author: O’Connell, J.

text:
    Ana Velazquez v. Marine Midland Automotive Financial Corporation
    (9034)
    Dupont, C. J., Spallone and O’Connell, Js.

      Argued December 3, 1990
    decision released April 16, 1991

      Joanne S. Faulkner, for the appellant (plaintiff).

      Rochelle S. Wood, with whom, on the brief, was Penny Q. Seaman, for the appellee (defendant).
   O’Connell, J.

The plaintiff brought an action against the defendant, Marine Midland Automotive Financial Corporation (Midland), seeking statutory damages after Midland repossessed her automobile. The court determined that the plaintiff was not entitled to damages, and the plaintiff subsequently filed this appeal. The plaintiff claims that the court improperly (1) granted Midland a continuance to introduce the originals of certain documents requested in discovery by the plaintiff, (2) held that Midland had a right to repossess the car without giving her written notice that late payments would no longer be accepted, and (3) held that Midland’s actions after repossession fully complied with the Retail Instalment Sales Financing Act (RISFA); General Statutes § 42-83 et seq.; and the Uniform Commercial Code (UCC). General Statutes § 42a-9-507. We affirm the judgment of the trial court.

The following facts are relevant. On March 31,1986, the plaintiff purchased a used 1983 Pontiac from a Connecticut car dealer. The plaintiff financed most of the purchase price with the dealer pursuant to a retail installment sales contract (contract). The dealer then assigned the contract to Midland, pursuant to a motor vehicle dealer’s agreement (repurchase agreement). Under this repurchase agreement, the dealer was obligated to pay Midland the balance due under the contract if the plaintiff defaulted and the car was repossessed.

From the start of the relationship, the plaintiff was repeatedly late with her payments. Midland made numerous attempts to arrange for timely payments, and assessed penalty charges for late payments. Between the time the first payment was due, and the repossession of the automobile, the plaintiff was thirty days past due six times, sixty days past due three times, and ninety days past due once.

When the plaintiff was two months in arrears, she promised Midland that she would make her account current by March 27, 1987. The payment was not made. On April 7, 1987, the plaintiff promised to pay by April 9, 1987. Again no payment was made. On April 10, 1987, Midland sent the plaintiff a letter asking her to contact Midland immediately because her account was delinquent, and stating that if the default was not cured the vehicle would be repossessed. Repossession occurred on April 14, 1987, and, on April 15, 1987, Midland sent the plaintiff a formal notice of repossession. This notice advised the plaintiff of her right to redeem the car by paying the repossession charges, and either the unaccelerated or accelerated balance by April 30, 1987, or the car would be sold at a private sale.

On April 15,1987, Midland reassigned the contract and transferred the vehicle to the dealer pursuant to the repurchase agreement and subject to the plaintiff's right of redemption. In June of 1987, the dealer paid Midland the accelerated balance set forth in the repossession notice, less an insurance payment that Midland received for physical damage to the automobile.

The dealer’s payment to Midland did not account for a payment received by Midland after repossession, nor did it reflect interest charges accrued between the date of repossession and the time the dealer paid the contract balance. The net effect was that the dealer paid $56.96 more than the actual accelerated balance. This overpayment was eventually refunded to the dealer.

On the first day of trial, the court granted Midland a continuance so that it could produce the original repurchase agreement. This agreement, along with a five page nonrecourse contract, was introduced into evidence when the trial resumed. The plaintiff unsuccessfully sought to have these documents excluded from the trial.

I

The plaintiff argues that the court improperly granted Midland a continuance to obtain the original repurchase agreement when the plaintiff objected to the admission of copies into evidence. It is undisputed that Midland failed to comply with a pretrial discovery order to produce the original repurchase agreement and several other documents and that the plaintiff was diligent in pressing for compliance with the discovery order. Although we do not condone any flaunting of the rules of discovery, we do not agree with the plaintiff that the nondisclosure automatically required the exclusion of these documents from evidence.

