author: Foti, J.

text:
    State of Connecticut v. Ralph D. Byrd
    (11365)
    Foti, Freedman and Spear, Js.
    Argued January 14
    decision released May 17, 1994

      Louis S. Avitabile, special public defender, with whom, on the brief, was Meryl Anne Spat, for the appellant (defendant).

      Margaret Gaffney Radionovas, assistant state’s attorney, with whom, on the brief, were John A. Connolly, state’s attorney, and Robert C. Brunetti, assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (l). The defendant claims that the trial court improperly (1) failed to instruct the jury on the motivation of the state’s witness as a complaining witness and a possibly culpable party, (2) instructed the jury on the duty to retreat, and (3) admitted into evidence the defendant’s statement to the police. He also alleges that there was insufficient evidence to allow the jury to find his defense of self-defense disproved beyond a reasonable doubt. We affirm the judgment of the trial court.

The jury could have reasonably found the following facts. The defendant, the victim, who was the defendant’s brother, and Mark Griffin were involved in selling narcotics. On April 4, 1991, after a meeting with their drug supplier, Kojak, the defendant brought forty vials of crack cocaine to the apartment that the three men shared. There, the defendant drank and played cards with Griffin and the victim and they used some of the crack cocaine. During the card game, the brothers argued about how they should share the drugs.

Later, Kojak stopped by the apartment to collect money from Griffin. The victim told Kojak that he wanted to receive his own drugs to sell. Shortly after Kojak left, the defendant and the victim had another argument, which ended with the victim grabbing the plastic bag containing the crack cocaine, putting it into his pocket, and walking toward the back door. The defendant followed and asked for the return of the drugs, reminding the victim that he was responsible to Kojak for them. The victim said that the drugs were his compensation for taking all the risks in making the drug sales.

The defendant first blocked the back door, and then blocked the front door when the victim tried to exit by that route. On the way to the front door, the defendant picked up a knife from the kitchen counter. He grabbed the victim with one hand and poked and jabbed at the victim’s stomach and chest with the knife. The victim backed away from the defendant into the living room. The defendant followed and, as the two struggled violently, the defendant told the victim to let him go or he would stab the victim in the back. The defendant stabbed the victim in the back, and when the victim released him the defendant ran out the back door.

Later, the defendant turned himself in to the police. In the meantime, the victim had been pronounced dead. The cause of death was determined to be a five to six inch deep stab wound to the back. The victim also had three nonlethal stab wounds to the front of his body. The defendant admitted on two occasions, to persons other than the police, that he had either stabbed or killed his brother.

I

A

The defendant first claims that the trial court improperly failed to charge as requested on Griffin’s motivation as a complaining witness and possibly culpable party. The trial court’s charge neither characterized Griffin as a complaining witness, nor suggested that Griffin himself could have been subject to prosecution depending only on the veracity of his account of the crime.

Griffin, the state’s chief witness, testified and was cross-examined at length. He testified that the defendant blocked the victim’s exit, and that the victim forcibly attempted to remove the defendant from the doorway. He further indicated that when the defendant jabbed the knife at the victim, the victim grabbed the defendant, placed him in a headlock and began banging the defendant’s head against the wall. When the struggle ended and the victim let the defendant go, the defendant ran out of the apartment, and the victim sat down on the couch and gave Griffin the drugs from his pocket. Griffin testified that the victim said that he was all right and that he just wanted to rest. Returning later to check on the victim, Griffin found him unresponsive and he called 911. Griffin denied stabbing the victim.

The defendant argues that the interest, motive and credibility of both the defendant and Griffin were the heart of the case. If the defendant did not stab the victim, Griffin was the only other person who could have. The jury was specifically instructed that the defendant’s interest in the outcome of the case should be factored into his credibility. The defendant argues that the trial court should have given a similar charge directed at Griffin. We do not agree.

In order to be entitled to a charge regarding the complainant’s possible motive to avoid criminal prosecution, the defendant must show that the witness is the complaining witness and that there was evidence to support, the assertion that the complaining witness was the culpable party. State v. Keiser, 196 Conn. 122, 133, 491 A.2d 382 (1985); State v. Cooper, 182 Conn. 207, 212, 438 A.2d 418 (1980).

Unquestionably, Griffin was a witness for the state. That alone, however, does not qualify him as a “complaining witness.” Griffin was not a victim, nor in any other way does he qualify as a complaining witness. See State v. Cooper, supra, 182 Conn. 212 n.5 (criminal defendant is not entitled to instruction singling out any state’s witness regarding his possible motive for falsifying testimony, but only as to complaining witness who could himself be subject to prosecution); see also State v. Smith, 16 Conn. App. 223, 229, 547 A.2d 102 (1988) (where witness was not complaining witness, court did not abuse its discretion in refusing to give special cautionary instruction as to motive).

Further, the evidence introduced at trial was clearly insufficient to implicate Griffin as a culpable party. To be sufficient, evidence must directly connect the third party to the crime with which the defendant is charged. State v. Echols, 203 Conn. 385, 392, 524 A.2d 1143 (1987). It is not enough to show that the party had a motive to commit the crime; State v. Marshall, 166 Conn. 593, 601, 353 A.2d 756 (1974); nor is it enough to raise a mere suspicion that he may have committed the crime. State v. Hernandez, 224 Conn. 196, 202, 618 A.2d 494 (1992). On the basis of the facts presented, the court properly refused to instruct as requested by the defendant.

B

The defendant also claims that the trial court improperly instructed the jury on the duty to retreat. The defendant recognizes the statutory duty to retreat and does not claim a statutory exception. General Statutes § 53a-19 (b) (1). Rather, the defendant, citing State v. Moore, 31 Conn. 479 (1863), and relying on State v. Havican, 213 Conn. 593, 569 A.2d 1019 (1990), claims that the duty to retreat “doesn’t apply in this type of situation because, if it is during the course of a robbery, the victim of the robbery doesn’t have to retreat.” We do not agree.

“When reviewing the court’s instruction, our role is to determine whether, taken as a whole, [it] fairly and adequately presents] the case to a jury in such a way that injustice is not done to either party under the established rules of law.” (Internal quotation marks omitted.) State v. Lee, 32 Conn. App. 84, 104, 628 A.2d 1318, cert. denied, 227 Conn. 924, 632 A.2d 1702 (1993).

The testimony of both the defendant and Griffin establishes that the victim took drugs that were in the defendant’s possession. Although at common law the victim of a robbery may have had no duty to retreat and could even pursue his adversary to ensure his safety by using deadly force; see State v. Moore, supra, 31 Conn. 479; our statutory scheme requires retreat in lieu of using deadly force, except in certain delineated circumstances. General Statutes § 53a-19. “Connecticut is among a minority of jurisdictions . . . that has followed the position . . . that, before using deadly force in self-defense, an individual must retreat. Retreat is required, however, only if it can be achieved with complete safety. The underlying policy of the duty to retreat is that the protection of human life has a higher place in the scheme of social values than the value that inheres in standing up to an aggression.” (Citation omitted.) State v. Anderson, 227 Conn. 518, 530, 631 A.2d 1149 (1993).

“A person is not permitted to use deadly physical force in self-defense just because that person reasonably believed that the victim was attempting to rob that person.” State v. Harrison, 32 Conn. App. 687, 694, 631 A.2d 324, cert. denied, 227 Conn. 432, 632 A.2d 708 (1993). “[T]he crux . . . is not whether the defendant reasonably believed he was being robbed, but whether [he] reasonably believed that the victim was using or about to use deadly physical force or was inflicting or about to inflict great bodily harm. General Statutes § 53a-19 (a).” Id.

The court instructed on the justifications of defense of property, defense of person, and the duty to retreat. General Statutes §§ 53a-19 and 53a-21. The court originally instructed that when the “defendant knows that if he surrenders the [disputed] property that the assailant will flee without harming him, then the defendant may . . . not use deadly force but should surrender the property.” In the supplemental charge, however, the court instructed that if the jury found that the victim was in the process of robbing the defendant using violence and surprise, the defendant could be acquitted under the justification of self-defense.

The defendant argues that the court should have instructed that if the jury found the defendant to be the victim of robbery, then he had no duty to retreat unless and until he had secured himself from all danger. We do not agree. Our laws governing the use of deadly force in defense of person or property do not negate the duty to retreat except as delineated; the common law privilege has been extinguished by statutory mandate.

II

The defendant next claims that the trial court improperly admitted into evidence, for impeachment purposes, an inculpatory statement that he gave to the police on the evening of the crime. He claims that the statement was involuntary and inadmissible under the fifth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution.

The facts relevant to this issue are as follows. At approximately 10:45 p.m. on April 4,1991, the defendant and Griffin went to police headquarters and were escorted to the detective bureau, where the defendant encountered his brother William and his sister Elaine. He became very emotional and stated more than once, “I killed my brother; my life is over.” The defendant was escorted into another room, crying and retching. He was given a towel and allowed one-half hour to calm down, and then was arrested for violation of probation. The defendant was advised of his Miranda rights and nodded his head in response, but made no other signs that he understood those rights.

The defendant agreed to give a statement, which was typed as the defendant spoke. The defendant gave a detailed narrative of the events that occurred at the apartment and answered questions by the police. While giving the statement, the defendant seemed upset and, at least twice, put his head down and cried into his hands. Both times the officer taking the statement stopped and allowed the defendant to regain his composure. It took approximately one hour to complete the statement. His speech was coherent and he gave no appearance of being under the influence of alcohol or drugs. No threats or promises were made to the defendant as inducement for the statement.

