author: Foti, J.

text:
    State of Connecticut v. Darrell Holeman
    (6545)
    Borden, Daly and Foti, Js.
    Argued January 31
    decision released April 18, 1989

      Bruce A. Sturman, public defender, for the appellant (defendant).

      RitaM. Shair, deputy assistant state’s attorney, with whom, on the brief, were, C. Robert Satti, Sr., state’s attorney, and John Cocheo, assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from a judgment of conviction, rendered after a jury trial, of possession of heroin with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b). The defendant claims that the trial court erred (1) in allowing opinion testimony as to the ultimate issue of intent to sell, and (2) in excluding evidence as to a third party’s culpability. We find no error.

The jury could reasonably have found the following facts. On March 13,1987, at approximately 9 a.m., Officer William Discordia of the New London police department’s drug enforcement unit received an anonymous phone call that prompted him to conduct a surveillance, from his third floor office in the police department, of an apartment complex approximately 600 feet away at 65 Federal Street. The apartment complex is known by the New London police for its high incidence of drug related activity. With the aid of binoculars, Discordia watched the area for approximately one hour and fifteen minutes. During that time, he observed two men, whom he recognized to be the defendant and James Holder, standing next to each other. During the course of the surveillance, several unnamed individuals approached Holder, gave him an item and then walked over to the defendant, who gave them an item. Several times the defendant walked to a building approximately ten feet from where he and Holder had been standing and placed an unidentifiable object on the ground near a doorway. No one other than the defendant was observed in the area near the doorway.

On the basis of his narcotics training and experience, Discordia believed that the two were engaged in the sale of narcotics. Discordia enlisted the aid of Officer Michael Gaska and, when Discordia observed the defendant again walk over to the building and deposit something on the ground, the two officers left the department and ran across the street to retrieve the item. It took the officers approximately five minutes to traverse the distance between the department and the scene. The defendant and Holder were out of the officers’ sight for approximately two minutes. Gaska detained the defendant and Holder while Discordia searched the area. Discordia’s search uncovered a black magnetic key case attached to a drain pipe. The case contained two glassine envelopes stamped “Blue Thunder” which contained white powder. The white powder was field tested and determined to be heroin. A subsequent state toxicology test confirmed the field test. The defendant and Holder were arrested and a search of the two resulted in the seizure of $138 from the defendant and $1336 from Holder.

I

The defendant first claims that the trial court erred in permitting Discordia to testify as an expert concerning the significance of the manner in which the defendant and Holder had folded the money seized. The defendant argues that this testimony was irrelevant and impinged on the jury’s function to determine the ultimate issue of the defendant’s intent to sell. We disagree.

Discordia testified that he had seized $1336 from Holder and $138 from the defendant. The money was divided into individual packets of $100. Each grouping of $100 was folded over once, and then “layered” on top of the other. The remaining bills were grouped together. The entire bundle was held together with a rubber band. The state’s attorney asked Discordia whether the manner in which the money had been folded had any special significance. Discordia responded: “In the past during my investigations and drug arrests, I have found drug dealers with large sums of money like that in individual hundreds for their fast use of changing money, knowing where their — knowing how much they have at hand quickly, all indicated to me that it was drug money.”

The defendant does not challenge the trial court’s preliminary determination that Discordia was qualified to testify as an expert. Rather, the defendant first contends that Discordia’s testimony was not reflective of a special knowledge or skill that went beyond the knowledge of the average juror. We find this argument without merit.

“Generally, expert testimony is admissible if (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues.” State v. Kemp, 199 Conn. 473, 476, 507 A.2d 1387 (1986); State v. Dumlao, 3 Conn. App. 607, 609-10, 491 A.2d 404 (1985). When an expert opinion arguably goes to the ultimate issue, it is properly permitted when the trial court determines that the jury requires assistance in making an intelligent finding on the issue. State v. Vilalastra, 207 Conn. 35, 41, 540 A.2d 42 (1988). The trial court has wide discretion in ruling on the admissibility of an expert opinion and the trial court’s decision will not be disturbed absent an abuse of discretion. Id., 45; State v. Kemp, supra.

The quantity of money seized from a defendant and the manner in which that money was folded or “layered” is relevant to the issue of intent to sell. See State v. Ruth, 16 Conn. App. 148, 155, 547 A.2d 548 (1988); State v. Uribe, 14 Conn. App. 388, 393-94, 540 A.2d 1081 (1988). It cannot be assumed, as the defendant contends, that information relating to the manner in which drug dealers layer money and the reasons for doing so is within the common knowledge of the average juror. See State v. Grayton, 163 Conn. 104, 111, 302 A.2d 246, cert. denied, 409 U.S. 1045, 93 S. Ct. 542, 34 L. Ed. 2d 495 (1972). Furthermore, such evidence is commonly admitted as circumstantial evidence of a defendant’s intent to sell. State v. Ruth, supra; State v. Uribe, supra. We conclude that in finding that Discordia’s testimony was relevant and would aid the jury, the trial court acted within its discretion.

The defendant next maintains that Discordia’s testimony allowed the jury to infer that the money in this case was earned from selling heroin. This testimony, he claims, impinged on the jury’s role to determine the ultimate issue of intent to sell.

We have recently had the occasion to review this issue. “As a general principle, ‘[a]n expert witness may not express an opinion on an ultimate issue of fact, which must be decided by the trier of fact. State v. Donahue, 141 Conn. 656, 667, 109 A.2d 364 (1954), appeal dismissed and cert. denied, 349 U.S. 926, 75 S. Ct. 775, 99 L. Ed. 1257 (1955). “Experts can [however,] sometimes give an opinion on an ultimate issue where the trier, in order to make intelligent findings, needs expert assistance on the precise question on which it must pass. State v. Johnson, 140 Conn. 560, 563, 102 A.2d 359 (1954).” ’ State v. Vilalastra, [supra, 41]. A trial court has broad discretion in admitting ‘expert testimony concerning the sale of illicit drugs.’ Id., 45.” State v. Nelson, 17 Conn. App. 556, 564-65, 555 A.2d 426 (1989).

In State v. Vilalastra, supra, the Supreme Court distinguished between expert opinions that relate to the defendant directly, which are improper, and opinions that relate to the custom and trade of drug traffickers generally, which are entirely proper. Therefore, although it is improper for the state to elicit testimony from an expert as to whether the defendant was a seller or user of drugs, “it is wholly appropriate to inquire into the custom and practice of narcotics traffickers generally.” State v. Nelson, supra, 566.

The defendant contends that Discordia’s statement that “all indicated to me that was drug money,” referred to the money in this case rather than money generally and, therefore, his testimony crossed the line of proper inquiry. We disagree with the defendant’s interpretation of Discordia’s testimony and conclude that the trial court could have reasonably found, taking Discordia’s testimony in context, that he was referring to drug trafficking generally. The assistant state’s attorney, therefore, did not elicit, nor did Discordia volunteer, an opinion as to the ultimate issue in the case, namely, whether the defendant possessed the heroin with the intention of selling it. Rather, Discor-dia gave his opinion as to the customary practice of drug dealers of layering money in $100 denominations.

To the extent that this testimony may have been understood by the jury to relate to the defendant’s conduct in this case, Discordia’s testimony would still be proper. “Expert witnesses may testify that certain behavior by a defendant or his possession of particular items is conduct similar to that engaged in by the typical drug dealer.” State v. Vilalastra, supra, 45. This testimony was therefore proper under the standard enunciated in State v. Vilalastra, supra.

II

The defendant’s next claim is that the trial court erred in disallowing testimony that a third person, M, could have committed the crime. We find no error.

In his offer of proof, the defendant sought to introduce evidence that ten days after he was arrested Dis-cordia observed M engaging in essentially the same activities that led to the defendant’s arrest. An arrest warrant prepared by Discordia revealed that he had observed M in a parking lot near the same apartment complex on Federal Street where the defendant was arrested. After observing M for some time, Discordia went to the area where M was observed and retrieved a magnetic key case containing glassine bags of heroin labeled “Blue Thunder.” The court denied the defendant’s offer of proof, finding no connection between M’s arrest and the defendant’s arrest ten days earlier. The court concluded that the defendant’s position was entirely speculative and raised collateral issues not relative to the issues before the jury.

“A defendant’s right to present witnesses and offer evidence is a fundamental element of due process of law. . . . Both this state and other jurisdictions have recognized that a defendant may introduce evidence which indicates that a third party, and not the defendant, committed the crime with which the defendant is charged. . . . The defendant, however, must show some evidence which directly connects a third party to the crime with which the defendant is charged. . . . It is not enough to show that another had the motive to commit the crime . . . nor is it enough to raise a bare suspicion that some other person may have committed the crime of which the defendant is accused. . . . ” (Citations omitted.) State v. Echols, 203 Conn. 385, 392, 524 A.2d 1143 (1987).