The trial court determined that it would be an injustice to exclude these documents from evidence. Instead of exclusion, the trial court offered the plaintiff a continuance, and ordered Midland to pay $1750 in counsel fees to the plaintiff for the delay. The plaintiff refused the continuance but accepted the $1750.

The appropriateness of a sanction is within the discretion of the court. Sturdivant v. Yale-New Haven Hospital, 2 Conn. App. 103, 107, 476 A.2d 1074 (1984). “Factors to be considered in determining an appropriate sanction are (1) the cause of the [party’s] failure to respond . . . that is, whether it is due to the inability rather than the willfulness, bad faith or fault of the deponent . . . (2) the degree of prejudice suffered by the opposing party, which in turn may depend on the importance of the information requested to that party’s case; and (3) which of the available sanctions would, under the particular circumstances, be an appropriate response to the disobedient party’s conduct.” (Citations omitted.) Pavlinko v. Yale-New Haven Hospital, 192 Conn. 138, 144, 470 A.2d 246 (1984).

Although Midland was at fault for not producing the repurchase agreement earlier, the plaintiff was not prejudiced by this action because Midland consistently represented to her that the transfer of the car to the dealer was made pursuant to such an agreement. The plaintiff’s claim of prejudice is further diminished by the fact that she rejected the court’s offer of a continuance after Midland produced the original agreement.

“The determinative question for an appellate court is not whether it would have imposed a similar sanction but whether the trial court could reasonably conclude as it did given the facts presented.” Mulrooney v. Wambolt, 215 Conn. 211, 222, 575 A.2d 996 (1990). Under the circumstances of this case, one appropriate response to Midland’s conduct was to award the plaintiff counsel fees for an extra day of trial, and to offer the plaintiff a continuance for any necessary preparation required because of the admission of the agreement.

II

The plaintiff next claims that because Midland repeatedly demanded and accepted late payments it lost the right to repossess the vehicle without first giving the plaintiff written notice that the payment schedule would be strictly enforced and that late payments would no longer be tolerated. The gravamen of the plaintiff’s argument is that Midland should not be permitted to invoke a formal provision of the agreement that the plaintiff reasonably believed would not be enforced.

Subsequent to the trial of the present case, our Supreme Court in Gaynor v. Union Trust Co., 216 Conn. 458, 468-70, 582 A.2d 190 (1990), held that a creditor’s toleration of one or more defaults does not require a creditor to indulge subsequent late payments. In Gaynor, as here, the creditor had diligently pressed a chronically delinquent debtor and accepted whatever payments were forthcoming. Similarly, the trial courts in each case found that the repossessions were precipitated by the debtors’ default after specific promises of payment and that the debtors were not lulled into believing that the creditors intended to relinquish the right to receive timely payments or to repossess the collateral upon a failure to pay in accordance with the contract.

In addition to the contractual right to repossess the automobile, the court in the present case also found that Midland had a statutory right to repossess the car without notice when the plaintiff defaulted. General Statutes § 42-98 (c), a part of RISFA, provides in relevant part: “If the holder of such [installment loan] contract does not give the notice of intention to retake . . . he shall retain such goods for fifteen days after the retaking within the state in which they were located when retaken. During such period the retail buyer . . . may redeem such goods . . . .” The court found that Midland fully complied with this statute when it repossessed the plaintiff’s car. Accordingly, we conclude that the trial court properly determined that Midland had both a statutory as well as contractual right to repossess the plaintiff’s car without first giving notice that late payments were no longer going to be tolerated.

Ill

The plaintiff next claims that the notice sent by Midland after repossessing her car failed to satisfy the UCC and RISFA. She contends that the postrepossession notice misrepresented her redemption rights and inaccurately stated her accelerated balance. The plaintiff further maintains that Midland failed to send her notice of the sale proceeds as required by RISFA. We reject the plaintiffs arguments.