After completing the statement, the defendant read it, confirmed that it was correct, and signed it. Shortly thereafter the defendant raised his hand, acknowledged the statement to be his, verified that he had read, initialed and signed it, and affirmed that the information contained therein was true. At that time, he showed no sign of emotional upset.

Following an evidentiary hearing, the court granted the defendant’s motion to suppress the statement, finding that the state had failed to sustain its burden of demonstrating that the defendant knowingly and voluntarily waived his Miranda rights. The court, however, found that the statement was voluntary. At trial, the defendant testified on his own behalf. The state, over the defendant’s objection, was allowed to admit the defendant’s statement into evidence and use it for impeachment purposes.

Following the jury’s verdict, the defendant filed a motion for new trial and argued that the statement was involuntary under our state constitution, article first, § 8. He also argued that the court should reconsider its ruling on voluntariness under Colorado v. Connelly, 479 U.S. 157, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986). The court denied the defendant’s motion for a new trial.

A

The defendant claims that the trial court misread Connelly, and that “police overreaching” took place because the police knew that the defendant was upset and physically ill because they saw him crying and retching.

We begin our analysis by noting that the trial court’s underlying factual findings led to the conclusion that no coercive police tactics had been employed. The defendant does not challenge these factual findings. Rather than asserting that coercive police tactics had been employed, the defendant argues that his visible condition alone was sufficient to make his statement “coercive.”

It is clear that in Colorado v. Connelly, supra, 479 U.S. 167, a majority of the United States Supreme Court held that “coercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary’ within the meaning of the Due Process Clause of the Fourteenth Amendment” even though the admissions may have been made by the defendant when he was mentally ill. There must be police conduct, or official coercion, causally related to the confession before the issue of voluntariness may be the cause of a due process inquiry. The emotional state of the defendant and physical illness did not render the statement involuntary under Colorado v. Connelly, supra, 167.

B

The defendant requests that we determine that his statement was involuntary under the guarantees of article first, § 8, of the Connecticut constitution because the state failed to establish that his written statement resulted from the exercise of his own free will and rational intellect. The state argues that this claim is not reviewable because the defendant failed to assert the claim actively at trial and, therefore, it was not adequately preserved.

Although the defendant’s written motion to suppress, filed October 30, 1991, identified article first, § 8, of our state constitution as one of several bases for exclusion of his statement, and claimed that the statement was not voluntarily made, the “motion, unaccompanied by case citation or a memorandum, otherwise failed to explicate the nature of his state constitutional voluntariness claim.” State v. Medina, 228 Conn. 281, 296, 636 A.2d 351 (1994).

The defendant’s primary argument during the suppression hearing was that the state had failed to show a valid waiver of Miranda rights in violation of both the fifth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. Counsel for the defendant stated that if there was no proper waiver then the court need not reach the due process issue. He alerted the court during the hearing that police overreaching is necessary for the statement to be inadmissible under the United States Supreme Court’s ruling in Colorado v. Connelly, supra, 479 U.S. 157, but noted that the issue had not yet been squarely addressed under the Connecticut constitution. While this claim may not have been articulated with clarity and specificity, we cannot conclude that the record before us fails to support that the defendant raised a state constitutional claim.

The state also argues that we cannot decide the defendant’s claim because the record is inadequate, the trial court having made its factual findings on the issue of voluntariness solely on the basis of federal law. We agree.

“The question of voluntariness is one of fact for determination by the trial court in the exercise of its discretion, subject to the constitutional standards of due process.” State v. Barrett, 205 Conn. 437, 452, 534 A.2d 219 (1987). Because the trial court failed to consider the state constitutional claim, the record necessarily lacks sufficient factual findings to which we might apply any newly articulated state constitutional standard. A remand for factual determinations would be inappropriate. State v. Medina, supra, 228 Conn. 301. We decline, therefore, to decide the defendant’s state constitutional claim.

Ill

The defendant concedes that the evidence presented at trial might support a conviction of criminally negligent homicide, but claims that it was insufficient to justify the conviction for manslaughter in the first degree. The defendant argues that the evidence cannot sustain the verdict because the evidence as to the existence of justified self-defense was neither conflicting nor tended to disprove it. We do not agree.

We employ a two part analysis when reviewing a sufficiency of the evidence claim. State v. Rivera, 32 Conn. App. 193, 200, 628 A.2d 996, cert. denied, 227 Conn. 920, 632 A.2d 698 (1993). First, we construe the evidence in the light most favorable to sustaining the verdict. State v. Salz, 226 Conn. 20, 31, 627 A.2d 862 (1993). Second, we “ ‘determine whether, from that evidence and all the reasonable inferences which it yields, a [trier of fact] could reasonably have concluded that the defendant was guilty beyond a reasonable doubt.’ ” State v. Hooks, 30 Conn. App. 232, 238, 619 A.2d 1151, cert. denied, 225 Conn. 915, 623 A.2d 1025 (1993). “In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.” (Internal quotation marks omitted.) State v. Salz, supra, 31.

The jury’s province as the sole trier of fact is to draw all reasonable and logical inferences from the facts as it finds them to exist. State v. Gray, 221 Conn. 713, 721, 607 A.2d 391, cert. denied, U.S. , 113 S. Ct. 207, 121 L. Ed. 2d 148 (1992). The jury also has the sole and absolute responsibility to weigh conflicting evidence and to determine the credibility of the witnesses. State v. Pinnock, 220 Conn. 765, 778-79, 601 A.2d 521 (1992); State v. Hooks, supra, 30 Conn. App. 239.

It is the state’s burden to establish the guilt of the accused by proving beyond a reasonable doubt each material element of the crime charged. State v. Maxwell, 29 Conn. App. 704, 708-709, 618 A.2d 43 (1992), cert. denied, 225 Conn. 904, 621 A.2d 287, cert. denied, U.S. , 113 S. Ct. 3057, 125 L. Ed. 2d 740 (1993). When self-defense is raised by way of justification, the state has the burden of disproving that defense beyond a reasonable doubt. General Statutes § 53a-12 (a); State v. Jarrett, 218 Conn. 766, 772, 591 A.2d 1225 (1991). The defendant claims that the state failed to present sufficient evidence to disprove beyond a reasonable doubt the elements of self-defense as set forth in General Statutes § 53a-19 (a).

At trial, the defendant claimed that he had not stabbed his brother, but, if he had, he had acted in self-defense. The sole question raised is whether there was sufficient evidence presented by the state to have allowed the jury to reject the defendant’s claim of self-defense. We conclude that there was.

As discussed in part I of this decision, a person is justified In using deadly physical force as self-defense only when he reasonably believes such force is necessary because another person is using or about to use deadly physical force or inflicting or about to inflict great bodily harm. General Statutes § 53a-19 (a). This is a question of fact for the trier. The issue is what the defendant himself reasonably believed. State v. Garrison, 203 Conn. 466, 470, 525 A.2d 498 (1987). “In evaluating a claim of self-defense, a trier of fact must first examine the danger that a defendant claims he faced. It is clear that here [t]he statute focuses on the [defendant’s] claiming self-defense. It focuses on what he reasonably believes under the circumstances .... In evaluating the defendant’s belief that he was faced with the imminent use of deadly physical force, the jury must first determine [what] the defendant believed . . . and then it must determine whether that belief was reasonable.” (Citations omitted; internal quotation marks omitted.) State v. Bellino, 31 Conn. App. 385, 392-93, 625 A.2d 1381, cert. granted, 226 Conn. 917, 628 A.2d 988 (1993).

There were substantial facts from which the jury could have concluded that the defendant did not act in self-defense when he used deadly physical force. The defendant blocked the doors so the victim could not exit. He got a knife from the kitchen counter and grabbed the victim by the collar and jabbed at him with that knife. The victim retreated into the living room and the defendant followed. During the ensuing struggle, the defendant threatened the victim that he would stab the victim in the back if the victim did not release him.

It is the jury’s right to accept some, none or all of the evidence presented. State v. Raguseo, 225 Conn. 114, 124, 622 A.2d 519 (1993). From these and other facts, we conclude that the state presented sufficient evidence for the jury to reject the defendant’s claim of self-defense. The cumulative effect of the evidence and the reasonable and logical inferences that the jury could have drawn from that evidence was more than sufficient to support the jury’s conclusion, and demonstrates that the state met its burden of disproving the defense of justification.

The judgment is affirmed.

In this opinion the other judges concurred.

       The jury found the defendant guilty of manslaughter in the first degree as a lesser included offense of the charge of murder in violation of General Statutes § 53a-54a (a).

       The defendant requested the following charge: “In cases such as this case where the complaining witness could himself have been subject to prosecution depending only on the veracity of his account of the particular alleged criminal transaction in question, the court must specifically charge you in reference to the credibility of Mark Griffin in light of any motive he might have for testifying falsely and inculpating the accused, Ralph Darryl Byrd.
      “In considering and weighing the testimony of the state’s witness, Mark Griffin, the claimed eyewitness of the homicide, you will test it by those rules of probability or improbability by which human conduct and the motives impelling or influencing men to do certain things are usually applied. You may consider his appearance and demeanor as a witness, the reasons given actuating him in telling his story to the state authorities, and among these tests, to consider whether any motive has appeared or any reason is apparent why he should seek to fasten so grave a crime upon the accused, if his story is untrue, for the presence or absence of a motive is often an important matter to consider in a determination of the truth or falsity of a story. You must consider and compare his testimony with all the other testimony and evidence in the case. State v. Cooper, 182 Conn. 207, [210-12, 438 A.2d 418 (1980)]; State v. Keiser, 196 Conn. 122, [132-33, 491 A.2d 382 (1985)]; State v. Cianflone, 98 Conn. 454, [463-65, 120 A. 347] (1923).”

