rowe, 233 Conn. 370, 382, 387-88, 660 A.2d 323 (1995). One essential criterion for application of that doctrine is that the issue in the pending case “by its very nature must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising [that issue] will become moot before appellate litigation can be concluded.” Id., 382. The procedural issues raised in this appeal, which were the basis for the dismissal of the action in the trial court, involve the failure to serve the clerk of a borough within the time prescribed by statute in an appeal from the action of the zoning commission for the borough. Such issues are not ordinarily of brief duration likely to evade appellate review. In the overwhelming majority of zoning appeals on the docket of an appellate court, issues involving the propriety of service and the effect of deviations from the time and manner of service prescribed by statute are finally determined by that court. See Fong v. Planning & Zoning Board of Appeals, 212 Conn. 628, 635, 563 A.2d 293 (1989); Spicer v. Zoning Commission, 212 Conn. 375, 378, 562 A.2d 21 (1989); Andrew Ansaldi Co. v. Planning & Zoning Commission, 207 Conn. 67, 70, 540 A.2d 59 (1988); Simko v. Zoning Board of Appeals, 206 Conn. 374, 376, 538 A.2d 202 (1988); Simko v. Zoning Board of Appeals, 205 Conn. 413, 417-19, 533 A.2d 879 (1987). The frequency of those determinations is a significant indication that the issues raised in this appeal will probably arise again and will not become moot prior to the judgment of an appellate court. The circumstances that have rendered this appeal moot do not occur frequently.

The appeal is dismissed.

In this opinion the other judges concurred.

       General Statutes § 8-8 (a) (1) provides in relevant part: “ ‘Aggrieved person’ means a person aggrieved by a decision of a board and includes any officer, department, board or bureau of the municipality charged with enforcement of any order, requirement or decision of the board. In the case of a decision by a zoning commission, planning commission, combined planning and zoning commission or zoning board of appeals, ‘aggrieved person’ includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board.”

       General Statutes § 8-8 (b) provides: “Except as provided in subsections (c) and (d) of this section and sections 7-147 and 7-147Í, any person aggrieved by any decision of a board may take an appeal to the superior court for the judicial district in which the municipality is located. The appeal shall be commenced by service of process in accordance with subsections (e) and (f) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes. The appeal shall be returned to court in the same manner and within the same period of time as prescribed for civil actions brought to that court.”

       On the basis of that site plan approval, the defendant library trustees commenced the cons!ruction activities that are claimed to have damaged the plaintiffs.


author: HENNESSY, J.

text:
    STATE OF CONNECTICUT v. CHARLES MCCLENDON
    (AC 15529)
    O’Connell, Foti and Hennessy, Js.

      Argued March 17
    officially released July 15, 1997

      Elizabeth M. Inkster, assistant public defender, with whom was Joseph G. Bruckmann, public defender, for the appellant (defendant).

      Christopher Godialis, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and John H. Malone, assistant state’s attorney, for the appellee (state).
   Opinion

HENNESSY, J.

The defendant, Charles McClendon, was convicted after a jury trial of two counts of felony murder in violation of General Statutes § 53a-54c, attempt to commit robbeiy in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-134 (a) (2) and (4), and two counts of robbeiy in the first degree in violation of General Statutes § 53a-134 (a) (1), (2) and (4). On appeal, the defendant claims that the trial court improperly (1) denied Iris motions to suppress identification, (2) excluded the testimony of a defense expert on the subject of eyewitness identification, (3) suppressed a certain police report, (4) admitted evidence of other crimes and (5) concluded that the state presented sufficient evidence of the identity of the defendant as the perpetrator of the crimes for which he was found guilty. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At approximately 4:40 p.m. on August 11, 1987, Darlene Hale was at her desk at C & K Moving Company (C & K) at 211 Walnut Street in Hartford. A man came in and requested a job application. He was five feet six or seven inches tall and weighed between 150 and 165 pounds. He was black and had short dark hair, a moustache and a pockmarked face. He was wearing gold-rimmed tinted glasses and a blue shirt with the sleeves rolled up. She handed the man an application. At that time, Dennis Shortell, the owner of the company, asked Hale to place a telephone call. After she placed the call, a man came up behind her, put a silver and black gun to her head and demanded money. Hale noticed that the robber had the same rolled up blue shirt sleeves and voice as the man to whom she had given the application. As Hale emptied her wallet into the robber’s bag, Grayland Cannon, another employee of the company, walked in. The robber demanded money from Cannon and, when Cannon told the robber that he did not have any, the robber shot him. The robber then went to Shortell’s office, demanded money, shot Shortell and fled. Both Cannon and Shortell died of their wounds.

At around 4:45 p.m. the same day, from his residence in the vicinity of C & K, Hector Colon heard “three or four” gunshots and subsequently saw a black male “walking real fast . . . looking backwards.” He was wearing a blue shirt with “no sleeves” and carrying a paper bag under his arm. Around the same time, also in the vicinity of C & K, Stephen Tinker observed a man wearing gold-rimmed tinted glasses and a blue and white striped shirt. Shirley Lassiter also saw a man wearing a “blue short sleeve shirt” and walking fast. Both Tinker and Lassiter later identified the man as the defendant from an array of photographs and also identified him at trial.