A

Midland’s postrepossession letter stated that the plaintiff could redeem her automobile until April 30, 1987. The plaintiff asserts that this notice misrepresented her right of redemption because the UCC, General Statutes § 42a-9-506, provides that a debtor can redeem at any time before the secured party disposes of the collateral. The car was sold by the dealer on December 8, 1987.

This apparent contradiction between the UCC requirements, and RISFA § 42-98 (c) was addressed in Gaynor v. Union Trust Co., supra, 472-73. The Gay-nor court recognized that although the UCC requires reasonable notification from a secured creditor as to the disposition of a debtor’s property, the UCC’s redemption section, General Statutes § 42a-9-506, does not impose any further notice requirements on a secured party who complies with RISFA’s redemption statute. “These notice requirements ... do not envisage that the secured creditor must provide specific guidance for the unlikely event that a consumer debtor who could not redeem his property by paying his unaccelerated debt at the time of repossession would be in a position, shortly thereafter, to repay his larger accelerated debt.” Id., 473. Thus, we conclude that the defendant did not misrepresent the plaintiff’s redemption rights in the April 15, 1987 notice.

B

In addition, the trial court properly found that Midland’s notice fairly and accurately stated the accelerated and unaccelerated sums required to redeem her car. The plaintiff asserts that the accelerated balance was incorrect because it failed to account for any rebate of credit insurance. To support her argument, the plaintiff contends that General Statutes (Rev. to 1987) § 38-256 (b) (now § 38a-652) required Midland to rebate the credit insurance from the accelerated payoff figure. Section 38a-652 (b) provides in relevant part: "[I\n the event of termination of the insurance prior to the scheduled maturity date of the indebtedness, any refund of an amount paid by the debtor on insurance shall be paid or credited promptly to the person entitled thereto . . . .’’(Emphasis added.) This statute is not relevant because the insurance was not terminated because the contract was simply transferred to the dealer and the loan was not closed. If a credit insurance rebate was due it was the responsibility of the dealer to whom the collateral was transferred to arrange for the rebate.

The plaintiff also asserts that her contract with Midland required the accelerated balance to be reduced by certain insurance credits. The pertinent clause in the contract reads: “If I do default, you may, without telling me, declare the entire unpaid balance due at once. You can then require me to pay that balance immediately (but you must give me the same credits and adjustments as you would if I prepaid in full). Then, if I don’t pay you immediately, I will pay you interest at the highest lawful rate figured on the unpaid balances (after you give me the agreed credits and adjustments).” This clause pertains to the parties’ rights once the full unpaid balance of the debt is declared due after a default.

The debt was not declared due in Midland’s notice of April 15,1987. That notice only required the plaintiff to redeem her car by April 30, 1987, by paying either her balance in full plus the costs of retaking or the past due installments plus retaking expenses. If the plaintiff elected to pay the accelerated amount, General Statutes § 42-96 would have required Midland to credit her balance. When Midland sent the notice, the statutory and contractual duty to credit the accelerated balance had not become operative. The accelerated balance became due only after the redemption deadline passed, and the plaintiff failed to redeem.

The plaintiff also claims that Midland’s notice contained an inaccurate payoff figure because it failed to account to her for a surplus. This argument is without merit because the surplus alleged in the plaintiffs brief quickly disappears once the repossession costs are added to the accelerated balance. In fact, the only surplus arose from an insurance payment to Midland for property damage to the vehicle. Midland did not receive this payment until after the repossession notice was sent to the plaintiff, and, therefore, could not be expected to account for this surplus at the time the notice was sent.

C

The plaintiff also argues that Midland failed to satisfy RISFA § 42-98 (e) which requires that, within thirty days of the resale, the holder of the contract shall give the retail buyer a written statement itemizing the disposition of the proceeds. She maintains that the transfer of her automobile from Midland to the dealer constituted a sale, and that Midland’s failure to give her notice of the proceeds of this sale was a statutory violation.