       The court’s instruction substantially followed the remainder of the defendant’s request. The court is under no duty to charge in the identical language requested if its charge is accurate, adequate, and in substance, properly includes material portions of the request. State v. Tatum, 219 Conn. 721, 735, 595 A.2d 322 (1991).

       A complaining or prosecuting witness is “the person who was chiefly injured, in person or property, by the act constituting the alleged crime . . . and who instigates the prosecution . . . .” Black’s Law Dictionary (6th Ed. 1990).

       The defendant argues that the corroboration of his testimony by Cynthia Clark, who lived in the apartment next door, along with other physical evidence was sufficient to establish culpability. The testimony and evidence merely confirmed that an altercation took place; nothing suggested that Griffin was the culpable party.

       The court did instruct the jury that the state must prove beyond a reasonable doubt the identity of the defendant as the person who committed the crime. Any evidence pointing to the culpability of Griffin could be used to raise a reasonable doubt as to the guilt of the defendant. Griffin’s prior felony conviction and any inconsistencies in his testimony could be considered in assessing his credibility. The court also gave a general instruction as to witness credibility and instructed that the jury should consider the witnesses’ appearances, biases, prejudices, interests, and abilities to observe and remember in determining their credibility. A general charge regarding motive as strong evidence of guilt, and lack of motive as raising a reasonable doubt was also given. Under the facts of this case, these instructions were adequate. See, e.g., State v. Smith, supra, 16 Conn. App. 229 n.2.

       In State v. Havican, supra, 213 Conn. 602, our Supreme Court noted with regard to General Statutes § 53a-19 that “the Connecticut legislature [in choosing] to utilize the term ‘great bodily harm’ . . . recognized that they were not setting forth an all-inclusive list of offenses that would justify the use of deadly physical force.”

       General Statutes § 53a-19 provides in pertinent part: “(a) Except as provided in subsections (b) and (c) of this section, a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.
      “(b) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using deadly physical'force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling, as defined in section 53a-100, or place of work and was not the initial aggressor, or if he is a peace officer or a private person assisting such peace officer at his direction, and acting pursuant to section 53a-22, or (2) by surrendering possession of property to a person asserting a claim of right thereto, or (3) by complying with a demand that he abstain from performing an act which he is not obliged to perform. . . .”

       Either the threat of serious physical injury or the threat of great bodily harm may justify the use of deadly force. State v. Roman, 25 Conn. App. 734, 737-38, 596 A.2d 930, cert. denied, 220 Conn. 928, 598 A.2d 368 (1991). However, “[t]he use of deadly force must ultimately be reasonable in the circumstances.” State v. Tyson, 23 Conn. App. 28, 37, 579 A.2d 1083, cert. denied, 216 Conn. 829, 582 A.2d 207 (1990).

       The court instructed that “[t]he law does not encourage the use of deadly force and in most circumstances, a person must retreat from the perceived harm if he is able to do so with complete safety.” The court repeated this instruction in its supplemental charge but omitted the word “complete” and used only the word “safety”; see State v. Anderson, supra, 227 Conn. 529 (finding that charging as to “safety” instead of “complete safety” substantively altered meaning of General Statutes § 53a-19). Because the phrase was correctly set forth in the principal charge, the overall charge was correct.

       The court instructed as follows: “[I]n the case of . . . robbery there is an inherent fear of great bodily harm to the robbery victim where violence and surprise are present. And where that occurs, the law allows such person, that is, the robbery victim, to resort to deadly force in self-defense to prevent the anticipated harm, that is, the great bodily harm ....
      “So, if you find on an examination of all the credible evidence that . . . the victim was in the process of committing a forcible robbery in which property of the defendant was being taken and withheld in which violence and surprise were present, and in which great bodily harm was being inflicted or about to be inflicted upon the defendant, then you may find that the defendant was justified in using deadly force. And under such circumstances, you may acquit him of the crime charged and the lesser included offenses.”

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

       The trial court instructed the jury that the statement could be considered only for the limited purpose of judging the credibility of the defendant’s trial testimony.

       We would normally, on appeal, undertake an independent and scrupulous examination of the entire record to ascertain whether the trial court’s finding with respect to voluntariness is supported by substantial evidence. State v. Medina, 228 Conn. 281, 294, 636 A.2d 351 (1994); State v. Smith, 200 Conn. 465, 478, 512 A.2d 189 (1986). Because the subordinate factual findings are not contested, we will determine the issue as raised — whether the defendant’s physical and emotional state rendered his statement “involuntary” under Colorado v. Connelly, supra, 479 U.S. 157.

       Our Supreme Court has cited to this principle in both the majority in State v. Medina, supra, 228 Conn. 295, and in the dissent. Id., 331. (Berdon, J., dissenting).

       Article first, § 8, of the Connecticut constitution provides: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him; to have compulsory process to obtain witnesses in his behalf; to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great; and in all prosecutions by indictment or information, to a speedy, public trial by an impartial jury. No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law, nor shall excessive bail be required nor excessive fines imposed. No person shall be held to answer for any crime, punishable by death or life imprisonment, unless on a presentment or an indictment of a grand jury, except in the armed forces, or in the militia when in actual service in time of war or public danger.”

       Defense counsel further stated that “[i]f the court gets beyond that issue [waiver] then ... we have the due process issue. And we would ask the court to consider the matter under what the state law would be eventually if in a situation like this the Supreme Court of our state were to address this particular issue, whether under our state constitution other factors besides police overreaching can make a statement admissible.” He further argued that the defendant’s statement should be deemed involuntary under the state constitution and that “under the state constitution, the factors of emotional and mental factors by themselves should be sufficient without the issue of police overreaching or police conduct.”

       Further, the state contends that the defendant failed to assert a state constitutional challenge to the voluntariness of his statement when objecting to its admission at trial, and thereby waived that challenge as initially raised in his motion to suppress. The state also argues that the defendant has failed to brief the state constitutional issue adequately in that it is “bereft of meaningful analysis.” See State v. Hamilton, 228 Conn. 234, 246 n.10, 636 A.2d 760 (1994). We find it unnecessary to address these arguments because of our determination regarding an inadequate record.

       The defendant bears the responsibility for providing an adequate record for his claim of constitutional error. State v. Medina, supra, 218 Conn. 301 n.22.

       General Statutes § 53a-58 (a).

       See footnote 8.


source: Caselaw Access Project

author: Lavery, J.

license: Public Domain

text:
    Frank E. Ahearn, Trustee, et al. v. Inland Wetlands Agency-Conservation Commission of the Town of South Windsor et al.
    (11996)
    Foti, Lavery and Landau, Js.
    Argued November 5, 1993
    decision released May 17, 1994

      Frank E. Ahearn, for the appellants (plaintiffs).

      John F. Sullivan, with whom, on the brief, was Ralph J. Alexander, for the appellees (defendants).
   Lavery, J.

The plaintiffs appeal from the trial court’s dismissal of their appeal from a cease and desist order issued by the South Windsor inland wetlands agency-conservation commission. The plaintiffs claim that the trial court improperly concluded that the commission had correctly asserted jurisdiction over a portion of their land pursuant to regulations that they claim conflict with General Statutes § 22a-42a (b). We affirm the decision of the trial court.

In May, 1990, the plaintiffs constructed an earth berm on their property in South Windsor to redirect surface water flowing from a neighboring property. On May 31,1990, the commission’s wetlands enforcement officer notified the plaintiffs that they had constructed the berm in a regulated area without a permit. He ordered the plaintiffs “to cease any further work in the regulated area.” Prior to this notice, there had not been a determination by the commission that the area in question was a watercourse nor did the commission’s map of regulated areas designate any wetlands or watercourses on or near the plaintiffs’ property.

At a meeting of the commission on July 16,1990, the plaintiffs contended that the intermittent watercourse did not appear on the commission’s map of regulated areas and that, therefore, the commission had no jurisdiction over their property. They further contended that the water flow and the resulting channel were caused by the actions of the adjacent property owner. The commission sought opinions from the Connecticut department of environmental protection and the Hartford County soil and water conservation district on whether the plaintiffs had acted in a watercourse. Both agencies concluded that the area was in fact an intermittent watercourse subject to commission regulations. Further, both agencies concluded that the watercourse existed prior to the neighbor’s actions. The commission then issued a cease and desist order and ordered the plaintiffs to remove the fill placed in the intermittent watercourse.

The plaintiffs appealed to the Superior Court on November 2, 1990, alleging that the commission had violated General Statutes § 22a-42a by amending the boundaries of inland wetlands without holding a public hearing. After hearing argument, the trial court dismissed the appeal. In its memorandum of decision, the trial court ruled that the commission had not violated § 22a-42a because the commission’s map depicted regulated areas only generally and the town regulations established that regulated areas also included “that which actually exists . . . .” Therefore, because the plaintiffs’ land included an existing watercourse, the regulations established that the plaintiffs’ land was a regulated area within the commission’s jurisdiction. The plaintiffs then appealed to this court.