On August 13,1987, the police executed a search and seizure warrant on the defendant’s residence at 18-20 Edgewood Street in Hartford. In the apartment, the police found a twenty-two caliber handgun with a silver cylinder and white plastic grips. James McDonald, a forensic firearms examiner, testified at trial that in his opinion “all three of those [bullets that killed Shortell and Canon and injured a victim in another uncharged robbery] were fired from [the gun found in the defendant’s apartment] and no other revolver.” On September 15, 1989, Hale viewed a lineup composed of six black males. She also heard the men speak. From the lineup and the voice sample, Hale identified the defendant as the gunman. The defendant was subsequently charged with and found guilty of the C & K robberies and murders. This appeal followed.

I

The defendant first claims that the trial court improperly denied his motions to suppress Hale’s identification of him on two grounds: (1) there was no probable cause to issue a search and seizure warrant to compel his placement in a lineup; and (2) the lineup was unnecessarily suggestive resulting in an unreliable identification.

The following additional facts are necessary for the resolution of this issue. In September, 1989, two years after the incident at the C & K office, the defendant was incarcerated on unrelated robbery charges. During those two years, Hale was shown, on several occasions, arrays that included a photograph of the defendant, but she could not identify the defendant as the man in gold-rimmed tinted glasses who had asked for the job application. In 1989, Hale was contacted by Detective Ronald Faggaini, of the Hartford police who had recently taken over the investigation. Hale told him that she could not make a positive identification of the shooter without seeing the person wearing eyeglasses. She also told a state’s attorney that she might be able to recognize the robber’s voice if she heard it again. The police secured a search and seizure warrant authorizing the defendant to be placed in a lineup and to give a voice sample. After viewing the lineup and listening to the voice samples, Hale positively identified the defendant as the robber.

A

The defendant argues that the warrant authorizing the lineup and voice sample violates article first, § 9, of the Connecticut constitution. He claims that the lineup was not “clearly warranted by law” because the warrant failed to establish probable cause. The defendant avers that “[t]he ‘nexus’ required between the items to be seized [the defendant’s person and voice sample] and the criminal behavior was clearly not established under the facts presented here.” State v. Acquin, 177 Conn. 352, 355, 416 A.2d 1209 (1979). We disagree.

The affidavit, accompanying the request for the warrant contained the following information. Hale gave a detailed description of the person to whom she had given an employment application minutes before the shootings and of the handgun he used. She further assisted the police in preparing a composite drawing of the perpetrator. This composite was shown to the victim of an unrelated robbery at Spillane’s Service Station who stated that the person who had robbed her resembled the composite drawing. Another witness to the Spillane’s Service Station robbery identified the defendant from an array of photographs as being the perpetrator. Hale was shown photograph arrays that included a picture of the defendant but was unable to identify the person to whom she gave the employment application and who held her at gunpoint. Hale stated that she could not make the identification without seeing the person wearing eyeglasses. Two years later, while talking to the Llartford county state’s attorney, Hale stated that if she heard the same voice again she might be able to identify the speaker as the shooter. The affidavit concluded by stating that a lineup viewing and a voice sample of the defendant heard by Hale may produce a positive identification. This affidavit was presented to a judge of the Superior Court. The court found that, based on the facts contained in the affidavit, probable cause existed for the transportation of the defendant from his place of incarceration for purposes of a lineup and voice sample.

“Probable cause, broadly defined, comprises such facts as would reasonably persuade an impartial and reasonable mind not merely to suspect or conjecture, but to believe that criminal activity has occurred. . . . Probable cause to search exists if: (1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity; and (2) there is probable cause to believe that the items named will be found in the place to be searched.” (Citations omitted; internal quotation marks omitted.) State v. Barton, 219 Conn. 529, 548, 594 A.2d 917 (1991).

“In determining whether the warrant was based upon probable cause, we may consider only the information that was actually before the issuing judge at the time he or she signed the warrant, and the reasonable inferences to be drawn therefrom. . . . We view that information, however, in the light most favorable to the issuing judge’s determination of probable cause, and ‘ [i]n a doubtful or marginal case . . . our constitutional preference for a judicial determination of probable cause leads us to afford deference to the magistrate’s determination.’ ” (Citation omitted.) State v. Duntz, 223 Conn. 207, 216, 613 A.2d 224 (1992).

In this case, we conclude that the affidavit presented a substantial factual basis to support the court’s conclusion that probable cause for the lineup and the voice sample existed. The police officer affiants attested that Hale gave a detailed description of the person who requested the employment application and that she had the opportunity to see that person clearly. On the bases of Hale’s description of the gunman and the identification of the composite as the defendant by another robbery victim, and justifying Hale’s inability to identify the gunman from photograph arrays because the photographs did not show the potential perpetrators wearing eyeglasses, the issuing judge could reasonably have inferred that probable cause existed.

B

The defendant also claims that the identification procedure was unnecessarily suggestive and unreliable under the totality of circumstances. He argues that the lineup was invalid because Hale was shown several photograph arrays containing the defendant’s photograph over the prior two years and, therefore, the defendant was the only person in the lineup whom Hale had seen before. He further maintains that the identification was unreliable because at the time of the robbery, Hale was hysterical, and the identification did not take place until two years after the crime.