The admissibility of such evidence is governed by the rules of relevancy; id., 393; and it is well established that the trial court has wide discretion in its rulings on relevancy. State v. McClendon, 199 Conn. 5, 8, 505 A.2d 685 (1986). Those rulings will be reversed only if the court has abused its discretion or where injustice appears to have been done. State v. Milner, 206 Conn. 512, 518, 539 A.2d 80 (1988); State v. Echols, supra; State v. Smith, 198 Conn. 147, 157, 502 A.2d 874 (1985).

The defendant argues that M’s presence in the area on the day of the defendant’s arrest and the similarities between the crimes is sufficient evidence to connect M to the defendant’s crime and, therefore, to permit him to introduce this evidence. We disagree, and conclude that the trial court was correct in finding that there was no evidence directly connecting M with the crime that the defendant was alleged to have committed. Although it is true that on March 13, the day the defendant was arrested, M was in the vicinity, and that he was arrested on that day for breach of peace and again ten days later for sale of heroin, those facts alone do not connect M to the crime that the defendant was alleged to have committed. Discordia testified that, after arresting the defendant, he recognized M as a person for whom the police had an outstanding warrant, and he arrested M for breach of peace. There was no evidence that the police saw M exchange anything with the defendant or approach the doorway where the police found the drugs.

Furthermore, the defendant’s identity was not a contested issue at trial. See State v. Echols, supra, 393-94. It cannot be argued seriously that it was M and not the defendant whom Discordia observed for over one hour. Discordia testified that he had had a clear and unobstructed view of the area where the defendant had been observed, and at trial identified the defendant as one of the two men he had observed engaging in suspicious activity. At trial, Discordia identified the defendant as one of the two people he had observed exchanging items with various people on Federal Street and, he identified the defendant as the only person who had gone to the doorway where the drugs had been found.

We find equally unpersuasive the defendant’s argument that the similarities between the crimes for which M and the defendant were arrested is sufficient to connect M to the crime for which the defendant was charged. The methods employed by M and the defendant were neither unusual nor distinctive. Evidence was presented that labeling heroin packets “Blue Thunder” and using a hidden magnetic key case is common practice in the drug trade. The similarities in the techniques employed, therefore, raise nothing more than a bare suspicion that M committed the crime.

We conclude that the court did not err in refusing to admit evidence of M’s arrest.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 2la-278 (b) provides: “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 narcotic substance, hallucinogenic substance other than marihuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years or, (2) such person’s mental capacity was significantly impaired but not so impaired as to constitute a defense to prosecution.”
      The defendant was aquitted of the charge of being an accessory to possession of heroin with intent to sell in violation of General Statutes §§ 53a-8 and 21a-278 (b).

       James Holder and the defendant were tried jointly but filed separate appeals. See State v. Holder, 18 Conn. App. 184, 557 A.2d 553 (1989).

       If wes view Discordia’s testimony as the defendant advances, then the defendant is correct that Discordia’s opinion provided circumstantial evidence from which the jury could infer the defendant’s intent to sell. This inference is, however, entirely permissible.
      It is well established that the issue of a defendant’s specific intent is usually proved by circumstantial evidence. State v. Vilalastra, 207 Conn. 35, 42, 540 A.2d 42 (1988); State v. Edwards, 201 Conn. 125, 151, 513 A.2d 669 (1986); State v. Williams, 169 Conn. 322, 334, 363 A.2d 72 (1975). It is generally recognized that an officer testifying as an expert may properly give his opinion as to the quantity and purity of a narcotic substance that a defendant possessed or the manner in which a dealer might transport drugs. State v. Vilalastra, supra, 42-43. The purity level and quantity of drugs possessed, and the manner of transportation permit the jury to infer that the defendant possessed the drugs for the purpose of selling them. For purposes of this inference, there is no significant difference between an expert’s testimony as to the quantity of narcotics found and an opinion as to the significance of how the money seized was arranged.


source: Caselaw Access Project

author: Daly, J.

license: Public Domain

text:
    State of Connecticut v. James Holder, Jr.
    (6546)
    Borden, Daly and Foti, Js.
    Argued January 31
    decision released April 18, 1989

      Barry J. Ward, special public defender, for the appellant (defendant).

      RitaM. Shair, deputy assistant state’s attorney, with whom on the brief, were C. Robert Satti, Sr., state’s attorney, and John Cocheo, assistant state’s attorney, for the appellee (state).
   Daly, J.

The defendant appeals from a judgment of conviction, after a jury trial, of being an accessory to illegal possession of heroin with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b). On appeal, the defendant claims that the trial court erred (1) in denying his motion to suppress, (2) in permitting improper expert testimony, (3) in excluding evidence concerning possible third party involvement in the crime, (4) in permitting improper prosecutorial arguments to the jury, (5) in instructing the jury on accessory liability, and (6) in finding sufficient evidence to support the conviction. We find no error.

The facts of this case are set forth in the companion case of State v. Holeman, 18 Conn. App. 175, 556 A.2d 1052 (1989).

I

The defendant first claims that the court erred in denying his motion to suppress the money seized from him because there was no probable cause to arrest him. In particular, the defendant claims that the initial pat-down search was improper because it occurred prior to the discovery of the drugs.

Certain additional facts are relevant to this claim. At the suppression hearing, Officer William Discordia of the New London police department testified that when he and Officer Michael Gaska arrived at the scene, several people were present, including the defendant. The officers then detained the defendant and Darrell Holeman and, on the basis of their training and experience, conducted a pat-down search for weapons. Dis-cordia then proceeded to the building where he had seen Holeman deposit items and discovered the magnetic key case containing the drugs. After retrieving the key case, Discordia formally arrested the defendant. A search of the two men resulted in the seizure of the money. There was a discrepancy in the testimony, however, as to when the money was actually seized.

The trial court denied the defendant’s motion to suppress the money. It held that Discordia’s observations had given him reason to believe that the defendant had been engaged in the sale of narcotics and that the officers had acted properly in making the initial pat-down for weapons.

It is axiomatic that, subject only to a few well defined exceptions, a search conducted without a warrant issued upon probable cause is unreasonable. State v. McNellis, 15 Conn. App. 416, 420-21, 546 A.2d 292, cert. denied, 209 Conn. 809, 548 A.2d 441 (1988). One exception to this rule is the search conducted incidental to a lawful arrest. Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969). Thus, evidence obtained pursuant to a valid search and seizure incident to a lawful arrest is not illegal and is admissible. Id.; State v. McNellis, supra, 421.

The validity of the defendant’s arrest is determined by General Statutes § 54-1f (b), which authorizes a police officer to arrest, without a warrant, any person who the officer has reasonable grounds to believe has committed or is committing a felony. Our courts have equated the term “reasonable grounds” to probable cause. State v. McNellis, supra.

“ Tn order to establish probable cause, it is not necessary to produce a quantum of evidence necessary to convict. . . . Probable cause exists when the facts and circumstances within the knowledge of the officer and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution to believe that a felony has been committed.’ (Citations omitted.) State v. Cobuzzi, 161 Conn. 371, 376, 288 A.2d 439 (1971), cert. denied, 404 U.S. 1017, 92 S. Ct. 677, 30 L. Ed. 2d 664 (1972). Tn dealing with probable cause . . . as the very name implies, we deal with probabilities. These are not technical; they are factual and practical considerations of everyday life on which reasonable and prudent [people], not legal technicians, act.’ Brinegar v. United States, 388 U.S. 160, 175, 69 S. Ct. 1302, 93 L.Ed. 1879 (1949). ‘Probable cause is a flexible common sense standard. It does not demand that a belief be correct or more likely true than false. Texas v. Brown, 460 U.S. 730, [742,] 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983).’ Three S. Development Co. v. Santore, 193 Conn. 174, 175, 474 A.2d 795 (1984); see also Babiarz v. Hartford Special, Inc., 2 Conn. App. 388, 393, 480 A.2d 561 (1984).” State v. Carey, 13 Conn. App. 69, 73, 534 A.2d 1234 (1987). In testing the amount of evidence that supports probable cause, it is not the personal knowledge of the arresting officer but the collective knowledge of the law enforcement organization at the time of the arrest which must be. considered. Id.

On the basis of the facts and circumstances known by Discordia on the morning of March 13,1987, we conclude that the officers had reasonable grounds to believe that the defendant was engaged in the sale of illegal drugs. Furthermore, “[i]t is by now common knowledge among police officers that sellers of narcotics are frequently armed.” State v. Marino, 17 Conn. App. 677, 683, 555 A.2d 455 (1989); see State v. Amaral, 179 Conn. 239, 241, 425 A.2d 1293 (1979). We therefore conclude that the officers acted properly and reasonably in conducting the pat-down search for weapons. See Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); State v. Escobales, 16 Conn. App. 272, 275, 547 A.2d 553 (1988).