The plaintiffs claim that the commission’s regulations conflict with § 22a-42a. The jurisdiction of the commission is limited by the boundaries of wetlands and watercourse areas; Connecticut Fund for the Environment, Inc. v. Stamford, 192 Conn. 247, 250, 470 A.2d 1214 (1984); also known as the “regulated area.” The commission’s regulations define the regulated areas, and thus the commission’s jurisdiction, as those areas shown on the commission’s map of regulated areas. The South Windsor Inland Wetlands, Watercourses, and Conservation Regulations § 3.1 (1993) (hereinafter South Windsor Regulations). The regulations also provide that the regulated area “shall be that which actually exists and will be determined by a declaratory ruling of the [commission]. . . .” South Windsor Regulations § 3.1. The regulations define the term “regulated area” as all wetlands and watercourses and those areas within forty and eighty feet, respectively. South Windsor Regulations § 2.1 (q). The word “watercourse” is, in turn, defined as “rivers, streams, brooks, waterways, lakes, ponds, marshes, swamps, bogs and all other bodies of water, natural or artificial, public or private, vernal or intermittent . . . .” South Windsor Regulations § 2.1 (w). The term “intermittent watercourse” is defined in technical terms of water presence and soil content. South Windsor Regulations § 2.1 (j). In sum, the town regulations grant the commission jurisdiction over any area, mapped or unmapped, if by declaratory ruling the commission rules that the area falls within the definition of “regulated area.”

The plaintiffs allege that these regulations conflict with the Inland Wetlands and Watercourses Act. General Statutes § 22a-36 et seq. “Under the act the commissioner of environmental protection (commissioner) is charged with the responsibility of protecting inland wetlands and watercourses by, inter alia, regulating activity'which might have an adverse environmental impact on such natural resources. Under §§ 22a-42 and 22a-42a, any municipality, acting through its legislative body, may authorize or create a board or commission to regulate activities affecting the wetlands and watercourses located within its territorial limits and any such board or commission is authorized to grant, deny or limit any permit for a regulated activity. . . . The municipal inland wetland agency is authorized to establish the boundaries of inland wetlands and watercourse areas within its jurisdiction.” Connecticut Fund for the Environment, Inc. v. Stamford, supra, 192 Conn. 249-50. Section 22a-42a (b) provides that the jurisdictional boundaries of the commission may be established and changed only after public notice and a hearing. “Once such boundaries are established . . . no regulated activity shall be conducted within such boundaries without a permit issued by the local agency.” Id., 250. Thus, the act permits local conservation commissions to act within the areas of actual wetlands and watercourses and restricts the manner in which that jurisdiction may be invoked.

Since the decision in Aaron v. Conservation Commission, 183 Conn. 532, 538, 441 A.2d 30 (1981), the language of the act has been “interpreted” according to the underlying legislative policy. That policy is “ ‘to protect the citizens of the state by making provisions for the protection, preservation, maintenance and use of the inland wetlands and water courses by minimizing their disturbance and pollution; [and by] maintaining and improving water quality in accordance with the highest standards set by federal, state or local authority ....’ ” Id.

Our Supreme Court has, over the years, used this policy to add its expansive judicial gloss to the language of the statutes. Mario v. Fairfield, 217 Conn. 164, 180, 585 A.2d 87 (1991) (Covello, J., dissenting). Thus, inland wetland commissions can now exercise jurisdiction outside their jurisdictional boundaries if activities on “unregulated” land would affect wetlands. Aaron v. Conservation Commission, supra, 183 Conn. 542-43; see also Mario v. Fairfield, supra, 172; Connecticut Fund for the Environment, Inc. v. Stamford, supra, 192 Conn. 250-51. Similarly, a commission can impose a condition of off-site compensation of wetlands lost as long as it considers the impact of the application on the subject property. Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 722-23, 563 A.2d 1339 (1989). A commission can now regulate a zone outside its jurisdictional boundaries without a case-by-case review of the impact on the land within its jurisdiction. Lizotte v. Conservation Commission, 216 Conn. 320, 337, 579 A.2d 1044 (1990). Finally, the general purpose of the act has also been found to permit an agency to assert jurisdiction over land use distant from its jurisdictional boundaries. Mario v. Fairfield, supra, 171.

In all of these cases, the issue was whether the action of the commission pursuant to its regulations was permissible under the language of § 22a-42a. In each, the action of the commission was deemed not to conflict with the specific language of the act restricting the jurisdiction of commissions. Our Supreme Court has ruled that commissions can act pursuant to their regulations unless the “ordinance permits or licenses that which the statute forbids, or prohibits that which the statute authorizes; if so, there is a conflict. If, however, both the statute and the ordinance are prohibitory and the only difference is that the ordinance goes further in its prohibition than the statute, but not counter to the prohibition in the statute . . . there is no conflict.” Aaron v. Conservation Commission, supra, 183 Conn. 544. This test is founded on the principle that “[a] local ordinance, enacted pursuant to the police power, is not necessarily inconsistent with a state law on the same subject just because the ordinance provides higher standards than the statute.” Id., 543.

We now must apply the conflict test as enunciated in Aaron using the interpretation of § 22a-42a established by Aaron and its progeny. The plaintiffs assert that the regulations conflict because they permit the commission to exercise its jurisdiction without mapping and without complying with the notice and hearing provisions of the statute. We agree with the plaintiffs’ reading of the regulations. The commission’s regulations allow the commission to assert jurisdiction over any area, mapped or unmapped, that matches the descriptions provided. Further, the regulations permit the commission to alter its jurisdictional boundaries to include regulated areas that actually exist simply by declaratory ruling.

We cannot agree, however, with the plaintiffs that this regulatory scheme conflicts with § 22a-42a. The regulations enlarge the jurisdiction of the commission as granted by the statutes by including within its jurisdiction any area meeting the description of “regulated area.” Thus, any area within the town that meets the description in the regulations is a regulated area and has been since adoption of the regulations. The regulations merely require the commission to identify a piece of land as within the definition of a “regulated area” for the commission to assert its authority. It is clear that the regulations simply enlarge on, and do not conflict with, the statute.

Moreover, it is clear that the regulations further the broad legislative purpose of the wetlands act. As Aaron and its progeny establish, regulations that are reasonably designed to effectuate the legislative purpose do not conflict with the statute. See Mario v. Fairfield, supra, 217 Conn. 172; Lizotte v. Conservation Commission, supra, 216 Conn. 336-37; Aaron v. Conservation Commission, supra, 183 Conn. 543.

“Although we have recognized that the policy decision to protect wetlands and watercourses must be balanced against the productive use of privately owned land; Red Hill Coalition, Inc. v. Conservation Commission, [supra, 212 Conn. 719]; we have also indicated that this balancing process is more appropriately conducted in a legislative rather than a judicial setting. Thus, ‘[a]n agency which has the authority to enact regulations is vested with a large measure of discretion, and the burden of showing that the agency has acted improperly rests upon the one who asserts it.’ Aaron v. Conservation Commission, supra, [183 Conn. 537]; see Blue Sky Bar, Inc. v. Stratford, [203 Conn. 14, 23, 523 A.2d 467 (1987)]. ‘Every intendment is to be made in favor of the validity of the ordinance, and it is the duty of the court to sustain the ordinance unless its invalidity is established beyond a reasonable doubt.’ Connecticut Theatrical Corporation v. New Britain, 147 Conn. 546, 553, 163 A.2d 548 (1960); Blue Sky Bar, Inc. v. Stratford, supra [23]; Aaron v. Conservation Commission, supra [537].” Lizotte v. Conservation Commission, supra, 216 Conn. 336-37.

The similarity between the facts of this case and those in Aaron further undermine the plaintiffs’ argument. In Aaron, the plaintiffs challenged regulations that established the regulated area both by map and by definition. The regulations stated that “[i]n each instance . . . the actual character of the soil shall determine whether land in question is subject to regulations.” (Internal quotation marks omitted.) Aaron v. Conservation Commission, supra, 183 Conn. 546. Our Supreme Court upheld the regulations. “Because the same types of soil are being regulated, and because, in each instance, it is the type of soil which is determinative of whether certain land is a wetland, there is no conflict. This language does not expand the jurisdiction of the commission. While the statute defines ‘wetlands’ and how it can be determined, the language in § 1.16 implements the statutory purposes of the act by setting forth permissible standards to assist in determining, informationally, whether a particular location is the situs of a wetland.” Id.

In this case, the regulations establish the jurisdictional boundaries by map and by definition. In each instance, the character of the soil determines whether it falls under the commission’s jurisdiction. Therefore, the language implements the statutory purpose and does not impermissibly expand the commission’s jurisdiction.

Finally, we note that the plaintiffs argue for a literal reading of the statute. The plaintiffs’ argument is supported forcefully by the dissents in Lizotte v. Conservation Commission, supra, 216 Conn. 340-41 (Covello, J., dissenting) and Mario v. Fairfield, supra, 217 Conn. 180 (Covello and Callahan, Js., dissenting). That support, however, comes only in the form of dissent.

In this case, the regulations do not conflict with § 22a-42a; rather they enlarge on and are more comprehensive than the statute. We find that the regulations are not in conflict or in excess of the statutory authority but rather implement the statutory authority to effectuate the legislative purpose of protecting watercourses.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs are Frank E. Ahearn, trustee, and Mary I. Ahearn, beneficiary of the trust.

       The plaintiffs originally brought suit against the named defendant and Leslie Carothers, commissioner of the department of environmental protection. The plaintiffs withdrew their case against Carothers on May 15, 1992.