“A defendant who moves to suppress identification evidence bears the initial burden of proving that the identification resulted from an unconstitutional procedure.” (Internal quotation marks omitted.) State v. Hinton, 196 Conn. 289, 293, 493 A.2d 836 (1985). To succeed on the motion to suppress, “the defendant must prove (1) that the identification procedures were unnecessarily suggestive, and (2) that the resulting identification was not reliable in the totality of the circumstances.” State v. Perez, 198 Conn. 68, 73, 502 A.2d 368 (1985); State v. Parker, 197 Conn. 595, 598, 500 A.2d 551 (1985); State v. Hinton, supra, 292-93.

We are not persuaded by the defendant’s argument that the identification procedure was unnecessarily suggestive because he was the only person in the lineup whom Hale had seen before. “The recurrent use of a defendant’s photograph in successive arrays ... is not presumptively suggestive.” State v. Williamson, 206 Conn. 685, 691, 539 A.2d 561 (1988). Although Hale was shown photographs of the defendant in arrays on several occasions, she had never identified the defendant from those arrays. Additionally, Hale maintained that she had closely observed the defendant when he requested an employment application and heard him speak several times. She could not, however, identify him without seeing a lineup composed of persons wearing glasses and without hearing his voice. The trial court, therefore, could reasonably conclude that the identification procedure was not unnecessarily suggestive.

The defendant next contends that, even if the procedure was not unnecessarily suggestive, the identification was unreliable under the totality of circumstances. “The constitutional test for reliability requires the trial court to consider ‘the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.’ Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977); State v. Theriault, [182 Conn. 366, 373-74, 438 A.2d 432 (1980)].” State v. Hinton, supra, 196 Conn. 295-96.

In this case, Hale had ample opportunity to see and to hear the robber. She had a high degree of attention and was face-to-face with the defendant, and her description of the perpetrator at the time of the incident was quite detailed. Hale also demonstrated certainty in identifying the defendant at the lineup. Furthermore, we cannot assume that the two year period between the identification and Hale’s viewing of the defendant was so long as to render her identification unreliable. Under these circumstances, the trial court properly concluded that the identification procedure was not so suggestive and unreliable as to violate the defendant’s right to due process.

II

In the defendant’s second claim, he argues that the trial court abused its discretion in excluding the testimony of Michael Leippe on the subject of eyewitness identification. The defendant contends that here, where the reliability of the memory of the eyewitness was critical, the testimony of Leippe, an expert on the subject of eyewitness recall, should have been allowed to aid the jury in gauging the reliability of an identification. The trial court ruled that the testimony would serve only to confuse the juiy and would not help it to consider the issues. The court also stated that “[t]he proffered testimony in the offer of proof is essentially general principles.”

“The trial court has wide discretion in ruling on the qualification of expert witnesses and the admissibility of their opinions. . . . The court’s decision ‘is not to be disturbed unless [its] discretion has been abused, or the error is clear and involves a misconception of the law. Going v. Pagani, 172 Conn. 29, 35, 372 A.2d 516 (1976).’ . . . Generally, expert testimony is admissible if (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or juiy in considering the issues. . . . Almost uniformly, state and federal courts have upheld the trial court’s exercise of discretion to exclude [expert testimony on the reliability of eyewitness identifications], . . . Such testimony has been excluded on the grounds that the reliability of eyewitness identification is within the knowledge of jurors and expert testimony generally would not assist them in determining the question. . . . Such testimony is also disfavored because, as one court has stated, ‘it invades the province of the jury to determine what weight or effect it wishes to give to eyewitness testimony.’ ” (Citations omitted.) State v. Kemp, 199 Conn. 473, 476-77, 507 A.2d 1387 (1986).

Here, the trial court concluded that the proffered testimony was within the general knowledge of the jurors and that it would not aid them to resolve the issues at hand. Under the facts and circumstances of this case, the trial court did not abuse its discretion in excluding Leippe’s testimony.

III

A

In the defendant’s third claim, he argues that the state’s tardy disclosure of an exculpatory police report requires a new probable cause hearing and trial. The state contends that the defendant’s argument should be rejected because no evidence was suppressed and the evidence claimed to be suppressed would not have affected the outcome of the probable cause hearing or the trial. We agree with the state.

The report was prepared by Faggaini, who died one year after the probable cause hearing and two years before the trial. In the report, he wrote: “Ms. Hale stated since she didn’t see the culprit’s face at the time of the robbery/murder, she wouldn’t be able to make [an] identification. Ms. Hale stated it was [an] assumption on her part that the black male who entered minutes before was the one responsible. . . . Ms. Hale stated she is really unsure if she could identify the male who she gave [an] application to.” The trial court found the report to be exculpatory but ruled the prejudice to be minimal and gave the defense an opportunity to bring Hale back to court for further examination. Hale returned for questioning and denied having told Faggaini that she could not identify the person who committed the C & K robbery.