The question remains whether the search was contemporaneous with the arrest, as required by the doctrine established in Chimel v. California, supra. After Discordia discovered the drugs in the magnetic key case, the defendant was placed under formal arrest. There was a discrepancy in the testimony, however, as to when the money was actually seized. Although the defendant testified that the money was seized prior to the arrest, it was entirely within the prerogative of the court to disbelieve his testimony, which conflicted with that of the officers. See State v. Christian, 189 Conn. 35, 40, 454 A.2d 262 (1983). Notwithstanding the discrepancy, it is clear that the search was not remote in time and place from the occurrence of the actual restraint of the defendant and that the two were integral parts of the same incident. State v. Cobuzzi, supra, 378. “A search may be incident to an arrest even though the search precedes the arrest if adequate grounds exist at the time of the search and both the arrest and the search are integral parts of a single incident.” Id. Accordingly, we conclude that the state has sustained its burden of establishing that the search was incident to a lawful arrest. See State v. McNellis, supra, 421. The trial court did not err in denying the defendant’s motion to suppress.

II

The defendant next claims that the court erred in permitting certain testimony because it embraced opinions on the ultimate issue of the case. He specifically claims error in the court’s allowing Discordia’s testimony concerning (1) the significance of the manner in which the seized money was folded, and (2) the reason why he left his surveillance post.

A

The defendant’s first challenge to Discordia’s testimony is identical to the first claim raised in State v. Holeman, supra, 177-81, where we decided that the testimony was properly admitted. Accordingly, our decision in that case controls here.

B

On direct examination, Discordia was asked why he left his surveillance post. He responded that he had done so because, after he observed Holeman walk to the building and place yet another object on the ground, he “felt that there were drugs that were left at that area.” The defendant moved to strike the answer on the basis of relevance, and the court overruled the objection. The defendant claims on appeal that the court erred in refusing to strike that answer because it embraced an opinion on the ultimate issue.

We disagree. Under the standards for the admissa-bility of expert testimony enunciated in State v. Vilalas-tra, 207 Conn. 35, 45, 540 A.2d 42 (1988), and discussed in State v. Holeman, supra, we conclude that the answer was properly allowed by the trial court.

III

The defendant next claims that the court erred in excluding evidence concerning the possibility of a third party’s culpability for the crime. This issue has been fully addressed in the companion case of State v. Holeman, supra, 181-84. The trial court did not err in excluding the evidence.

IV

The defendant’s next claim is that he was deprived of a fair trial because the state’s closing argument included facts not in evidence at trial. In his closing argument, the assistant state’s attorney remarked: “The defendants knew Federal Street; they knew it was a high drug activity area and they probably knew— well, you decide whether they probably knew that they were being surveilled.” The court overruled the defendant’s objection to these comments on the ground that they were reasonable inferences from the evidence presented at trial.

“A prosecutor, in fulfilling his duties, must confine himself to the evidence in the record. State v. Binet, 192 Conn. 618, 631, 473 A.2d 1200 (1984); State v. Fer-rone, [96 Conn. 160,] 169 [113 A. 452 (1921)]. Statements as to facts which have not been proven amount to unsworn testimony that is not the subject of proper closing argument. ...” (Citation omitted.) State v. Williams, 204 Conn. 523, 544, 529 A.2d 653 (1987). A prosecutor may, in closing argument, comment upon the reasonable inferences that can be drawn from the facts properly in evidence. State v. Kinsey, 173 Conn. 344, 348, 377 A.2d 1095 (1977).

Our review of the entire trial transcript convinces us that the assistant state’s attorney’s remark was not improper, and thus did not deprive the defendant of a fair trial. Discordia testified that he had recognized the defendant on sight as he surveyed the area and that he had recognized the defendant through his duties as a New London police officer. Moreover, the defendant was observed for one hour as he stood in one location in a known drug area and had several brief encounters with various individuals. It is a reasonable inference that the defendant, known to a New London police officer and observed in a known drug area within sight of police headquarters, was familiar with the area. Even were we to assume that the prosecutor’s remark was improper, we remain unconvinced that the defendant was deprived of a fair trial. The comment was isolated and was not emphasized in the argument. See State v. Falcone, 191 Conn. 12, 23, 463 A.2d 558 (1983). Additionally, the court instructed the jury that its verdict should be based only on the evidence and that the statements of counsel during closing argument did not constitute evidence. Those instructions served to diminish the impact, if any, the remark may have had on the jury. See State v. Flinter, 16 Conn. App. 402, 410, 548 A.2d 1 (1988). We conclude that this claim is meritless.

V

The defendant next claims that the court erred in instructing the jury on accessory liability. He claims specifically that the charge was unduly confusing and that it failed to set out clearly the elements of the crime.

“Whether a charge is possibly misleading depends on the substance rather than the form of what is said.” State v. Kurvin, 186 Conn. 555, 565, 442 A.2d 1327 (1982). Jury instructions are calculated to give the ■ jurors a clear understanding of the elements of the crime charged and to afford them proper guidance for their determination of whether those elements were present. State v. Smith, 194 Conn. 213, 219, 479 A.2d 814 (1984).

A charge to the jury is to be considered as a whole and is not to be critically dissected. State v. Pyles, 17 Conn. App. 460, 465, 553 A.2d 1152 (1989). A jury charge will be upheld if it is correct in law, adapted to the issues and sufficient for the guidance of the jury. Id., citing State v. Greene, 11 Conn. App. 575, 580, 528 A.2d 855, cert. denied, 205 Conn. 804, 531 A.2d 938 (1987).

In order to establish accessory liability, the state must prove beyond a reasonable doubt that the accused had the intent to aid the principal and that in doing so he intended to commit the substantive offense with which he is charged. State v. Vincent, 194 Conn. 198, 207, 479 A.2d 237 (1984). Our review of the record indicates that the court’s instruction included all of the elements of accessorial liability and it reiterated the elements of the underlying charge. Moreover, the court inserted into its instruction the names of the defendants with respect to the crimes with which they were charged. We are unpersuaded by the claim that this effort at clarification somehow served to confuse the jury. We conclude that the court’s instruction, taken as a whole, guided the jury to a clear understanding of the offense.

VI

The defendant’s final claim is that there was insufficient evidence to support the jury’s guilty verdict. The defendant appears to argue (1) that the state failed to prove that Holeman possessed the drugs and that, therefore, he could not be guilty as an accessory, and (2), in the alternative, that if Holeman did possess the heroin there was insufficient evidence to link him to any criminal activity of the codefendant. Accordingly, he claims that the court erred in denying his motion for judgment of acquittal. We disagree.

“When a claim on appeal challenges the sufficiency of the evidence we first review the evidence in the light most favorable to sustaining the jury’s verdict; next we determine, whether, upon the facts established and the inferences reasonably drawn therefrom, ‘the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt.’ State v. Simino, 200 Conn. 113, 117, 509 A.2d 1039 (1986); State v. Summerville, 13 Conn. App. 175, 184-85, 535 A.2d 818 (1988). Our inquiry focuses on whether ‘ “a rational trier of fact could find guilt proven beyond a reasonable doubt.” ’ State v. Scielzo, 190 Conn. 191, 197, 460 A.2d 951 (1983), quoting Jackson v. Virginia, 443 U.S. 307, 317-18, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).” State v. Delarosa, 16 Conn. App. 18, 33, 547 A.2d 47 (1988). As previously stated, in order to prove accessory liability, the state must prove beyond a reasonable doubt that the defendant had the intent to aid the principal and that in doing so he intended to commit the substantive offense with which he is charged. State v. Vincent, supra, 207.

From the evidence adduced at trial, the jury could reasonably have concluded that the pair was working as a team. The jury could have concluded further that the defendant acted as the recipient of the purchase money for the heroin while Holeman had the job of controlling the glassine bags of narcotics at the cache and dispensing them to the purchasers. Holeman’s actions clearly established the necessary dominion and control over the narcotics to constitute sufficient evidence of possession. Moreover, the jury could reasonably have concluded that the defendant’s actions in acting as the receiver of drug purchase money were evidence of his intent both to aid Holeman and to commit the crime. See State v. Tucker, 9 Conn. App. 161, 164, 517 A.2d 640 (1986). We conclude that there was sufficient evidence to sustain a verdict of guilty.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 21a-278 (b) provides: “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 narcotic substance, hallucinogenic substance other than marihuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years or, (2) such person’s mental capacity was significantly impaired but not so impaired as to constitute a defense to prosecution.”

       Darrell Holeman and the defendant were tried jointly but filed separate appeals. See State v. Holeman, 18 Conn App. 175, 556 A.2d 1052 (1989).