       General Statutes § 22a-42a (b) provides in pertinent part: “No regulations of an inland wetlands agency including boundaries of inland wetland and watercourse areas shall become effective or be established until after a public hearing in relation thereto is held by the inland wetlands agency, at which parties in interest and citizens shall have an opportunity to be heard. Notice of the time and place of such hearing shall be published in the form of a legal advertisement . . . before such hearing, and a copy of such proposed regulation or boundary shall be filed in the office of the town . . . clerk ... for public inspection .... Such regulations and inland wetland and watercourse boundaries may be from time to time amended, changed, repealed, by majority vote of the inland wetlands agency, after a public hearing in relation thereto is held by the inland wetlands agency, at which parties in interest and citizens shall have an opportunity to be heard and for which notice shall be published in the manner specified in this subsection. Regulations or boundaries or changes therein shall become effective at such time as is fixed by the inland wetlands agency, provided a copy of such regulation, boundary or change shall be filed in the office of the town . . . clerk .... Whenever an inland wetlands agency makes a change in regulations or boundaries it shall state upon its records the reason why the change was made and shall provide a copy of such regulation, boundary or change to the commissioner of environmental protection

       Section 3.1 of the South Windsor Inland Wetlands, Watercourses, and Conservation Regulations provides in pertinent part: “The Agency shall establish a boundary map which shall be entitled ‘Inland Wetlands and Watercourses, Town of South Windsor, Connecticut.’ . . - The regulated area, however, shall be that which actually exists and will be determined by a declaratory ruling of the Agency in accordance with the procedure herein set forth. . . .”

       Section 2.1 (q) of the South Windsor Inland Wetlands, Watercourses, and Conservation Regulations provides in pertinent part: “ ‘Regulated Area’ means all wetlands and watercourses in the Town of South Windsor as defined in these regulations; and all areas within forty (40) feet of the boundary of such wetlands or 80 feet of the boundary of such watercourses. Regulated areas are generally shown on a map ... on file in the Planning Department. The regulated area, however, shall be that which actually exists and will be determined by a declaratory ruling of the Agency in accordance with procedures herein set forth . . . .”

       Section 2.1 (w) of the South Windsor Inland Wetlands, Watercourses, and Conservation Regulations provides: “ ‘Watercourses’ means rivers, streams, brooks, waterways, lakes, ponds, marshes, swamps, bogs, and all other bodies of water, natural or artificial, public or private, vernal or intermittent, which are contained within, flow through, or border upon the Town of South Windsor or any portion thereof . . . .”

       Section 2.1 (j) of the South Windsor Inland Wetlands, Watercourses, and Conservation Regulations provides: “ ‘Intermittent Watercourse’ means those waterways characterized by non-persistent flow. For the purposes of these regulations, intermittent watercourses are delineated by one or more of the following characteristics: (1) A defined permanent channel with the evidence of scour or deposits of recent alluvium or detritus. (2) The presence of standing or flowing water for a duration longer than a particular storm incident. Ordinarily, the presence of water is supported by a component, however small, of groundwater outflow or exfiltration. (3) The presence of, or ability to support the growth of hydrophytes . . . .”

       General Statutes § 22a-37 provides: “Sections 22a-36 to 22a-45, inclusive, shall be known and may be cited as ‘The Inland Wetlands and Watercourses Act.’ ”

       General Statutes § 22a-42 provides in pertinent part: “(a) To carry out and effectuate the purposes and policies of sections 22a-36 to 22a-45, inclusive, it is hereby declared to be the public policy of the state to require municipal regulation of activities affecting the wetlands and watercourses within the territorial limits of the various municipalities or districts. . . .
      “(c) On or before July 1,1988, each municipality shall establish an inland wetlands agency or authorize an existing board or commission to carry out the provisions of sections 22a-36 to 22a-45, inclusive. Each municipality, acting through its legislative body, may authorize any board or commission, as may be by law authorized to act, or may establish a new board or commission to promulgate such regulations, in conformity with the regulations adopted by the commissioner pursuant to section 22a-39, as are necessary to protect the wetlands and watercourses within its territorial limits. . . .”


author: Hetman, J.

text:
    Helen Starkweather v. Devbala Patel Helen Starkweather v. Manchester Memorial Hospital Corporation
    (12357)
    Dupont, C. J., Landau and Heiman, Js.
    Argued February 24
    decision released May 17, 1994

      Steven B. Kaplan, for the appellant (plaintiff).

      Robert E. Riley, with whom were Lois B. Tanzer and, on the brief, Donna H. Ryan, law student intern, for the appellees (defendants).
   Hetman, J.

In this action seeking damages for alleged medical malpractice, the plaintiff appeals from the judgment of the trial court granting the defendants’ motions for summary judgment. The trial court rejected the plaintiff’s claim that the care afforded to her by the defendant Devbala Patel, a pathologist, was a continuous course of treatment commencing in November, 1985, and not terminating until August 15,1989. The defendants assert that there was no ongoing relationship between the plaintiff and Patel, and that the statute of limitations had expired at the time that suit was commenced.

The following facts are necessary for a proper resolution of this appeal. In November, 1985, the plaintiff sought treatment from a dermatologist for a small pigmented lesion on her left thigh. The dermatologist performed a biopsy and instructed the plaintiff to take the sample of tissue to the pathology laboratory located at the defendant Manchester Memorial Hospital. As instructed, the plaintiff took the tissue sample to the laboratory for a determination as to whether the lesion was benign or malignant. The plaintiff paid a fee for the services of the pathology department.

Patel is a physician licensed to practice medicine in Connecticut, and is a board certified anatomical pathologist, who, at all times relevant to this case, was an employee of the defendant hospital. Patel examined the tissue removed from the plaintiffs thigh on or about November 11, 1985, and issued a signed pathology-report that concluded that the sample tested constituted a “compound nevus.” The report thus indicated that the lesion was benign.

Relying on the conclusion by the pathologist that the lesion was benign, the plaintiff sought no further treatment. The dermatologist suggested no further action because he had confidence in Patel. The plaintiff returned to the dermatologist in July, 1988, for a routine checkup. At that time, she requested that the dermatologist examine the lesion on her thigh. Again, because of the 1985 pathology report, the dermatologist reassured the plaintiff that the lesion was a benign mole and recommended no additional treatment.

In July, 1989, the plaintiff visited the dermatologist and insisted that the lesion on her left thigh again be examined. The dermatologist again advised the plaintiff that, on the basis of the pathology report, no medical or surgical intervention was required. The mole, however, was removed for what the plaintiff understood were cosmetic reasons and sent to California for preparation of a tissue slide. When the slide was returned to the dermatologist, it was submitted to Patel for diagnosis.

On August 1,1989, Patel concluded from her examination of the tissue sample removed from the plaintiffs thigh, that the mole was a “malignant melanoma.” The pathology report prepared by Patel also indicated that upon subsequent review, the 1985 biopsy of the mole revealed the presence of “an atypical melanocytic hyperplasia,” rather than a compound nevus, as originally reported, a significantly different diagnosis than that originally made by Patel. This diagnosis was reported to the plaintiffs treating physician who informed the plaintiff.

Subsequent to the 1989 biopsy, the plaintiff underwent several surgical procedures for the removal of the cancerous growth. The second surgery required widening of the margins of tissue removed surrounding the melanoma. The lesion was much deeper and wider than in 1985. Additionally, the plaintiff was required to undergo removal of the lymph nodes in her groin and inguinal region as a prophylaxis against metastasis and recurrence of the melanoma.

The plaintiff commenced this action against Patel by writ, summons and complaint dated July 6, 1990, and served on her on July 12, 1990. The plaintiff commenced her action against the defendant hospital by writ, summons and complaint dated July 18, 1990, and served on the defendant hospital on the same date.

In her complaint, the plaintiff claimed an ongoing physician-patient relationship, as well as a continuing course of conduct. Both defendants filed special defenses alleging that the causes of action asserted by the plaintiff were barred by the expiration of the statute of limitations, General Statutes § 52-584.

The defendants both filed motions for summary judgment, each of which was granted by the trial court. In her affidavit in support of the motion for summary judgment, the defendant Patel attempted to negate the claim of the plaintiff that a physician-patient relationship ever existed. The trial court, although stating that the first issue to be resolved was whether a physician-patient relationship existed between the defendant Patel and the plaintiff, failed to determine whether that fact was in issue. The trial court also stated that if such a relationship was not in issue, a second determination of whether it was an ongoing relationship until 1989 must be made. Instead, without resolving the first issue, the trial court found, as a matter of law, that no ongoing relationship existed that would toll the statute of limitations. In short, the trial court found that the issue of an ongoing relationship was not a matter of fact in this case, but was a matter of law, without having first determined that no factual issue existed as to the nature of the relationship among the parties. This appeal followed, and we reverse the judgment of the trial court.

Although the plaintiff appears to raise a number of separate issues on appeal, except as noted the issues all appear to be variations on the theme that the trial court improperly granted summary judgment by imposing a factual finding as a matter of law. We point out, however, that the trial court failed to recognize the existence of the threshold question of disputed fact, whether any physician-patient relationship existed, an issue that must be factually resolved before the trial court can reach the question of the nature of the duty incurred by Patel because of that relationship or the existence of an ongoing relationship.