“This court has long held, on the basis of Brady v. Maryland, [373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)], and its progeny, that [s]ince the adversarial probable cause hearing [mandated by article first, § 8, of the Connecticut constitution as amended] . . . is an essential part of a defendant’s criminal prosecution, the constitutional obligation to disclose exculpatory material attaches at that time. . . . [I]n State v. Shannon, 212 Conn. 387, 406, 563 A.2d 646 [cert. denied, 493 U.S. 980, 110 S. Ct. 510, 107 L. Ed. 2d 512] (1989), we held that in order for this court to consider claims of nondisclosure of exculpatory material at a probable cause hearing required by our state constitution, the defendant must demonstrate: (1) that the prosecution suppressed evidence; (2) that the evidence was favorable to the defense; and (3) that it was material. State v. Milner, 206 Conn. 512, 539, 539 A.2d 80 (1988). We further held, in Shannon, that the materiality of such exculpatory evidence is to be determined by utilizing the test set forth in United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985). State v. Shannon, supra, 406-407. Under the Bagley test, non-disclosed exculpatory evidence will be considered material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. . . . State v. McPhail, 213 Conn. 161, 166-67, 567 A.2d 812 (1989).” (Citations omitted; internal quotation marks omitted.) State v. White, 229 Conn. 125, 134-35, 640 A.2d 572 (1994).

It is clear from the facts in this case that Hale’s statement contained in the Faggaini report was not made available to the defendant until after the probable cause hearing, but was available to the defendant before trial. It is also clear that Hale’s statement was favorable to the defense. The critical issue, therefore, is to determine if the nondisclosed evidence was material. We conclude that the evidence was not material because we are not persuaded that the outcome of the probable cause hearing would have been different had the Faggaini report been disclosed.

The facts in the Faggaini report are consistent with the facts set forth in the affidavit presented to the court in the search and seizure warrant. The affidavit stated in relevant part: “On May 18, 1989, Hartford Police Department Detective Ronald Faggaini spoke to Darlene Hale re identification. She informed him that she is really unsure if she could identify the male she gave the employment application to on August 11, 1987, before the murder occurred.” The defendant, therefore, already had information that would have allowed him to question Hale at the probable cause hearing on the reported conflict between her identification of the defendant in court and her inability to identify the defendant in her statements to the police. Furthermore, Hale had consistently stated before and during the trial that she had not seen the robber’s face during the robbery and shootings, but recognized the color of the shirt he was wearing and the way in which his shirt sleeve was rolled up as being the same as the man who requested a job application minutes before the robbery. On the basis of these facts, we conclude that the defendant failed to demonstrate that the Faggaini report was material.

B

The defendant further claims that the trial court improperly prohibited him from introducing the Faggaini report as a full exhibit under the residual or “catchall” exception to the hearsay rule. We disagree.

After his motion for a mistrial based on the state’s withholding the Faggaini report was denied, the defendant offered the report as a full exhibit under the residual exception to the hearsay rule. The trial court sustained the state’s objection to its admission on the ground that the report was “more likely misleading than accurate” and that “there is absolutely nothing of any special trustworthiness . . . with this undated report . . . .”

“Our standard of review regarding challenges to a trial court’s evidentiary rulings is that these rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. ... In reviewing claims that the trial court abused its discretion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only if it could not reasonably conclude as it did. . . . State v. Leonard, 31 Conn. App. 178, 190, 623 A.2d 1052, cert. granted, 226 Conn. 912, 628 A.2d 985 (1993), appeal withdrawn January 7, 1994.” (Internal quotation marks omitted.) State v. Rogers, 38 Conn. App. 777, 796, 664 A.2d 291 (1995), cert. denied, 235 Conn. 918, 665 A.2d 610 (1996).

“An out of court statement is hearsay when it is offered to establish the truth of the matters contained therein. ... As a general rule, hearsay evidence is not admissible unless it falls under one of several well established exceptions. . . . The purpose behind the hearsay rule is to effectuate the policy of requiring that testimony be given in open court, under oath, and subject to cross-examination. . . . The residual, or catch-all, exception to the hearsay rule allows a trial court to admit hearsay evidence not admissible under any of the established exceptions if: (1) there is a reasonable necessity for the admission of the statement, and (2) the statement is supported by the equivalent guarantees of reliability and trustworthiness essential to other evidence admitted under the traditional hearsay exceptions.” (Citations omitted; internal quotation marks omitted.) State v. Oquendo, 223 Conn. 635, 664, 613 A.2d 1300 (1992).

In this case, the defendant claims that the statement met the necessity requirement because Faggaini died before the trial and he was the sole source of the information contained in his report. The defendant also argues that the statement was rehable and trustworthy because it was an official police report filed by the lead investigator. We find these arguments to be meritless.

Although Faggaini indeed could not testily about the contents of his report, Hale, the hearsay declarant, was available and testified about her statement. The statements contained in the report were also fairly consistent with Hale’s testimony at trial and in the search and seizure affidavit. The hearsay statement, therefore, was not reasonably necessary.

The trial court also found that the hearsay was misleading because, in the context of the entire report, the statement does not mean what it appears to say. Although Faggaini reported that Hale could not identify the gunman, he also reported that Hale recognized the gunman’s rolled-up shirt sleeve and arm as that of the black male to whom she had given a job application minutes before. These statements are contradictory and render the report misleading and unreliable. We conclude that the trial court properly excluded the Faggaini report.

IV

We now address the defendant’s claim that the trial court improperly admitted evidence of other crimes. The defendant asserts that this evidence was highly inflammatory and that it was more probable than not that the admission of this evidence affected the outcome of the trial. We disagree.

The following additional facts are necessary for the resolution of this issue. On the morning of August 7, 1987, the defendant walked into the Smith-Worthington Saddlery Company (Smith-Worthington), located on Homestead Avenue in Hartford, and held up Clinton Hanks at gunpoint. Hanks gave him $4, and the defendant shot him in the thigh. The defendant also made two other people in the office lie on the floor while he took money from their wallets. Hanks identified the defendant as the assailant. The defendant entered a nolo contendere plea to that crime.