       “[General Statutes] Sec. 53a-8. criminal liability for acts of another. A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitues an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

       The relevant portion of the court’s charge on accessorial liability is: “Now next I’m going to go on to the information with respect to James Holder, Jr. Again, I’m not going to repeat the instructions that I gave you about possession and intent, but those instructions still apply here. I’ll read the information. Mr. Holder is accused of accessory to illegal possession of heroin with intent to sell, and charges that at the City or Town of New London, on the 13th day of March, 1987, the said James Holder, Jr. at Federal Street Project Complex, did commit the crime of accessory to illegal possession of heroin with intent to sell in violation of Statute 53a-8, that’s the accessory statute, and 21a-278 (b), which is the underlying statute. Now remember that a person is criminally liable for a criminal act if he directly commits or if he is an accessory to the criminal act of another. This basic principle is stated in the law as follows: ‘A person, acting with the mental state required for the commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct . . . .’
      “The underlying charge here is — I’ll repeat the elements of the underlying charge. The defendant, this is the underlying charge, the defendant knowingly possessed a narcotic substance, here heroin; that he possessed it with the intent to sell that substance; that at the time he possessed it, he was not a drug-dependent person, and that, of course, would be Mr. Holder, at the time of engaging in this Mr. Holder was not a drug-dependent person. If you find the State has proven — well, all right, these are the elements of the underlying offense. I’m not going to repeat all of the details of this, as I did before, but remember to find Mr. Holder guilty of this offense you must find it has been proven beyond a reasonable doubt that, as alleged in the information and in accordance with these instructions, that he acted with the kind of mental state required for the commission of the crime of illegal possession of-heroin with intent to sell, and at the time he was a non-drug-dependent person, I’ve explained that offense to you, and with the mental state required for the commission of that crime, he intentionally solicited, requested, commanded, or aided another person, this is Mr. Holeman, to engage in conduct to constitute the offense of illegal possession of heroin with intent to sell.”


text:
    Virginia G. Aitken v. Zoning Board of Appeals of the Town of Branford et al.
    (6851)
    Borden, O’Connell and Foti, Js.
    Argued December 13, 1988
    decision released April 25, 1989

      Roger Sullivan, for the appellant (plaintiff).

      Norbert W. Church, Jr., for the appellee (named defendant).

      Richard D. Patterson, for the appellee (defendant Robert Stosse).
   Foti, J.

The plaintiff, Virginia G. Aitken, upon certification by this court, appeals from a judgment of the trial court dismissing her appeal from the action of the named defendant, the Branford zoning board of appeals (board), granting a variance to the defendant property owner, Robert Stosse.

On appeal, the plaintiff claims that the trial court erred (1) in concluding that there was sufficient evidence of hardship to support the granting of the variance, (2) in applying an improper standard of review, (3) in considering improper documentary evidence, and (4) in finding that the defendant board had relied upon a prior variance grant. We find error on the plaintiffs first claim.

There is no substantial dispute about the facts. The subject lot is in an R-5 zone, Branford’s highest residential zone. Branford’s zoning regulations require each lot in an R-5 zone to have a minimum lot frontage of 130 feet. The board granted Stosse a variance that reduced the minimum lot frontage from 130 feet to zero feet. This variance would permit Stosse to resubdivide his 3.75 acre parcel and establish a rear building lot with zero frontage. The subject lot is located on an existing right-of-way which accesses other residences.

In his application for the variance, Stosse stated the reason for hardship: “I am unable to care for the property — Briars and Poison Ivy grow and extend into the neighbor’s yards.” At a hearing on February 10, 1987, the board never specifically addressed the issue of hardship, but during that hearing Stosse’s counsel referred to a prior variance Stosse had received in 1977 that related to the property at issue and to several neighboring lots. The 1977 variance permitted Stosse to subdivide his property into several individual lots. Stosse retained the lot in question and used it as his residence. The only evidence of the earlier variance presented to the board was a statement by Stosse’s counsel that he had received a variance. No additional evidence of hardship was offered at the hearing. The board, in granting the variance, provided no reason for its action and none was furnished in the minutes of the meeting.

In upholding the board’s decision granting Stosse a variance, the trial court found the plaintiff was an abutting landowner within the meaning of General Statutes § 8-8 (a) and, therefore, had standing to appeal. As to the board’s decision granting the variance, the court found the board’s “recognition of its prior granting of a variance concerning the subject property” determinative of hardship.

I

Before turning to the merits of the plaintiff’s claim, we must address the defendants’ jurisdictional claims to decide whether this appeal is properly before us. Stosse argues that the plaintiff did not meet her burden of proving she was aggrieved by the board’s action pursuant to General Statutes § 8-8 (a) in that she did not demonstrate a direct personal or legal interest in the outcome of the litigation, other than her status as an abutting landowner.

General Statutes § 8-8 (a) specifically provides: “Any person . . . aggrieved by any decision of said board, or any person owning land which abuts or is within a radius of one hundred feet of any portion of the land involved in any decision of said board . . . may . . . take an appeal to the superior court. . . .’’(Emphasis added.) This statute conveys standing on abutting landowners without the necessity of proving some other personal interest in the outcome of the litigation. Smith v. Planning & Zoning Board, 203 Conn. 317, 321, 524 A.2d 1128 (1987). This claim is, therefore, without merit.

The board claims that the plaintiff’s appeal should be dismissed for lack of subject matter jurisdiction because the plaintiff did not name the chairman or clerk of the board as a necessary party. The board argues that this notice defect is fatal to the plaintiff’s appeal in light of our Supreme Court’s extension of its reasoning and holdings in Simko v. Zoning Board of Appeals, 205 Conn. 413, 533 A.2d 879 (1987) (Simko I), and Simko v. Zoning Board of Appeals, 206 Conn. 374, 538 A.2d 202 (1988) (Simko II), to require the chairman or clerk of the zoning board be named as a necessary party. Andrew Ansaldi Co. v. Planning & Zoning Commission, 207 Conn. 67, 540 A.2d 59 (1988).

We begin by reviewing the Supreme Court’s decisions in Simko I and Simko II, and developments subsequent to these cases. In Simko II, the Supreme Court affirmed its decision in Simko I interpreting General Statutes (Rev. to 1985) § 8-8 (b), as amended by Public Acts 1985, No. 85-284, § 3, and held that the clerk of the municipality and the clerk or chairman of the zoning board are necessary parties to the initiation of a zoning appeal, and both must be properly cited and served with copies of the appeal. Failure to comply strictly with § 8-8 (b) subjects the appeal to dismissal as it constitutes a defect involving subject matter jurisdiction. Simko I, supra, 421; Simko II, supra, 383. Although Simko I and Simko II did not squarely address the issue of service on the chairman or clerk of the zoning board, in Andrew Ansaldi Co. v. Planning & Zoning Commission, supra, 69-70 n.2, the court expressly extended its reasoning in Simko I and Simko II to apply to the chairman or clerk of the board.

In response to these decisions, the legislature farther amended § 8-8 (b) in April, 1988, by adding the following provision: “provided service upon the clerk of the municipality should be for the purpose of providing additional notice of such appeal to said board and shall not thereby make such clerk a necessary party to such appeal.”

The Supreme Court has recently had occasion to reexamine its holdings in Simko I and Simko II in light of the legislature’s most recent pronouncement on this issue. In Capalbo v. Planning & Zoning Board of Appeals, 208 Conn. 480, 486-87, 547 A.2d 528 (1988), the court acknowledged that the legislature’s intent in amending § 8-8 (b) was to save zoning appeals otherwise subject to dismissal on Simko grounds. The court examined the validating act and enunciated the four conditions that must be satisfied to save an otherwise invalid appeal. Under this four-prong test, the appeal (1) must have been taken on or after October 1, 1985, (2) prior to December 1,1987, (3) a final judgment must have been rendered prior to April 20, 1988, the effective date of the act, and (4) “the appeal must be otherwise valid except that the appellant failed to name the clerk of the municipality as a necessary- party to the appeal.” Capalbo v. Planning & Zoning Board of Appeals, supra, 485. The appeal in this case readily meets the first three requirements under the Capalbo test. The plaintiff’s compliance with the fourth condition is, however, less evident because the court in Capalbo did not specifically address the issue of the effect of the validating act on appeals that do not properly name the chairman or clerk of the board as a necessary party.

Even though the court in Capalbo did not decide this question, we are convinced that implicit in the Supreme Court’s recent decisions in this area, and explicit in the language of Public Acts 1988, No. 88-79, is the intention to validate also zoning appeals that fail to name the chairman or clerk of the zoning board of appeals as a necessary party but that otherwise provide adequate service and notice of the appeal to the board. Our analysis of this issue begins with an examination of Public Acts 1988, No. 88-79, the General Assembly’s most recent statement on this issue.