We begin our analysis by once again stating the standard by which we review the decision of the trial court in granting a motion for summary judgment. Practice Book § 384 provides that summary judgment “shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” See Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105, 639 A.2d 507 (1994); Dolnack v. Metro-North Commuter Railroad Co., 33 Conn. App. 832, 834-35, 639 A.2d 530 (1994); Gabrielle v. Hospital of St. Raphael, 33 Conn. App. 378, 382-83, 635 A.2d 1232, cert. denied, 228 Conn. 928, 640 A.2d 115 (1994). Even though the burden of showing the nonexistence of any material fact is on the party that seeks summary judgment, “the party opposing [summary judgment] must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.” Suarez v. Dick mont Plastics Corp., supra, 105; Danziger v. Shaknaitis, 33 Conn. App. 6, 9, 632 A.2d 1130 (1993), cert. granted on other grounds, 228 Conn. 914, 635 A.2d 846 (1994); see also Gabrielle v. Hospital of St. Raphael, supra, 383. When called on to decide a motion for summary judgment, the trial court is required to construe the evidence in the light most favorable to the nonmoving party. Suarez v. Dickmont Plastics Corp., supra, 105; Gabrielle v. Hospital of St. Raphael, supra, 383. The test to be applied by the trial court is whether, on the same facts, a party would be entitled to a directed verdict. Suarez v. Dickmont Plastics Corp., supra, 105-106; Gabrielle v. Hospital of St. Raphael, supra, 383; Cortes v. Cotton, 31 Conn. App. 569, 573, 626 A.2d 1306 (1993).

“[I]n order [t]o support a finding of a continuous course of conduct that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong. . . . Where we have upheld a finding that a duty continued to exist after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act.” (Internal quotation marks omitted.) Blanchette v. Barrett, 229 Conn. 256, 275, 640 A.2d 74 (1994); see Cross v. Huttenlocher, 185 Conn. 390, 400, 440 A.2d 952 (1981). The continuous course of conduct doctrine requires that three requirements be met: (1) an ongoing physician-patient relationship; (2) negligence by the defendant; and (3) some form of conduct that continued beyond the initial treatment. Blanchette v. Barrett, supra, 278. These requirements are “conspicuously fact-bound.” Id., 276. “The determination of whether the physician-patient relationship has terminated depends upon several factors. These factors include the subjective views of the parties as to whether their relationship had terminated; the length of their relationship; the frequency of their interactions; the nature of the physician’s practice; whether the physician had prescribed a course of treatment for or was monitoring the condition of the patient; whether the patient was relying upon the opinion and advice of the physician with regard to a particular injury, illness or medical condition; and whether the patient had begun to consult with another physician concerning the same injury, illness or medical condition.” (Emphasis added.) Id., 278. Therefore, there exists an issue of material fact as to whether the relationship between the plaintiff and Patel was a physician-patient relationship and whether such relationship was ongoing. Thus, the trial court improperly granted summary judgment.

The judgments are reversed and the case is remanded with direction to deny the motions for summary judgment and for further proceedings.

In this opinion the other judges concurred.

       The defendants in this action are Devbala Patel, a pathologist, and Manchester Memorial Hospital Corporation. The original actions were brought against each defendant separately and were subsequently consolidated.

       An anatomical pathologist is a physician who examines and diagnoses tissue specimens.

       A compound nevus is a “common mole.”

       The claim made against the defendant hospital in the first count implicates the hospital’s liability under the doctrine of respondeat superior. In the second count against the hospital, the plaintiff alleges a breach of an implied agreement and warranty that the hospital’s agents or employees, including Patel, would act in accordance with the requisite standard of care. Thus, no separate acts of corporate negligence are alleged against the hospital.

       General Statutes § 52-584 provides: “No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanitorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.”

       The plaintiff sets forth the following issues in her brief:
      “1. Whether the trial court erred in its application of General Statutes § 52-584?
      “2. Whether the trial court erred by failing to find that the statute of limitations in General Statutes § 52-584 was tolled by a continuing course of conduct and/or an ongoing physician-patient relationship?

        “3. Whether the trial court erred in applying the statute of limitations in General Statutes § 52-584 to this case in derogation of plaintiff’s rights under article first, § 10 of the Connecticut constitution?
      “4. WTiether the trial court erred in applying the statute of limitations in General Statutes § 52-584 to this case in derogation of plaintiff’s rights under article first, § 20 of the Connecticut constitution and Section One, Amendment XIV, of the United States Constitution?
      “5. Whether the trial court erred in failing to find that the six year statute of limitations set forth in General Statutes § 52-576 precluded the entry of summary judgment?”
      We also note that at oral argument counsel for the plaintiff conceded that the third and fourth issues were not raised before the trial court. Although not asserted in the brief, at oral argument the plaintiff claimed that these two claims were reviewable under the rubric of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). In light of our resolution of the claim that the trial court improperly granted summary judgment, we do not reach the issue of the reviewability of these claims.


author: Cretella, J. O’Connell, J.,

text:
    John Jago-Ford et al. v. Planning and Zoning Commission of the Town of Madison
    (12109)
    O’Connell, Foti and Cretella, Js.

      Argued October 28, 1993
    decision released May 17, 1994

      Thomas M. Conroy, for the appellants (plaintiffs).

      John B. Oestreicher, for the appellee (defendant John Nedobity, Inc.).
   Cretella, J.

The named defendant, the Madison planning and zoning commission, approved a proposed location for an automobile junkyard pursuant to General Statutes § 14-67g et seq. The plaintiffs, adjoining landowners, appeal from the trial court’s judgment dismissing their appeal from the commission’s approval. The plaintiffs claim that the trial court improperly held that a commission member, who was absent during two of the three public hearings on the application, had sufficiently acquainted himself with the file to make an informed decision on the application. We affirm the judgment of the trial court.

The relevant facts are as follows. On October 30, 1991, the defendant John Nedobity, Inc., filed an application with the commission for a certificate of approval of a motor vehicle junkyard at 238 County Road in Madison. Pursuant to General Statutes §§ 14-67Í and 14-67k, the commission considered the application at public hearings on January 16, February 20, and April 2,1992. At the outset of the April 2 hearing, the attorney for the applicant noted that the commission had changed personnel from hearing to hearing and that Victor Kiem, in particular, was one commission member who was not present at the January 16 or February 20 hearings. Accordingly, the attorney requested that any members of the commission who had not attended the previous meetings refrain from voting on the application unless they had familiarized themselves with the entire file by listening to the tapes of the previous hearings or by reviewing the documents submitted at those hearings so there would be no basis for an appeal.

First, a petition by neighbors against the application was read into the record. Then, a discussion ensued concerning the suitability of the site. Prior to a vote on the application, Kiem indicated that he would abstain from voting on the matter for the reasons cited by the applicant’s attorney.

There was then further discussion on the application after which the chairman of the commission stated that it was time to vote. A motion was made to deny the application. Three of the seven commission members present at the meeting voted to deny the application and three voted for its approval. The chairman then stated that the motion to deny the application failed to pass on the tie vote. See Merlo v. Planning & Zoning Commission, 196 Conn. 676, 682-83, 495 A.2d 268 (1985) (failure of application to garner enough votes for its approval amounts to rejection of application); see also Hall v. Planning & Zoning Board, 153 Conn. 574, 576, 219 A.2d 445 (1966). The chairman then presented the seven commission members with the available options to resolve the deadlock: (1) the commission could postpone the decision until either Kiem or the other two absent commission members had read the file and familiarized themselves with it, so as to cast informed votes; or (2) the six members who had voted could attempt to change each others’ minds.

Approximately twenty minutes after he had recused himself, Kiem stated that after thoughtful consideration and in good conscience, he felt qualified to vote on the application. Kiem explained that he had abstained because of the earlier remarks by the applicant’s attorney and because he did not want the decision on the application to be challenged if he participated in the voting process. Kiem stated that he had read the minutes and familiarized himself with the case, but he had not listened to the tapes of the previous hearings. Kiem claimed that the minutes, although not extremely detailed, adequately apprised him of the information in the file. Moreover, his presence at the April 2 hearing, where additional discussion about the application took place, further familiarized him with the plaintiffs’ concerns. Thus, with the approval of the chairman, Kiem was permitted to vote. A motion to approve the application carried by a vote of four to three.

The plaintiffs appealed to the Superior Court, claiming that Kiem should not have voted on the application because he had not familiarized himself with the prior proceedings. The trial court stated that “[t]he determination by a commission member as to his familiarity with the subject matter under consideration so as to properly allow him to participate in the voting process is not subject to evaluation by the court absent extrinsic evidence to the contrary.” The trial court further found that “[Kiem] concluded that he felt he was qualified to vote on the question for reasons stated on the record and consequently the court must accept that conclusion.”

The plaintiffs now claim that the vote of commission member Kiem, who was absent during two of the three public hearings on the application, was invalid because Kiem did not sufficiently acquaint himself with the issues raised and the evidence and arguments presented at those hearings to make an informed decision on the application. General Statutes § 14-67k authorizes the local zoning commission to hold a public hearing on the application for a certificate of approval of the location of an automobile junkyard. Although a commission member in an administrative hearing need not be present at the public hearing as a condition precedent for that member to vote on the application, an absent commission member must at least acquaint “himself sufficiently with the issues raised and the evidence and arguments presented at the public hearing in order to make an informed judgment.” Loh v. Town Plan & Zoning Commission, 161 Conn. 32, 42, 282 A.2d 894 (1971); see also Dana-Robin Corp. v. Common Council, 166 Conn. 207, 217, 348 A.2d 560 (1974); New Haven v. Public Utilities Commission, 165 Conn. 687, 724, 345 A.2d 563 (1974). “Whether such a member has discharged his obligation to acquaint himself is in the first instance a question of fact for the trial court. See, e.g., Dana-Robin Corp. v. Common Council, supra [217]. The factual finding of the trial court on this issue must stand unless it is clearly erroneous. Holy Trinity Church of God in Christ v. Aetna Casualty & Surety Co., 214 Conn. 216, 223, 571 A.2d 107 (1990).” Lauer v. Zoning Commission, 220 Conn. 455, 470, 600 A.2d 310 (1991). We cannot retry the facts or pass on the credibility of the witnesses. Dalia v. Lawrence, 226 Conn. 51, 71, 627 A.2d 392 (1993). “A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . .” (Citations omitted; internal quotation marks omitted.) Id.; Rosick v. Equipment Maintenance & Service, Inc., 33 Conn. App. 25, 41, 632 A.2d 1134 (1993); Central Connecticut Teachers Federal Credit Union v. Grant, 27 Conn. App. 435, 437-38, 606 A.2d 729 (1992). The record adequately supports the trial court’s conclusion that Kiem had sufficiently familiarized himself with the issues raised and the evidence presented at the prior proceedings and thus was qualified to vote on the application. We conclude, therefore, that the trial court’s finding is not clearly erroneous.