On August 7, 1987, at about 4 p.m., the defendant robbed Spillane’s Service Station on Walnut Street in Hartford. The defendant entered the establishment with a bag and a gun and told Cheryl Spillane and Armando Rodriguez to lie down on the floor. The defendant demanded money and had Rodriguez empty the cash register and his wallet. The defendant also demanded that the victims open the safe. When neither Spillane nor Rodriguez could open it, the defendant kicked Spillane in the chest and in the eye, warned them both to stay on the floor, and fled. Five days later, Spillane identified the person depicted in the Hale composite as the robber. Rodriguez subsequently identified the defendant as the assailant from a photograph array and made an in-court identification of the defendant. The defendant pleaded guilty to that robbery.

On the morning of August 13, 1987, the defendant robbed Wilmer Woolford at Billington Realty on Albany Avenue in Hartford. The defendant told Woolford that he had a gun and demanded his wallet and money. He made Woolford lie on the floor. The defendant then asked whether there was a safe or any cash in the office. When he could not find more money, the defendant left the premises. He was later arrested for that robbery and entered a guilty plea.

The trial court found that the defendant had committed those other crimes and that the methods used in carrying out the crimes were so similar as to constitute a signature or a common scheme of criminal activity. The court also noted that the evidence of the Spillane’s Service Station robbery was admissible to “explain . . . the composite,” and the evidence of the SmithWorthington and Spillane’s Service Station robberies was admissible to show that the defendant had access to the same gun used in the C & K robbery. Although the court found “significant” prejudice to the defendant in the admission of this evidence, it found the probative value of the evidence to be “very high. ” It also found that the prejudice could be cured by cautionary instructions that forbade the jury to use the evidence to infer bad character or guilt by accumulation.

“As a general rule, evidence of a defendant’s prior crimes or misconduct is not admissible. . . . We have, however, recognized exceptions to the general rule if the purpose for which the evidence is offered is to prove intent, identity, malice, motive, a system of criminal activity or the elements of a crime. . . . [Prior misconduct] evidence may also be used to corroborate crucial prosecution testimony. . . . Moreover, we have held that such evidence may be used to complete the story of the crime on trial by placing it in the context of nearby and nearly contemporaneous happenings. . . .

“To determine whether evidence of prior misconduct falls within an exception to the general rule prohibiting its admission, we have adopted a two-pronged analysis. . . . First, the evidence must be relevant ... to at least one of the . . . exceptions. Second, the probative value of such evidence must outweigh the prejudicial effect of the other crime evidence.” (Citations omitted; internal quotation marks omitted.) Stale v. Cooper, 227 Conn. 417, 424-25, 630 A.2d 1043 (1993). “[Ejvidence is relevant if it has a tendency to establish the existence of a material fact. ...” (Citation omitted; internal quotation marks omitted.) State v. Wieler, 35 Conn. App. 566, 576, 645 A.2d 1032 (1994), aff'd, 233 Conn. 552, 660 A.2d 740 (1995).

Under the first prong of our analysis, our examination of the proffered evidence reveals that the trial court properly admitted the evidence of the prior robbery convictions because the evidence was relevant to prove identity and to show a common scheme of criminal activity. “The first threshold for the use of evidence of other crimes or misconduct on the issue of identity is that the methods used be sufficiently unique to warrant a reasonable inference that the person who performed one misdeed also did the other.” (Internal quotation marks omitted.) State v. Crosby, 196 Conn. 185, 190, 491 A.2d 1092 (1985). A comparison of the three uncharged crimes with the C & K robbery reveals the following similarities: (1) all four robbery locations are in close proximity; (2) all four crimes occurred within a six day period; (3) each robbery was a weekday, daylight robbery of a small business office at either the beginning or end of the day; (4) in each robbery, there was a lone perpetrator using a gun; (5) in each robbery, the gunman placed his weapon close to the victim and announced that it was a “stickup”; (6) in each robbery, there was an insistent search for money and wallets; (7) in three of the four robberies, the defendant fled on foot; and (8) the same gun was used in the Smith-Worthington, Spillane’s Service Station and C & K robberies.

The defendant argues that the characteristics of these crimes are not sufficiently unique to warrant an exception to the general rule on the admissibility of other crimes evidence. We disagree.

“[T]he fact that some of the similarities between the offenses were legal or relatively common occurrences when standing alone does not, as the defendant argues, negate the uniqueness of the offenses when viewed as a whole. It is the distinctive combination of actions which forms the signature or modus operandi of the crime; State v. Esposito, [192 Conn. 166, 171-72, 471 A.2d 949 (1984)]; State v. Braman, [191 Conn. 670, 679, 469 A.2d 760 (1983)]; and it is this criminal logo which justifies the inference that the individual who committed the first offense also committed the second. State v. Mandrell, [199 Conn. 146, 151-52, 506 A.2d 100 (1986)]; State v. Esposito, supra, 171.” (Internal quotation marks omitted.) State v. Figueroa, 235 Conn. 145, 164, 665 A.2d 63 (1995), quoting State v. Morowitz, 200 Conn. 440, 445, 512 A.2d 175 (1986). Under the facts and circumstances in this case, we conclude that the trial court did not abuse its discretion in admitting the other crimes evidence because the characteristics of the four robberies were sufficiently distinctive and unique to be “like a signature,” and thus the defendant’s commission of those robberies was highly probative on the issue of the identity of the C & K robber.