Much of the debate with respect to the issue of who is a necessary party for the purposes of a zoning appeal centered around whether the clerk of the municipality and the clerk of the board were necessary parties to a zoning appeal or mere agents for service on the municipality and board. Simko I, supra, 421-23 (Shea, J., dissenting); Simko II, supra, 383-91 (Shea, J. and Covello, J. dissenting). When Simko I and Simko II were decided, General Statutes § 8-8 (b), as amended by Public Acts 1985, No. 85-284, § 3, directed whom to serve but did not specify who was to be named as a necessary party. The court interpreted the statute to require those to be served, namely, the chairman or clerk of the board and the clerk of the municipality, to be named as necessary parties. In Simko II, supra, 378, the majority stated: “Further, § 8-8 (b) does not say that notice of such appeal shall be given to the zoning board by serving or leaving true and attested copies of the appeal with the chairman or clerk of the board and the clerk of the municipality. Language to that effect would undoubtedly have made the clerk of the municipality the mere agent for service for the board.” (Emphasis in original.)

We read the recent amendment to General Statutes § 8-8 (b), Public Acts 1988, No. 88-79, to clear up the ambiguity in the former statute of who is the necessary party for the purpose of a zoning appeal. The statute now states that “service upon the clerk of the municipality shall be for the purpose of providing additional notice of such appeal to said board . . . (Emphasis added.) “When the legislature amends the language of a statute, it is presumed that the legislature intended to change the meaning of the statute; Shelton v. Commissioner, 193 Conn. 506, 513, 479 A.2d 208 (1984); and to accomplish some purpose.” Simko II, supra, 377. We conclude that the legislature’s inclusion of the phase “to said board” was intended to clarify that the zoning board is the necessary party for purposes of a zoning appeal and that the purpose of the notice provisions of General Statutes § 8-8 (b), as amended, is to notify the board through its agent, the clerk or chairman of the board, and in addition, through the clerk of the municipality.

This result is supported by recent decisions of the Supreme Court. In Capalbo v. Planning & Zoning Board of Appeals, supra, 489, the court adopted a “functional approach” to determining what constitutes an appeal that is “otherwise valid except that the appellant failed to name the clerk of the municipality as a party to the appeal,” pursuant to General Statutes § 8-8 (b), as amended by Public Acts 1988, No. 88-79. Applying this functional approach to the facts of that case, the court validated an appeal in which the town clerk received a copy of the appeal but was neither cited as a party nor named for the purpose of directing proper service.

A similar practical result was reached in Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 543 A.2d 1339 (1988). In Schwartz, the court found legally sufficient service was rendered when the citation, although not naming the town clerk as a party, directed the sheriff to serve, with true and attested copies of the complaint, both the clerk of the town and the chairman or clerk of the board. The record disclosed that the sheriff did, in fact timely serve both the town clerk and chairman of the commission. Id., 150-51; see also Ilvento v. Frattali, 210 Conn. 432, 433-34, 555 A.2d 985 (1989) (appeal taken pursuant to General Statutes § 8-28 [a] validated where the appellant cited the commission and the sheriff served the clerk of the board even though the appellant failed to cite or direct service upon the chairman or clerk of the commission).

The present case is almost identical to Schwartz. Here, the plaintiff named the zoning board of appeals and Robert Stosse as necessary parties but did not similarly name the chairman or clerk of the board or the town clerk. The citation directed the sheriff to serve true and attested copies of the appeal on both the town clerk of Branford and the chairman or clerk of the zoning board. The return of service reveals that both the town clerk and the chairman of the zoning board were properly and timely served.

In light of the legislature’s recent amendment to General Statutes § 8-8 (b) and the purpose of that amendment, as revealed by its legislative history, to validate zoning appeals with Simko problems, and in the spirit the Supreme Court’s adoption of a “functional approach” to validating zoning appeals otherwise subject to dismissal under Simko I and Simko II, we conclude that the manner of service in this case was legally sufficient. It is now abundantly clear that when the legislature enacted Public Acts 1988, No. 88-79, it “clearly expressed an intention that appeals from the decisions of planning and zoning commissions be heard and decided on their merits and not be invalidated for technical defects in service.” Ilvento v. Frattali, supra, 434.

We now turn to the merits of the plaintiff’s appeal. The plaintiff’s first claim, which is dispositive of this appeal, is that the trial court erred in finding that the record revealed sufficient evidence of hardship as required by General Statutes § 8-6.

‘A local zoning board has the power to grant a variance under General Statutes § 8-6 (3) where two basic conditions are satisfied: “(1) the variance must be shown not to affect substantially the comprehensive zoning plan, and (2) adherence to the strict letter of the zoning ordinance must be shown to cause unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan.” Smith v. Zoning Board of Appeals, 174 Conn. 323, 326, 387 A.2d 542 (1978).’ Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 655, 427 A.2d 1346 (1980). (Footnote omitted.)” Grillo v. Zoning Board of Appeals, 4 Conn. App. 205, 208, 493 A.2d 275 (1985). The zoning board’s action must be “reasonably supported by evidence in the record.” Smith v. Zoning Board of Appeals, supra, 326. The plaintiff claims that the record is devoid of any evidence that the “unusual hardship” requirement was met. As a basis for hardship, Stosse relies on the fact that, in 1977, the board found hardship and granted him a variance on the same property. We agree with the plaintiff.

Because the board did not furnish its reasons for granting the variance, it was necessary for the trial court to search the record to find some basis for the action taken. Ward v. Zoning Board of Appeals, 153 Conn. 141, 144, 215 A.2d 104 (1965). If no reason is found, the board’s decision cannot be sustained. Id. The trial court, in sustaining the board’s decision to grant the variance, relied on the board’s consideration of the 1977 variance. The record does not disclose, however, that the board considered the prior 1977 variance as the basis for its action, and, even if it had, this fact alone is insufficient to meet the stringent requirements for establishing hardship.

It is well settled that the granting of a variance must be reserved for unusual or exceptional circumstances. Ward v. Zoning Board of Appeals, supra, 145. Proof of hardship is a condition precedent to granting a variance. Point O’ Woods Assn., Inc. v. Zoning Board of Appeals, 178 Conn. 364, 365, 423 A.2d 90 (1979). The hardship must “ ‘arise from circumstances or conditions beyond the control of the property owner.’ ” Pollard v. Zoning Board of Appeals, 186 Conn. 32, 39, 438 A.2d 1186 (1982), quoting Smith v. Zoning Board of Appeals, 174 Conn. 323, 327, 387 A.2d 542 (1978). “Where the claimed hardship arises from the applicant’s voluntary act, however, a zoning board lacks the power to grant a variance. . . . The hardship which justifies a board of zoning appeals in granting a variance must be one that originates in the zoning ordinance . . . and arises directly out of the application of the ordinance to circumstances beyond the control of the party involved.” (Citations omitted.) Id., 39-40. It is well established that a hardship that is self-created is never a proper grounds for a variance. Id.

Stosse’s stated reason for applying for this variance of the town’s frontage requirements was that he wanted to subdivide his property into two lots. Absent the variance, he will not be able to subdivide his property. This situation is self-created and, therefore, not a sufficient reason to depart from the zoning regulations. Furthermore, the fact that he obtained a variance more than ten years ago for property that was four times the size and subsequently subdivided is not sufficient reason to grant a variance. See Ward v. Zoning Board of Appeals, supra (fact that another variance was granted for sixteen neighboring parcels not sufficient to establish hardship).

Because this issue is dispositive, we need not consider the other claims raised by the plaintiff on appeal.

There is error, the judgment is set aside and the case is remanded with direction to render judgment sustaining the plaintiff’s appeal.

In this opinion the other judges concurred.

       With respect to the 1977 variance, Stosse’s counsel stated: “[T]he original variances granted in 77 were granted on the basis of a hardship that was found at that time, and that is essentially the same. My client probably could have gotten additional variances at that time had he sought it, but he intended to use it for his own purposes. On the initial variance, the hardship was the road size and shape of the property and the fact that the surrounding property both on the north and south have been developed as existing subdivision and didn’t make much sense because of the size of the property to bring in an additional full size road.”

       General Statutes § 8-8 (a) provides: “Any person or persons severally or jointly aggrieved by any decision of said board, or any person owning land which abuts or is within a radius of one hundred feet of any portion of the land involved in any decision of said board, or any officer, department, board or bureau of any municipality, charged with the enforcement of any order, requirement or decision of said board, may, within fifteen days from the date when notice of such decision was published in a newspaper pursuant to the provisions of section 8-3 or 8-7, as the case may be, take an appeal to the superior court for the judicial district in which such municipality is located, which appeal shall be made returnable to said court in the same manner as that prescribed for civil actions brought to said court.”

       At the time Simko I and Simko II were decided, in December, 1987, and March, 1988, General Statutes § 8-8 (b) provided: “Notice of such appeal shall be given by leaving a true and attested copy thereof with, or at the usual place of abode of, the chairman or clerk of said board, and by serving a true and attested copy upon the clerk of the municipality. The appeal shall state the reasons upon which it has been predicated and shall not stay proceedings upon the decision appealed from, but the court to which such appeal is returnable may, on application, on notice to the board and on cause shown, grant a restraining order.”