Furthermore, the trial court concluded that the plaintiffs did not meet their burden of proving that Kiem’s participation in the commission’s decision to grant the application vitiated the entire vote of the commission because the record indicates that the plaintiffs have not sustained the burden of proving that his vote was unlawful. The party challenging the legality of the action of the commission has the burden of proof. Lauer v. Zoning Commission, supra, 220 Conn. 470; Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707, 535 A.2d 799 (1988); Baron v. Planning & Zoning Commission, 22 Conn. App. 255, 257, 576 A.2d 589 (1990).

The record reveals that although Kiem was not present at two of the three hearings on the application, he had read the minutes and pertinent documentation from those hearings and received an update on the application at the beginning of the April 2 hearing where further discussion took place. The plaintiffs relied solely on the minutes and tapes as evidence to support a finding that Kiem did not acquaint himself with the January 16 and February 20 hearings. The trial court found that such reliance was not sufficient to sustain the plaintiffs burden of proof.

The judgment is affirmed.

In this opinion Foti, J., concurred.

O’Connell, J.,

dissenting. I am unable to agree with the majority’s application of the law to the facts of this case. My review of the record discloses that the minutes of the April 2 hearing are in error in one very important respect. It appears from the minutes that it was at the commencement of the hearing that Kiem, the commissioner in question, stated that he would abstain from voting on the plaintiff’s application because he had missed the previous hearings and had not listened to the tapes. If this were the state of affairs, an argument could be made that after listening to everything that then took place at that evening’s hearing, Kiem changed his mind and felt sufficiently familiar with the application to vote on it.

This was not the chronology of events, however. It was at the conclusion of the April 2 hearing that Kiem declared that he would abstain because of his prior absences. Kiem’s decision to abstain was made after he heard extensive argument against the plaintiff’s application from neighbors and further discussion on the appropriateness of the site. This was also after he had read the related “documents” and the minutes of the prior hearings. Kiem apparently did not feel that the evening’s discussion plus his prior readings were sufficient to acquaint him adequately with the matter so that he could vote.

Following Kiem’s declination to vote, the application was defeated by a tie vote. Without receiving any additional material to familiarize himself, Kiem is struck with remarkable prescience and now feels that he is sufficiently acquainted with the matter to vote. I am unable to determine the source of this ex post facto familiarization.

Kiem properly concluded that the minutes did not assist him. Examination of the minutes discloses that they are mostly summary and can hardly be a basis for informing an absent commissioner of what was said. For instance, at the January 16 hearing the minutes reported, inter alia, that certain named individuals spoke “in favor of the application” and certain other named individuals spoke “against the proposal.” Aside from providing a list of the names of speakers for that evening, the minutes give no indication of the substance of the speakers’ remarks. The minutes of the February 20 meeting also reflect, without articulation, that people spoke both for and against the application. They also reflect that, although at least one question was asked concerning well pollution, the answer was not included. I do not believe that these summary statements can adequately apprise an absent member of even the general substance of the comments made during the hearings without the absent member’s additionally listening to the verbatim tapes of the hearing. Kiem admitted that he had not listened to the tapes of the previous hearings.

I concur that the law is that “[wjhether such a member has discharged his obligation to acquaint himself is in the first instance a question of fact for the trial court. . . . The factual finding of the trial court on this issue must stand unless it is clearly erroneous.” (Internal citation omitted.) Lauer v. Zoning Commission, 220 Conn. 455, 470, 600 A.2d 310 (1991). It is also axiomatic that “[a] finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.” (Citations omitted; emphasis added.) Dalia v. Lawrence, 226 Conn. 51, 71, 627 A.2d 392 (1993); Rosick v. Equipment Maintenance & Service, Inc., 33 Conn. App. 25, 41, 632 A.2d 1134 (1993).

In this case, Kiem stated unequivocally that despite studying the documentation associated with the plaintiff’s application, reading the minutes of the prior hearings, and sitting through the April 2 hearing, he was not sufficiently acquainted with the application to vote on it. If the scenario ended at that point, the trial court’s ruling would have been erroneous because no one knew better than Kiem himself whether he was sufficiently informed to vote.

The record does not end at that point, however, and the trial court could properly consider any evidence of further familiarization by Kiem. The record is devoid, however, of any further familiarization by Kiem. All that takes place is the vote and resulting tie. I cannot conclude that this supplied a factual basis for a finding of familiarization by the trial court. To me it suggests only a possibility that Kiem was influenced by the vote of the other commissioners. Because the record in this case demonstrates that Kiem was not sufficiently familiar with the record so as to make an informed judgment; Pet v. Dept. of Health Services, 228 Conn. 651, 682, 638 A.2d 6 (1994); Watson v. Howard, 138 Conn. 464, 86 A.2d 67 (1952); I am left with a definite and firm conviction that a mistake has been committed. Dalia v. Lawrence, supra, 226 Conn. 71; Rosick v. Equipment Maintenance & Service, Inc., supra, 33 Conn. App. 41. The plaintiff sustained his burden of proving that the vote of the commission was illegal, and the trial court abused its discretion in holding otherwise.

I would remand the case to the trial court with instruction to sustain the appeal.

       General Statutes § 14-67Í (a) provides in pertinent part: “No person, firm or corporation shall establish, operate or maintain a motor vehicle junk yard . . . unless a certificate of approval of the location to be used therefor has been procured from . . . the zoning commission [of the town], certifying that such location is suitable for the proposed use . . . .”
      General Statutes § 14-67k provides for a written application for a certificate of approval and a hearing on such application by the town zoning commission.

       Kiem stated, “I have read all background papers that have been sent to me. I haven’t listened to the tapes so I didn’t hear the full proceedings, but did feel, I read the statements and so on and felt I was pretty familiar with it and do have a position on this.”
      He also stated, “I did familiarize myself to the best of my ability without having heard the tapes but I did familiarize myself with the written documentation but I found this meeting tonight was very illuminating from both sides and having been rather perplexed up to this point now I feel quite clear about it. I would like to withdraw my abstention.”
      He also informed the commission members that he had read the minutes prior to the hearing.

       The plaintiffs incorrectly interpreted the events of the April 2 hearing. They argue that only two minutes passed between Kiem’s recusing himself and when he withdrew his abstention. The plaintiffs contend that it was during this two minute interval that Kiem first acquainted himself with the case file by reading the minutes of the January 16 and February 20 hearings. A review of the record reveals that the plaintiffs’ characterization of the April 2 hearing is incorrect.
      Kiem had read the minutes of the prior proceedings and reviewed the documents sent to him by the chairman before attending the April 2 hearing. Furthermore, the tapes indicate that a period of twenty minutes passed between the time Kiem recused himself and the time he withdrew his abstention.

       Prior to the actual vote, the application was discussed among the board members for approximately eighteen additional minutes. There is no evidence that Kiem used this additional time to familiarize himself with any portion of the record.


author: O’Connell, J.

text:
    State of Connecticut v. Jerome Moore
    (11833)
    Dupont, C. J., O’Connell and Heiman, Js.

      Argued February 22
    decision released May 17, 1994

      Lauren Weisfeld, assistant public defender, for the appellant (defendant).

      Carolyn K. Longstreth, assistant state’s attorney, with whom were Maureen Keegan, assistant state’s attorney, and John Connelly, state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from his conviction, after a jury trial, of possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (a) and possession of marijuana with intent to sell in violation of General Statutes § 21a-277 (b). The defendant claims that the trial court (1) improperly allowed expert testimony on the ultimate issue, (2) improperly gave the Chip Smith charge, and (3) improperly instructed on reasonable doubt.

The jury reasonably could have found that on June 25,1991, the Waterbury police received a report that someone was selling narcotics in front of 46 Harris Circle. Three uniformed officers were sent to the location where they found three or four males standing near a fire escape. As the officers approached, the group started to disperse and the defendant dropped a crumpled brown paper bag. The bag contained nine plastic bags of a substance that tested to be marijuana and thirty small plastic bags of a substance that tested to be crack cocaine. The police searched the defendant’s pockets and found $196.

I

At trial, Sergeant Edward Stephens of the Waterbury police department qualified as a narcotics expert, including having expert knowledge of the quantities of drugs typically possessed by people who buy them for personal use as compared to those who sell them. Stephens testified that a crack cocaine user usually bought only one or two bags and the typical marijuana user bought one to three bags. Stephens was not involved in the investigation of the case and testified solely concerning the usual course of narcotics activity in Waterbury.

On appeal, the defendant argues that Stephen’s testimony constituted expert testimony on the ultimate issue of the case and, therefore, was improperly admitted. The defendant did not raise this objection at trial. Such failure is contrary to the fundamental rule that in order to have appellate review an objection must be raised at trial. Practice Book § 4185. The defendant now seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The defendant’s attempt at Golding review is defeated by his failure to satisfy the second and third Golding prongs.