Having determined that the trial court properly found the challenged evidence to be relevant, we must next review whether the court abused its discretion in weighing the probative value of the evidence against its prejudicial effect. State v. Figueroa, supra, 235 Conn. 166; State v. Braman, supra, 191 Conn. 676. “Relevant evidence of prior uncharged misconduct that is prejudicial in nature is admissible if the trial court, in the exercise of its sound discretion, determines that its probative value, for one or more of the purposes for which it is admissible, outweighs its prejudicial impact on the accused.” (Internal quotation marks omitted.) State v. Ortiz, 40 Conn. App. 374, 380, 671 A.2d 389, cert. denied, 236 Conn. 916, 673 A.2d 1144 (1996).

“Because of the difficulties inherent in [the probative-prejudicial] balancing process, the trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done.” State v. Howard, 187 Conn. 681, 685, 447 A.2d 1167 (1982). The similarities between the robberies rendered the evidence highly probative. State v. Figueroa, supra, 235 Conn. 167. The trial court, however, was aware of the potential prejudicial effect of the evidence and carefully instructed the jury three times concerning the limited use for which the evidence was being admitted. See id. Under these circumstances, we conclude that the trial court did not abuse its discretion in concluding that the probative value of the evidence exceeded its prejudicial effect. Accordingly, we conclude that there was no abuse of discretion in its decision to admit evidence concerning the other robberies.

Y

In his final claim, the defendant argues that the trial court improperly denied his motion for judgment of acquittal because the state “failed to prove the essential element of identity.” He contends that Hale’s testimony was the only evidence identifying the defendant as the perpetrator and that it was legally insufficient. We disagree.

“When we are called on to review a sufficiency of the evidence claim, we impose a two part analysis. We first construe the evidence in the light most favorable to sustaining the verdict. State v. Sals, 226 Conn. 20, 31, 627 A.2d 862 (1993); State v. Rivera, 32 Conn. App. 193, 200-201, 628 A.2d 996, cert. denied, 227 Conn. 920, 632 A.2d 698 (1993); State v. Hooks, 30 Conn. App. 232, 238, 619 A.2d 1151, cert. denied, 225 Conn. 915, 623 A.2d 1025 (1993). We next determine whether, from that evidence and all the reasonable inferences that flow from the evidence, a trier of fact could reasonably find that the defendant was guilty beyond a reasonable doubt. . . .

“It is the sole right of the jury as the trier of the facts to draw all reasonable and logical inferences from the facts as it finds them to exist. . . . It is also the absolute right and responsibility of the jury to weigh conflicting evidence and to determine the credibility of the witnesses. . . . Thus, the issue of the identification of the defendant as the perpetrator of the crime is peculiarly an issue of fact to be resolved by the jury. . . .

“The test for determining whether the evidence is sufficient to sustain a verdict is thus whether the [trier of fact] 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; internal quotation marks omitted.) State v. Reddick, 33 Conn. App. 311, 332-33, 635 A.2d 848 (1993), cert. denied, 228 Conn. 924, 638 A.2d 38 (1994).

Here, the jury had before it not only evidence of Hale’s description of the gunman right after the crime occurred and her identification of the defendant and his voice during a lineup, it also had other evidence that corroborated Hale’s testimony. The accuracy of Hale’s description was supported by another witness who recognized and identified the defendant from the composite drawing. Furthermore, three witnesses testified that they spotted a black male matching the description given by Hale fleeing the area of C & K at the time of the robbery. Two of these three witnesses also identified the fleeing man as the defendant. The jury was also presented with evidence from which it could infer that the gun that was used to kill Shortell and Cannon during the C & K robbery was the same gun used by the defendant in two other robberies. Our review of the foregoing leads us to conclude that the jury could have reasonably concluded that the defendant was guilty of the crimes charged beyond a reasonable doubt. Thus, the evidence presented at trial was sufficient to convict the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

      This appeal was taken originally to the Supreme Court. Pursuant to Practice Book § 4023, the Supreme Court transferred the appeal to this court.

       The defendant and the other men in the lineup were asked to say, “I have a gun, this is a holdup, give me your money.”

       Article first, § 9, of the constitution of Connecticut provides: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.”

       At the time the search and seizure warrant was presented to the court, there was no codified procedure to remove an incarcerated person from custody and place him in a lineup for an unrelated crime, other than a procedure “warranted by law.” See State v. White, 229 Conn. 125, 147-56, 640 A.2d 572 (1994).

       The record discloses that on November 19, 1992, during a hearing on a motion to suppress Hale’s identification of the defendant, the Faggaini report was referred to by the defendant when questioning Hale. It is probable, therefore, that the defendant had the report before the trial began.

       Witnesses of the Smith-Worthington and Spillane’s Service Station robberies identified the gun used in the C & K robbery as the same gun or similar in appearance to the weapon used in the other two robberies.