       General Statutes § 8-8 (b), as amended by Public Acts 1988, No. 88-79, now provides: “Notice of such appeal shall be given by leaving a true and attested copy thereof with, or at the usual place of abode of, the chairman or clerk of said board, and by serving a true and attested copy upon the clerk of the municipality, provided service upon the clerk of the municipality shall be for the purpose of providing additional notice of such appeal to said board and shall not thereby make such clerk a necessary party to such appeal. The appeal shall state the reasons upon which it has been predicated and shall not stay proceedings upon the decision appealed from, but the court to which such appeal is returnable may, on application, on notice to the board and on cause shown, grant a restraining order.” (Emphasis added.)

       At oral argument, the board conceded that the plaintiff’s failure to cite the clerk of the municipality as a necessary party would be saved by Public Acts 1988, No. 88-79, and the Supreme Court’s holding in Capalbo, provided we find that service with respect to the chairman of the board is otherwise valid.

       “[General Statutes] Sec. 8-6. powers and duties of board of appeals. The zoning board of appeals shall have the following powers and duties: (1) To hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the official charged with the enforcement- of this chapter or any bylaw, ordinance or regulation adopted under the provisions of this chapter; (2) to hear and decide all matters including special exceptions and special exemptions under section 8-2g upon which it is required to pass by the specific terms of the zoning bylaw, ordinance or regulation; and (3) to determine and vary the application of the zoning bylaws, ordinances or regulations in harmony with their general purpose and intent and with due consideration for conserving the public health, safety, convenience, welfare and property values solely with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such bylaws, ordinances or regulations would result in exceptional difficulty or unusual hardship so that substantial justice will be done and the public safety and welfare secured, provided that the zoning regulations may specify the extent to which uses shall not be permitted by variance in districts in which such uses are not otherwise allowed. No such board shall be required to hear any application for the same variance or substantially the same variance for a period of six months after a decision by the board or by a court on an earlier such application.”

       Stosse did not, either in his appellate brief or at the hearing before the board, pursue his initial reason for hardship, that he could not take care of his property. We therefore consider this claim abandoned.


author: Dupont, C. J.

text:
    Richard J. Bonelli v. Sandra A. Bonelli
    (6247)
    Dupont, C. J., Boeden and Nokcott, Js.
    Argued November 15, 1988
    decision released April 25, 1989

      M. Jane Christensen, for the appellant (defendant).

      C. Michael Budlong, with whom, on the brief, were, Terence S. Ward and Kathleen A. Murrett, for the appellee (plaintiff).
   Dupont, C. J.

The defendant appeals from the judgment rendered in a dissolution action. The defendant claims that the trial court erred (1) in determining the division of property, (2) in failing to award her alimony, (3) in failing to award counsel fees to her, and (4) in denying her motions to reargue, to open the judgment and to disqualify the trial judge, and for an evidentiary hearing. We conclude that the trial court erred in denying the defendant’s motion to open the judgment and to disqualify the trial judge and therefore we need not consider the other claims of error.

The plaintiff husband and the defendant wife were married on June 17, 1970, and the marriage was dissolved on January 30,1987. There were no children of the marriage.

Subsequent to the rendering of the judgment of dissolution, the defendant filed a motion to reargue. Before the motion to reargue was heard, the defendant learned of facts that led her to file a motion to open the judgment and to disqualify the trial judge. The defendant’s motion to open the judgment and to disqualify alleged that the trial court, Kaplan, J., and the plaintiff’s counsel had previously had a cocounsel relationship in a wrongful death case prior to the trial judge’s appointment, and that the relationship as cocounsel continued until the time that the judge was appointed to the bench. The motion further alleged that the wrongful death case was unresolved and that the judge’s former law firm and the plaintiff’s counsel continued to have a cocounsel relationship, there being probate matters and a legal fee dispute still pending.

The court denied the defendant’s motion to open and disqualify, finding that the motion was legally insufficient to support a basis for disqualification. Thereafter, the defendant filed a motion for an evidentiary hearing on the motion to disqualify, which was denied by the court, Barall, J., on the grounds that Judge Kaplan had held that there was an insufficient factual basis for recusal and that the defendant failed to present any claim or fact that the judge would receive fees or reimbursement from the resolution of the wrongful death case.

Szypula v. Szypula, 2 Conn. App. 650, 482 A.2d 85 (1984), sets forth the procedural requirements for raising a claim of judicial disqualification. A party asserting disqualification is required to state facts on the record that, if taken as true, give fair support to the party’s claim. Id., 656. “If those facts, taken as true, give that fair support, the party is entitled to an eviden-tiary hearing on those facts before another judge.” Id. An evidentiary hearing is required, however, only whien the facts are disputed. Id., 655. Because the undisputed facts on the record are sufficient to require disqualification of the judge in this case, it is unnecessary to determine whether it was error to deny the defendant an evidentiary hearing.

At the hearings on the defendant’s motion to open and disqualify, Judge Kaplan stated on the record the facts pertinent to his relationship with the plaintiff’s counsel. The judge’s former law firm and the plaintiff’s counsel had a cocounsel relationship in a wrongful death action (hereinafter referred to as the Nesko case) while the trial judge was a partner in the firm. This relationship continued up to the time that the judge was appointed to the bench. The judge’s former firm continued to represent the plaintiffs in the Nesko case in a cocounsel relationship with the present plaintiff’s counsel up to the time of the motion for disqualification.

The specific extent of the trial judge’s involvement in the Nesko case is unclear. While at one point during the hearing on the motion to open and disqualify, the judge stated, “I handled that file [for the Nesko plaintiff],” at another point the judge noted that none of the pleadings in the Nesko case was signed by him and that his involvement in the case was limited. What is undisputed is that the judge personally, as opposed to any other member of his law firm, met with and interviewed one of the Nesko plaintiffs. It is also undisputed that the judge engaged in correspondence with a law firm previously employed and later discharged by a Nesko plaintiff, which discussed a fee division and arrangements for transmittal of the Nesko file. It is clear from the record that probate matters relating to the settlement of the Nesko case and a dispute over legal fees filed in the Superior Court remained pending at the time of the present dissolution trial and that the judge’s former law firm and the plaintiff’s counsel continued to represent one or more of the Nesko plaintiffs’ interests in these matters. The judge stated that while he has a financial arrangement with his former law firm, the resolution of the Nesko case would have no effect on that arrangement.

The defendant contends that the cocounsel relationship in the Nesko case,, together with the fact that litigation concerning legal fees in the Nesko case remained pending at the time of the dissolution trial, required the granting of the motion to open and disqualify. The defendant also argues that the facts on the record demonstrate that, at the time the defendant’s case was heard, the plaintiff’s counsel was involved in litigatio'n which could financially affect the judge’s former law firm.

The disqualification of judges in Connecticut is governed by General Statutes § 51-39 and by Canon 3 C of the Code of Judicial Conduct. Dubaldo v. Dubaldo, 14 Conn. App. 645, 648, 542 A.2d 750 (1988). The defendant relies on Canon 3 C (1) of the Code of Judicial Conduct, which provides: “A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned . . . . ” “The standard to be employed is an objective one, not the judge’s subjective view as to whether he or she can be fair and impartial in hearing the case.” Papa v. New Haven Federation of Teachers, 186 Conn. 725, 744, 444 A.2d 196 (1982). “ ‘ “Any conduct that would lead a reasonable [person] knowing all the circumstances to the conclusion that the judge’s ‘impartiality might reasonably be questioned’ is a basis for the judge’s disqualification. Thus, an impropriety or the appearance of impropriety . . . that would reasonably lead one to question the judge’s impartiality in a given proceeding clearly falls within the scope of the general standard . . . .” Thode, Reporter’s Notes to Code of Judicial Conduct (1973), pp. 60-61. “The question is not whether the judge is impartial in fact. It is simply whether another, not knowing whether or not the judge is actually impartial, might reasonably question his [or her] impartiality, on the basis of all the circumstances.” Rice v. McKenzie, 581 F.2d 1114, 1116 (4th Cir. 1978); see Spires v. Hearst Corporation, 420 F. Sup. 304, 307 (D. Cal. 1976).’ Papa v. New Haven Federation of Teachers, supra, 745-46.” Dubaldo v. Dubaldo, supra, 649; see also Dacey v. Connecticut Bar Assn., 184 Conn. 21, 441 A.2d 49 (1981).

“We have embraced the rule that ‘justice must satisfy the appearance of justice’; Offutt v. United States, 348 U.S. 11, 14, 75 S. Ct. 11, 99 L. Ed. 11 (1954); even though this ‘stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties.’ In re Murchison, 349 U.S. 133, 136, 75 S. Ct. 623, 99 L. Ed. 942 (1955).” Dubaldo v. Dubaldo, supra, 650.