Our Supreme Court has repeatedly held that challenges to trial court rulings admitting this type of police narcotics expert testimony are evidentiary in nature, rather than constitutional. State v. Walton, 227 Conn. 32, 61, 630 A.2d 990 (1993); State v. Campbell, 225 Conn. 650, 657, 626 A.2d 287 (1993); State v. Vilalastra, 207 Conn. 35, 46, 540 A.2d 42 (1988). Accordingly, the defendant fails to satisfy the second Golding prong requiring that the claim be of constitutional magnitude alleging the violation of a fundamental right.

Even if the claim had been of constitutional magnitude, the defendant has failed to demonstrate, under the third Golding prong, that the alleged violation clearly exists. Numerous cases hold that an expert witness may testify as to the ultimate issue when the question is outside the scope of common knowledge shared by average jurors and the expert’s opinion would assist the jury in making an intelligent finding on the issue. State v. Vilalastra, supra, 207 Conn. 41; State v. Johnson, 140 Conn. 560, 563, 102 A.2d 359 (1954); State v. Holeman, 18 Conn. App. 175, 178-79, 556 A.2d 1052 (1989); State v. Nelson, 17 Conn. App. 556, 565, 555 A.2d 426 (1989). The significance of the quantity of narcotics found on a suspect is not within the common knowledge of the average juror and, therefore, is a proper subject of expert testimony. See State v. Holeman, supra, 179.

The defendant also seeks review as plain error under Practice Book § 4185. Review under the plain error doctrine “ ‘is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.’ ” State v. Miller, 202 Conn. 463, 469, 522 A.2d 249 (1987). The defendant’s claim does not rise to the magnitude of plain error and we decline to review it under that doctrine.

II

The defendant next complains that the trial court’s Chip Smith charge was improper because it was (1) inherently coercive and (2) given twice. The record discloses that jury deliberations commenced at 2:05 p.m. on May 5,1992. For reasons unrelated to this case, the jurors were excused for the day at 3:45 p.m. The following morning, the jurors twice requested that testimony be read to them. At 12:55 p.m., the jury sent the court a note stating that it could not reach a unanimous verdict. At that point, the total jury deliberation time, excluding the reading of testimony, was approximately three hours and fifteen minutes. The court addressed the jurors and asked that they return after lunch and resume their deliberations. At about 3:50 p.m. the jury sent the court another note, which stated: “Your Honor, each juror is adamant in his/her decision. There has not been a change since the start of deliberations. We feel strongly that a unanimous decision cannot be reached.” The court then gave the jury a Chip Smith charge. See State v. Smith, 49 Conn. 376, 386 (1881). Twenty-five minutes later the jury returned guilty verdicts on each count.

The defendant complains about the substance of the Chip Smith charge given at 3:50 p.m. Moreover, he complains that this was the second time a Chip Smith charge was given. He argues that the charges violated his right to due process of law and his right to a fair trial by an uncoerced jury as guaranteed by the sixth and fourteenth amendments to the United States constitution, and article first of the Connecticut constitution.

We first address the attack on the substance of the Chip Smith charge, which is designed to assist a jury in breaking an impasse in its deliberations and which has been consistently upheld by our Supreme Court. State v. Pinnock, 220 Conn. 765, 793-96, 601 A.2d 521 (1992); State v. Ryerson, 201 Conn. 333, 349, 514 A.2d 337 (1986); State v. Stankowski, 184 Conn. 121, 141-46, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981). A similar jury instruction, known as an Allen charge, is utilized in the federal courts. See Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896). The charge as given in this case was fair and did not favor either the state or the defendant. Accordingly, we reject the defendant’s claim that the Chip Smith charge as given at 3:50 p.m. was inherently coercive.

We turn now to the defendant’s claim that the Chip Smith charge was particularly coercive in the present case because it was given twice. The fallacy in the defendant’s argument is that the record does not show that the trial court gave the Chip Smith charge more than once. The defendant argues that the court’s remarks to the jury before the luncheon recess constituted a Chip Smith charge. We are not persuaded. The thrust of those comments was not to change any juror’s attitude or approach to the deliberations. It was simply a remark that in the court’s experience it was too soon to declare a deadlock. We conclude that even if it had significance, the defendant did not establish that the court gave the Chip Smith charge after the jury's initial deadlock.

Additionally, we note that our attention has not been called to any authority that prohibits giving a Chip Smith charge more than once. Although decisions as reported do not disclose whether the charge was given twice, the Supreme Court and this court have approved cases in which the jury has been returned at least twice for reconsideration, after reporting inability to reach a unanimous decision. See State v. Bradley, 134 Conn. 102, 112, 55 A.2d 114 (1947), cert. denied, 333 U.S. 827, 68 S. Ct. 453, 92 L. Ed. 112 (1948); State v. Cianflone, 98 Conn. 454, 462, 120 A. 347 (1923); State v. Colon, 28 Conn. App. 231, 244, 611 A.2d 902 (1992).

Ill

The defendant does not pursue his last claim that the trial court’s jury instruction on reasonable doubt violated his right to due process of law under the fifth and fourteenth amendments to the United States constitution, and article first, § 8, of the Connecticut constitution. The instruction involved has been held not to be constitutionally defective. State v. DePastino, 228 Conn. 552, 573, 638 A.2d 578 (1994).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-277 (a) provides in pertinent part: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marijuana, or a narcotic substance . . . shall be imprisoned not more than fifteen years and may be find not more than fifty thousand dollars or be both fined and imprisoned . . . .”

       General Statutes § 21a-277 (b) provides in pertinent part: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with intent to sell or dispense, possesses with intent to sell or dispense, offers, gives or administers to another person any controlled substance, except a narcotic substance, or a hallucinogenic substance other than marijuana . . . may, for the first offense, be fined not more than twenty-five thousand dollars or be imprisoned not more than seven years or be both fined and imprisoned . . . .”

       The testimony of Stephens regarding this matter was as follows:
      “Q. [I]n your experience, have you ever known of someone that had thirty
      bags of crack, nine bags of marijuana within a bag similar to state’s exhibit four, that brown paper bag on their person, and it was just for personal use?
      “A. No, you’d never find that.
      “Q. Why wouldn’t you find somebody with thirty bags of crack for personal use?
      “A. If they have the crack on them, because of the addiction of it, they’re going to be smoking it. If a user has thirty bags, he’s going to be sitting somewhere smoking those thirty bags . . . .You’d never find them hanging around. Most of the time you’ll see buyers drive right away from buying it, stop down the street and smoke it right then and there. They don’t like to save it for later on, never. They’ll carry their crack pipes right with them.
      “Q. Do you have an opinion then if there was a person that had thirty bags of crack and nine bags of marijuana on their person, whether it would be for personal use or for sale?
      “A. My opinion is definitely for sale.
      “Q. Why is that?
      “A. They’re not going to be, like I said, standing around with it, with the crack just hanging out. They’re going to be smoking it, a user would.”

       Practice Book § 4185 provides in pertinent part: “The court on appeal shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interest of justice notice plain error not brought to the attention of the trial court. . . .”

       Under State v. Golding, supra, 213 Conn. 239-40, the defendant can prevail on an unpreserved claim “only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.)

       See footnote 4.

       Before adjourning for lunch, the court made the following statement: “Ladies and gentlemen, it’s almost one o’clock. So I’m going to excuse you for lunch and have you come back at two o’clock and resume your deliberations. I do have your note, and I understand that there is some difficulty you have encountered in reaching a unanimous verdict. I want you to give it some further effort. You really haven’t been deliberating that long. It may seem like it. It’s easy for me to say because I’m not in that little room with you, but, from my experience, I can tell you [that you] really haven’t spent a great deal of time in your deliberations, although I’m sure you have tried hard to reach unanimous accord. In any event, I do want you to resume your deliberations at two o’clock . . . .”

       The Chip Smith charge given by the trial court was as follows: “Ladies and gentlemen, I have received your note signed by the foreperson. And I understand by that note that you’re having great difficulty reaching a unanimous verdict and there is some belief that you’re not going to be able to do that. It does happen that juries have problems, difficulty in reaching a unanimous decision. It happens at times, but fortunately not too often. And often when there is an initial inability to reach an accord, the court will give the jury a supplemental instruction and ask the jury to retire, having heard the supplemental instruction, and make a further effort to reach a decision. And that’s what I’m going to do. I’m going to give you that instruction at this time and ask you again, if you would please, to try to come to a decision, if you can. If it’s not possible to do that, I assume that we’ll hear again from you. But I want you to pay attention to what I have to say. And at the conclusion, I’ll ask you to retire and to resume your deliberations.
      “Although the verdict to which each juror agrees must, of course, be his or her own conclusion and not a mere acquiescence in the conclusions of your fellow jurors, yet in order to bring six minds to a unanimous result, the jurors should examine with candor the issues before them with due regard and deference to the opinions of each other.
      “In conferring together, the jury ought to pay proper respect to each other’s opinion and listen attentively to each other’s arguments. If a larger number of the panel are for a particular verdict, a dissenting juror should consider why his own conclusion is one which makes no impression upon the minds of so many other jurors, equally honest, equally intelligent, who have heard the same evidence with the same attention and with an equal desire to arrive at the truth and understand the sanction of the same oath.
      “The minority, if there is a minority, ought seriously to ask themselves whether they may not reasonably doubt their conclusions as to a decision which is not concurred in by a larger number of those with whom they are associated and at the same time distrust the weight or sufficiency of that evidence which fails to be persuasive in the minds of a larger number, if there is a number, of their fellow jurors. So with that supplemental instruction, I’m going to ask you to resume your deliberations, and we’ll await word from you.’’

       See footnote 7.