       The trial court instructed the jury three times concerning the limited use of this evidence of other crimes, twice during testimony and once as part of its jury instruction. In its instruction, the court stated, “I charge you that evidence of a defendant’s other misconduct or crimes is inadmissible to demonstrate the defendant’s bad character or to suggest that the defendant has a propensity for criminal behavior. This evidence was admitted for you to determine whether or not these crimes bear a sufficiently high degree of similarity to the charged crimes for you to conclude that the charged crimes were part of a common scheme or system of criminal activity which included the uncharged crimes.”

       Because we conclude that the trial court properly admitted the evidence to prove identity or to show a common scheme, we need not address the trial court’s finding that the evidence was also admissible to explain the composite or to show the defendant’s access to the gun.

       See footnote 7.

       The defendant invites this court to replace our well established standard for evaluating claims of insufficient evidence with a less deferential standard espoused by federal Judge Jon Newman. See J. Newman, “Beyond ‘Reasonable Doubt,’ ” 68 N.Y.U. L. Rev. 979 (1993). We decline to do so because “[wjhether our Supreme Court precedent should be reexamined, discarded or changed is not for this court to decide.” State v. Panella, 43 Conn. App. 76, 83, 682 A.2d 532, cert. denied, 239 Conn. 937, 684 A.2d 710 (1996).


text:
    STATE OF CONNECTICUT v. ERIC MAIA
    (AC 15623)
    Heiman, Spear and Hennessy, Js.

      Argued April 21
    officially released July 15, 1997

      Louis S. Avitabile, special public defender, for the appellant (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, was Michael A. Gailor, assistant state’s attorney, for the appellee (state).
   Opinion

HENNESSY, J.

The defendant, Eric Maia, appeals from a judgment of conviction, following a jury trial, of possession of narcotics with intent to sell in violation of General Statutes § 2 la-278 (b), possession of marijuana in violation of General Statutes § 21a-279 (c), and possession of marijuana within 1500 feet of a school in violation of General Statutes § 21a-279 (d). On appeal, the defendant claims that the trial court improperly denied his motion to suppress evidence of crack cocaine, marijuana and a pair of metal knuckles found on or near his person. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On February 8, 1994, at approximately 2:30 p.m., Sergeant Michael McMahon and Officer Timothy Wright, members of a tactical narcotics team in the vice and intelligence division of the Waterbury police department, were patrolling the areas of Walnut Street and Wood Street in an unmarked police vehicle. They saw the defendant and Gene Grant standing in front of a house at 264-266 Walnut Street. Neither the defendant nor Grant lived at that address. The officers noticed that Grant had several small plastic bags in his hands and was examining them. McMahon recognized the bags from his previous investigations as packaging for narcotics. The officers drove their vehicle in front of the two men. The officers did not draw their guns or say anything to the men. Upon seeing the vehicle, Grant began to put the plastic bags into his mouth and one fell out. McMahon seized the dropped bag and found that it contained a white rock substance. The substance in the bag was later identified as crack cocaine.

Meanwhile, the defendant ran down an alley next to the residence. Without drawing his weapon, Wright followed the defendant into the alley and found footprints in the snow that led to a door that opened onto the rear porch of the residence. Wright believed the footprints were left by the defendant and that he had gone inside. The officer opened the porch door and saw the defendant running up the backstairs. On the second floor landing, the defendant dropped a plastic bag containing a white rock substance that was later determined to be 24.8 grams of crack cocaine. Wright picked up the bag and then continued to chase the defendant, who had proceeded to the third floor landing. Soon thereafter, the officer caught the defendant and arrested him. Upon a search of the defendant’s person, the police found a plastic bag containing what was later determined to be 3.6 grams of marijuana, metal knuckles, a pager and $147.

Prior to trial, the defendant moved to suppress the evidence of the drugs and metal knuckles. The trial court denied his motion because it found that the police had a reasonable and articulable suspicion to pursue the defendant after his unprovoked flight from the front of the residence. At trial, a jury found the defendant guilty. The defendant appeals from the judgment of conviction.

The sole issue on appeal is whether the trial court improperly denied the motion to suppress the evidence. The defendant claims that when Wright chased him behind the closed door of the porch, he was improperly seized in violation of article first, §§ 7 and 9, of the Connecticut constitution. The defendant maintains that by closing the porch door, he exhibited a reasonable expectation of privacy and, therefore, Wright was required to have probable cause to chase him into the building. Under these circumstances, the defendant argues that the evidence obtained by the police subsequent thereto must be suppressed as the fruit of the illegal detention. We find the defendant’s arguments to be meritless.

Certain seizures are reasonable under our state constitution, even in the absence of probable cause, if there is a reasonable and articulable suspicion that a person has committed or is about to commit a crime. State v. Lamme, 216 Conn. 172, 184, 579 A.2d 484 (1990); State v. Anderson, 24 Conn. App. 438, 441, 589 A.2d 372, cert. denied, 219 Conn. 903, 593 A.2d 130 (1991). “Reasonable and articulable suspicion is an objective standard that focuses not on the actual state of mind of the police officer, but on whether a reasonable person, having the information available to and known by the police, would have had that level of suspicion. . . . The police officer’s decision . . . must be based on more than a hunch or speculation. ... In justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” (Citations omitted; internal quotation marks omitted.) State v. Gant, 231 Conn. 43, 65, 646 A.2d 835 (1994), cert. denied, 514 U.S. 1038, 115 S. Ct. 1404, 131 L. Ed. 2d 291 (1995).