Although no single fact in this case requires disqualification, we conclude from the totality of circumstances, and the facts as established on the record, that disqualification was required because these circumstances could reasonably lead an objective observer to question the judge’s ability to be impartial. Dubaldo v. Dubaldo, supra, 649.

There is error, the judgment is set aside as to the financial awards and property division, and the case is remanded, limited to those issues.

In this opinion the other judges concurred.

       A motion for disqualification or recusal made after judgment is timely if the moving party was not alerted to the basis of the claim until after trial. See Szypula v. Szypula, 2 Conn. App. 650, 482 A.2d 85 (1984).

       The judge was appointed to the bench in November, 1985.


author: Borden, J.

text:
    Henry F. Healy, Jr., High Sheriff of the County of New Haven v. Freedom of Information Commission et al.
    (6813)
    Borden, Daly and Norcott, Js.
    Argued December 21, 1988
    decision released April 25, 1989

      Victor R. Perpetua, commission counsel, with whom, on the brief, were Theresa A. Hopkins and Laura S. Shactman, commission counsel, and Mitchell W. Pearlman, general counsel, for the appellant (named defendant).

      Henri Alexandre, assistant attorney general, with whom, on the brief, were Clarine Nardi Riddle, acting attorney general, and Joseph I. Lieberman, former attorney general, for the appellee (plaintiff).
   Borden, J.

The named defendant, the state freedom of information commission, appeals from the judgment of the trial court sustaining the plaintiffs administrative appeal. The decisive issue in this appeal is whether the disclosure provisions of General Statutes § 1-19 of the Freedom of Information Act; General Statutes §§ 1-7 through l-21k; apply to monthly financial statements filed with the plaintiff, the high sheriff of New Haven county, by the plaintiffs deputy sheriffs pursuant to the spirit of the Code of Ethics for Public Officials. General Statutes §§ 1-79 through 1-89. We conclude that the statements are exempt from disclosure under § 1-19, and, accordingly, we find no error.

The trial court found the following facts. In an effort to assist his deputy sheriffs to comply with the requirement of General Statutes § 1-83 that they file with the state ethics commission an annual statement of financial interests, the plaintiff required his deputies to prepare and file with him monthly statements detailing their expenses and income derived from the discharge of their duties as deputy sheriffs. The monthly statements served to gather, in a systematic and orderly way, the information that would be necessary to produce the annual statements for the ethics commission. It is undisputed that the production of the monthly statements was not required by General Statutes § 1-83, and that the monthly statements were not filed with the ethics commission.

David Wilson, a reporter with the New Haven Advocate, requested copies of the deputy sheriffs’ monthly statements. The plaintiff refused to disclose the statements and Wilson filed a complaint with the defendant. After a hearing, the defendant ordered the plaintiff to provide Wilson copies of the monthly statements. The defendant noted in its order that the plaintiffs policy of requiring his deputy sheriffs to submit monthly statements was motivated by “good faith and an ardent desire to comply with the statutory filing requirements of [General Statutes] § 1-83.” The plaintiff appealed to the trial court, which sustained the appeal. The defendant’s appeal to this court followed.

The defendant argues that the trial court erred in concluding that General Statutes § 1-83 exempts the deputies’ monthly statements from disclosure. We disagree with the defendant.

Under General Statutes § 1-19 (a), “[e]xcept as otherwise provided by any federal law or state statute, all records” of public agencies are public records subject to public inspection. The issue of this appeal is whether, under the facts of this case, General Statutes § 1-83 is a state statute that “otherwise provides.” See Gal- vin v. Freedom of Information Commission, 201 Conn. 448, 456, 518 A.2d 64 (1986). “In resolving this issue, we are guided by the well established rule that requires us to ascertain and give effect to the apparent intent of the legislature. See, e.g., State v. Dolphin, 203 Conn. 506, 521, 525 A.2d 509 (1987).” Commissioner v. Freedom of Information Commission, 204 Conn. 609, 619-20, 529 A.2d 692 (1987).

From our examination of the two statutes, we conclude that the language of § 1-83 indicates that the legislature intended to limit the disclosure of information gathered in the preparation of annual financial statements. Section 1-83 (b) (3) provides that “the statement of financial interests filed by sheriffs and deputy sheriffs shall include only amounts and sources of income earned in their capacity as sheriffs or deputy sheriffs.” (Emphasis added.) By contrast, § 1-83 (b) (1) requires that members of the general assembly and other office holders file a much more thorough statement, detailing such items as real estate holdings, securities holdings, and “the category or type of all sources of income . . . .” Thus, it is evident that the legislature specifically intended to circumscribe the extent to which § 1-83 requires sheriffs and deputy sheriffs to disclose their financial affairs to the public eye.

Moreover, § 1-83, when read as a whole, reveals a careful balance between the information that must be disclosed and that which may be withheld from public scrutiny. Section 1-83 (b) (1) (B) requires the disclosure of “the category or type of all sources of income in excess of one thousand dollars,” but the amount “shall not be specified . . . .” Although “the names and addresses of specific clients, patients, and customers” who provided more than five thousand dollars of income must be included in the financial statement; id.; the list of names so provided “shall be sealed and confidential and for the use of the [ethics] commission only after a complaint has been filed . ” General Statutes § 1-83 (c). Moreover, the name of a given client, patient or customer may be withheld altogether if such information is legally or ethically privileged, and, in any event, the amount of income derived from the client, patient or customer need not be disclosed. General Statutes § 1-83 (b) (1) (B).

“ ‘In construing a statute, each part should be treated as significant and necessary; every sentence, phrase and clause is presumed to have a purpose.’ . . . Vartuli v. Sotire, [192 Conn. 353, 363-64, 472 A.2d 336 (1984)].” Carr v. Woolwich, 7 Conn. App. 684, 694-95, 510 A.2d 1358, cert. denied, 201 Conn. 804, 513 A.2d 698 (1986). “Where statutes contain specific and general references covering the same subject matter, the specific references prevail over the general. Atwood v. Regional School District No. 15, 169 Conn. 613, 622, 363 A.2d 1038 (1975)”; Galvin v. Freedom of Information Commission, supra, 456. Statutes “must be read with common sense, so as to accomplish a reasonable result and not to thwart [their] purpose. State v. Ralston, 7 Conn. App. 660, 682, 510 A.2d 1346 (1986).” State v. Chiarizo, 8 Conn. App. 673, 682-83, 514 A.2d 370, cert. denied, 201 Conn. 809, 515 A.2d 379 (1986).

It would not comport with these well established canons of statutory construction for us to construe §§ 1-83 and 1-19 so as to require the plaintiff to disclose information gathered in compliance with § 1-83 that was beyond the scope of the disclosure requirements of that statute. The legislature’s purpose in drafting § 1-83 as it did was to create a specific and self-contained system of disclosure and nondisclosure. Because § 1-83 contains its own mechanism to control the disclosure of information gathered in pursuance of its terms, we conclude that to incorporate into § 1-83 the general disclosure rule of § 1-19 “would defeat the policy of [§ 1-83] and make its own provisions hopelessly inconsistent.” Galvin v. Freedom of Information Commission, supra, 459.

The monthly statements at issue here are exempted from disclosure under General Statutes § 1-19 (a) by virtue of General Statutes § 1-83. The disclosure obligation of sheriffs and deputy sheriffs is expressly limited to a simple statement of the annual “amounts and sources of income earned in their capacity as sheriffs or deputy sheriffs . . . .” The general disclosure requirement of § 1-19 (a) does not prevail over the specific limitation of the plaintiff’s disclosure obligations under § 1-83.

There is no error.

In this opinion the other judges concurred.

       The petition for appeal to the Superior Court names three defendants: the freedom of information commission; New Mass. Media, Inc., a Massachusetts corporation doing business under the name New Haven Advocate; and David McKay Wilson, a reporter for the New Haven Advocate. Because only the freedom of information commission is appealing to this court, it is referred to in this opinion as the defendant.

       General Statutes (Rev. to 1987) § 1-83 provides in pertinent part: “(a) All state-wide elected officers, members of the general assembly, . . . sheriffs and deputy sheriffs, . . . shall file, under penalty of false statement, a statement of financial interests for the preceding calendar year with the commission on or before the April fifteenth next in any year in which he holds such a position. . . .
      “(b) (1) The statement, except as provided in subdivision (3) of this subsection, shall include the following information for the preceding calendar year in regard to the individual required to file the statement and his spouse and dependent children residing in the individual’s household: (A) The names of all businesses with which associated; (B) the category or type of all sources of income in excess of one thousand dollars, amounts of income shall not be specified; the names and addresses of specific clients, patients and customers, except when such information is privileged against disclosure under the law or where the ethical standards of a professional group, society or organization of which the individual is a member, prohibit such disclosure without the consent of the client, patient or customer involved, who provided more than five thousand dollars of net income including clients and customers who provided more than five thousand dollars of net income to any business with which the individual was associated, amounts of income not to be specified; (C) the name of securities in excess of five thousand dollars at fair market value owned by such individual, spouse or dependent children or held in the name of a corporation, partnership or trust for the benefit of such individual, spouse or dependent children for the purpose of divesture of all control and knowledge of assets in order to avoid a conflict of interest during such individual’s term of office, only the existence of such trust and the name of the trustee shall be included, but the value shall not be specified; (D) all real property and its location, whether owned by such individual, spouse or dependent children’or held in the name of a corporation, partnership or trust; (E) the names and addresses of creditors to whom the individual, his spouse or dependent children, individually, owed debts of more than ten thousand dollars; and (F) any leases or contracts with the state held or entered into by the individual or a business with which he was associated; (2) every individual subject to this section shall file a disclosure with the commission of any fees or honorariums received for any appearance or the delivery of an address to any meeting of any organization. Such disclosure shall be made within thirty days after receipt of such fee or honorarium; (3) the statement of financial interests filed by sheriffs and deputy sheriffs shall include only amounts and sources of income earned in their capacity as sheriffs or deputy sheriffs.
      “(c) The statement filed pursuant to this section shall be a matter of public information, except the list of names, filed in accordance with subparagraph (B) or subparagraph (E) of subdivision (1) of subsection (b) of this section shall be sealed and confidential and for the use of the commission only after a complaint has been filed under section 1-82 and such complaint has been determined by a vote of the commission to be of sufficient merit and gravity to justify the unsealing of such list or lists and not open to public inspection unless the respondent requests otherwise.”


author: Spallone, J.

text:
    Frank Jacobs v. Harold Thomas
    (6727)
    Spallone, Stoughton and Norcott, Js.
    Argued December 7, 1988
    decision released April 25, 1989

      Kerry M. Wisser, for the appellant (plaintiff).

      Charles W. Bauer, for the appellee (defendant).
   Spallone, J.

The plaintiff appeals from the judgment rendered after the trial court directed a verdict for the defendant. The plaintiff claims the trial court erred (1) in directing the verdict for the defendant, and (2) in refusing to allow the plaintiffs expert to testify for the purpose of establishing prospective profits, which, the plaintiff claimed, was a proper measure of damages for the defendant’s breach of their partnership agreement. Our decision on the plaintiff’s first claim of error is dispositive of the appeal. We find error.

The plaintiff brought an action for damages against the defendant for breach of an oral partnership agreement. At trial, the plaintiff offered evidence intended to establish that the plaintiff and the defendant entered into an oral agreement to form a partnership for the purpose of purchasing and rehabilitating two apartment buildings and thereafter either renting the apartments or selling the buildings. The plaintiff testified about the various discussions he had had with the defendant regarding the project and about their efforts to estimate the costs associated with it. Testimony regarding the parties’ agreement was presented. At the close of the evidence, the defendant moved for a directed verdict. After questioning the plaintiff’s counsel regarding the plaintiff’s claims, the court granted the defendant’s motion for a directed verdict, ruling that there was no evidence that the buildings ever could have been purchased for $65,000, the amount the plaintiff had testified the parties planned to pay, and that, without such evidence, there was no proof of a contract. The court denied a subsequent motion by the plaintiff to set aside the verdict.

The trial court’s ruling was based upon an implicit factual assumption: that the parties intended and agreed that their agreement was conditioned upon successful negotiation of a purchase price for the buildings of no more than $65,000. The court in effect made a factual finding regarding a term of the alleged oral agreement entered into by the parties. In so doing, the court improperly assumed the jury’s factfinding function. Litigants have the right to have issues of fact as to which there is room for a reasonable difference of opinion among fairminded people passed upon by the jury and not by the court. Palomba v. Gray, 208 Conn. 21, 25, 543 A.2d 1331 (1988); Seals v. Hickey, 186 Conn. 337, 350, 441 A.2d 604 (1982); Dacey v. Connecticut Bar Assn., 170 Conn. 520, 540, 368 A.2d 125 (1976). Whether an oral partnership agreement has been entered is a question of fact. 59A Am. Jur. 2d, Partnership § 211. The terms of such an agreement are ascertained by determining the intent of the parties, which is a question of fact. See Kasper v. Anderson, 5 Conn. App. 358, 361, 498 A.2d 132, cert. denied, 197 Conn 818, 501 A.2d 388 (1985). It is the jury’s function to determine which inferences should be drawn from evidential facts if reasonable minds may differ as to the inferences to be drawn, even where those facts do not seem to be in dispute. 59A Am. Jur. 2d, Partnership § 210.

Our review of the record reveals that the facts regarding the existence and terms of the alleged oral agreement between the parties were in dispute at trial. The testimony conflicted on these issues, and resolution of the factual questions raised depended upon judgments regarding the credibility of the witnesses, the weight to be given the evidence, and the inferences to be drawn from the testimony. These are matters for the jury. Dacey v. Connecticut Bar Assn., supra. The trial court erred in making a factual finding regarding the content of the alleged agreement between the parties and directing a verdict on that basis.

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

In this opinion the other judges concurred.

       The plaintiffs Amended Complaint set forth the following allegations:
      “1. In May of 1985 the plaintiff proposed to the defendant, and he accepted, a partnership for the purchase and rehabilitation of the premises known as 162-164 and 166-168 Homestead Avenue in Hartford, Connecticut, which premises consist of two six-family houses.
      “3. The plaintiff prepared a contract between the owner of the premises and the defendant (as the transaction was being done in defendant’s name) and tendered to the defendant a check for one-half of the deposit.
      “2. The plaintiff and the defendant were equal partners for the acquisition, rehabilitation and ownership of the premises.
      “4. The plaintiff maintained contact with the defendant for the months following May 1985 during which time the defendant assured the plaintiff that he was finalizing the deal with the seller.
      “5. In December 1985, the plaintiff’s check was returned, never having been cashed, and the defendant informed the plaintiff that the plaintiff would no longer be involved in the acquisition or rehabilitation of the premises.
      “6. Subsequent thereto, the plaintiff became aware of the fact that the defendant had purchased the premises in October of 1985.

        “7. As a result of the actions of the defendant aforesaid, the plaintiff was deprived of the benefit of his bargain and lost the expectancy of acquiring and rehabilitating said premises, all to his loss and damage.”

       The following interchange took place between the court and the plaintiff’s counsel:
      “The Court: And what was said in the agreement about the purchase price of the buildings?
      “Mr. Wisser: Sixty-five thousand dollars was what they wanted to purchase the building for. Again, I believe it’s very reasonable to assume that something in that area—
      “The Court: What was said? WThat was the agreement?
      “Mr. Wisser: They would offer —
      “The Court: Of the purchase price of the building?
      “Mr. Wisser: They would offer sixty-five thousand dollars for the building.
      “The Court: And then what was the agreement in regard to what would happen if the sixty-five thousand dollars were refused?
      “Mr. Wisser: As long as the numbers worked —
      “The Court: I am talking about Mr. Jacobs’ testimony. What specific agreement has he testified to as to what would happen if the sixty-five thousand dollars was not enough?

      “Mr. Wisser: He did not specifically testify as to what would be done in that situation.
      “The Court: So if the sixty-five thousand dollars weren’t enough the partnership agreement is at an end, isn’t it?

      “Mr. Wisser: No, I think from the testimony that Mr. Jacobs testified to it can clearly be inferred and it can reasonably be inferred that they had figured out the numbers and what it was worth to do the building and what
      “The Court: Now you are speculating like a magician. Under what theory, basis or fact is there any agreement by Mr. Thomas that he will offer ten cents more than sixty-five thousand dollars?

        “Mr. Wisser: The fact that they agree on this agreement.
      “The Court: To do what, to buy it for a million?
      “Mr. Wisser: No, your Honor.
      “The Court: To buy it for two million?
      “Mr. Wisser: No, your Honor.
      “The Court: Then what specific facts have we got that Mr. Thomas is ever going to spend more than sixty-five thousand dollars?

      “Mr. Wisser: They had a formula which they used.
      “The Court: What was the formula? I didn’t hear any formula.
      “Mr. Wisser: The numbers that were —
      “The Court: What numbers? Tell me them.
      “Mr. Wisser: The numbers that Mr. Jacobs put on his calculator that Mr. Thomas indicated were written down which said when it was a good deal and when it wasn’t.
      “The Court: And what were those numbers?
      “Mr. Wisser: We don’t have specifics.
      “The Court: Of course, you don’t have specifics.
      “Mr. Wisser: We had between a hundred and —
      “The Court: You haven’t got a case either.” (Emphasis added.)