“The determination of whether a reasonable and articulable suspicion exists involves a two-part analysis: (1) whether the underlying factual findings of the trial court are clearly erroneous; and (2) whether the conclusion that those facts gave rise to such a suspicion is legally correct. See State v. Cofield, 220 Conn. 38, 44, 595 A.2d 1349 (1991). The trial court’s conclusions must stand unless they are legally and logically inconsistent with the facts. . . . Id.; see State v. Lasher, 190 Conn. 259, 267, 460 A.2d 970 (1983).” (Internal quotation marks omitted.) State v. Kyles, 221 Conn. 643, 660-61, 607 A.2d 355 (1992).

Regarding the pursuit of the defendant into the enclosed porch, we conclude that the trial court properly found that Wright had a reasonable and articulable suspicion that the defendant had committed or was about to commit a crime. The defendant was observed in a high drug traffic area, standing face-to-face with a man who was holding plastic bags containing a white substance. In addition, when the two suspects observed the unmarked police vehicle, the defendant ran away and the other man attempted to swallow the bags.

We now address the defendant’s argument that he exhibited a reasonable expectation of privacy in the premises and, therefore, Wright needed probable cause to open the closed porch door. “Because the constitutional prohibition against unreasonable searches and seizures affords protection only against invasions of reasonable expectations of privacy . . . our threshold inquiry is whether the defendant in fact possessed a reasonable expectation of privacy in the [premises]. . . . Absent such an expectation, the subsequent police action has no constitutional ramifications.” (Citations omitted.) State v. Brown, 198 Conn. 348, 355, 503 A.2d 566 (1986).

“The determination of whether a reasonable expectation of privacy exists is fact specific and requires a two part inquiry. The first inquiry is whether the individual has exhibited an actual subjective expectation of privacy, and the second one is whether that expectation is one that society is prepared to recognize as objectively reasonable. See State v. Mooney, 218 Conn. 85, 94, 588 A.2d 145, cert. denied, 502 U.S. 919, 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991). The place searched is highly relevant to this analysis because expectations of privacy in some places are afforded greater constitutional legitimacy than in others. Id., 94-95; State v. Brown, supra, [198 Conn.] 356; State v. Santiago, 26 Conn. App. 481, 602 A.2d 40 (1992).” State v. DeFusco, 27 Conn. App. 248, 259, 606 A.2d 1 (1992), aff'd, 224 Conn. 627, 620 A.2d 746 (1993).

We conclude that the trial court properly found that the defendant did not have a reasonable expectation of privacy in the common areas of 264-266 Walnut Street. Neither Grant nor the defendant resided at the premises. While “a person may have a sufficient interest in a place other than his home to enable him to be free in that place from unreasonable searches and seizures”; Minnesota v. Olson, 495 U.S. 91, 98, 110 S. Ct. 1684, 109 L. Ed. 2d 85 (1990); the defendant has failed to demonstrate that he had any interest whatsoever in the building. The trial court specifically found that the defendant had no property interest in the building and that the defendant had entered only “the common portions [of the building] that any visitor . . . might occupy.” Thus, Wright legally entered the premises with a reasonable and articulable suspicion that the defendant had committed or was about to commit a crime. We conclude that the police action did not violate the defendant’s constitutional rights. The evidence, therefore, was properly admitted at trial.

The judgment is affirmed.

In this opinion the other judges concurred.

      The tactical narcotics team had made hundreds of arrests involving narcotics, assaults and firearms in this area.

       Article first, § 7, of the constitution of Connecticut provides: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.”
      Article first, § 9, of the constitution of Connecticut provides: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.”

       The defendant argues that his flight upon seeing the officers’ unmarked vehicle cannot be used “to elevate ‘reasonable and articulable suspicion’ to ‘probable cause.’ ” Because we conclude that the officer did not need probable cause to enter the building, we need not address this claim.

       The defendant also urges this court to adopt the doctrine of automatic standing under the state constitution. This doctrine, which confers standing on a defendant who is legitimately on the invaded premises or who has been charged with an offense of which possession of the seized item is an element, was adopted in Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960). It was subsequently rejected in favor of the more restrictive reasonable expectation of privacy test. See United States v. Salvucci, 448 U.S. 83, 92-93, 100 S. Ct. 2547, 65 L. Ed. 2d 619 (1980); Rakas v. Illinois, 439 U.S. 128, 143, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978). Our Supreme Court abandoned the automatic standing doctrine and adopted the reasonable expectation of privacy test in State v. Altrui, 188 Conn. 161, 179 n.6, 448 A.2d 837 (1982). “Whether our Supreme Court precedent should be reexamined, discarded or changed is not for this court to decide.” State v. Panella, 43 Conn. App. 76, 83, 682 A.2d 532, cert. denied, 239 Conn. 937, 684 A.2d 710 (1996). Accordingly, we decline to adopt a doctrine that our Supreme Court has explicitly rejected.

       Even if the defendant was a tenant in the apartment, his claim would have failed because the police entered only the common areas of the premises. “A tenant has a reasonable expectation of privacy in areas where his use is exclusive, that is, where he has the legal right to control access and to exclude others.” (Internal quotation marks omitted.) State v. Torres, 36 Conn. App. 488, 500, 651 A.2d 1327, cert. denied, 232 Conn. 912, 654 A.2d 357 (1995). Here, the defendant has failed to demonstrate that he had a right to control access to the back porch or to the stairwells.