The trial court concluded that the transfer of the vehicle was not a sale for purposes of § 42a-9-504 of the UCC. Section 42a-9-504 (5) expressly provides in relevant part: “A person who is liable to a secured party under a . . . repurchase agreement or the like and who receives a transfer of collateral from the secured party . . . has thereafter the rights and duties of the secured party. Such a transfer of collateral is not a sale or disposition of the collateral under this article.” (Emphasis added.) According to this statute, Midland relinquished to the dealer its statutory rights and obligations as a secured creditor. The plaintiff’s attempt to characterize this transaction as a sale requiring notice is not consistent with the plain meaning of the statute. Because this transfer was not a sale under the UCC, Midland was not required to send the plaintiff notice of the proceeds it received from the dealer.

Ironically, the reason for not labeling this transaction a sale is to protect the debtor from liability for a deficiency claim by the secured creditor. Section 42a-9-504 (5) ensures that the value of repossessed collateral is measured by a bona fide sale, and not by an artificial value, usually the balance due on the debtor’s contract, set by a repurchase agreement between a dealer and a finance company. See Reeves v. Associates Financial Services Co., 197 Neb. 107, 115, 247 N.W.2d 434 (1976). The trial court was correct in finding that the transfer of the repossessed vehicle was not a sale for purposes of the UCC.

This same analysis also defeats the plaintiff’s claim that Midland had a duty to notify her of this transaction under § 42-98 (e) of RISFA. Section 42-98 (e) provides in pertinent part: “Within thirty days of the resale, the holder of the contract shall give the retail buyer a written statement itemizing the disposition of the proceeds.” Because the transfer of a car between Midland and the dealer was not a sale, we conclude that Midland had no duty under RISFA to notify the plaintiff of the transfer. Therefore, we agree with the trial court that it was the dealer who had the duty to notify the plaintiff of any proceeds from the eventual sale of the vehicle pursuant to § § 42a-9-504 (3) and 42-98 (e). The dealer is not, however, a party to this action, nor does the plaintiff, as expressly stated in her brief, seek any statutory damages from the dealer. Accordingly, we conclude that Midland was not required to give the plaintiff notice of any sale proceeds under RISFA.

Additionally, the plaintiff’s failure to prove that Midland violated any provisions of the UCC or RISFA mandates that this court reject the plaintiff’s Connecticut Unfair Trade Practice claims. Gaynor v. Union Trust Co., supra, 482-83. This result is further supported by the trial court’s finding that Midland never defrauded, prejudiced, misled, deceived or unfairly dealt with the plaintiff.

In view of our disposition of this appeal, no other claims need to be addressed.

The judgment is affirmed.

In this opinion the other judges concurred.

       The unaccelerated balance is the amount required to make the account current. The accelerated balance is the total amount due on the loan.

       The plaintiff also argues that the trial court should have excluded the documents (1) because the repurchase agreement contradicted the defendant’s admission of an allegation in her complaint, and (2) because the defendant did not plead the repurchase agreement as a special defense. Review is unwarranted for these claims because the plaintiff has failed to adhere to the rules governing appellate review. These claims constitute mere bare assertions with no legal analysis. She has neglected to research the law or to formulate any reasoned legal analysis with respect to these claims. See State v. Smith, 10 Conn. App. 624, 635, 525 A.2d 116, cert. denied, 204 Conn. 809, 528 A.2d 1156 (1987). Under these circumstances, the defendant’s claims are deemed abandoned and review denied. Aillon v. Meachum, 211 Conn. 352, 356 n.4, 559 A.2d 206 (1989); State v. Smith, supra; State v. Knighton, 7 Conn. App. 223, 226, 508 A.2d 772 (1986).

       The April 15, 1987, letter read as follows:
      “Your 1983 Pontiac has been repossessed by Marine Midland Consumer Credit Corporation. You are hereby notified that the vehicle is presently being held at Berlin, CT and can be redeemed at that location until 4/30/87. The estimated costs for redemption of your vehicle are listed below. If you do not redeem the above vehicle within the prescribed time period, at the address above, the vehicle will be sold at a private sale.
      “You have the right to redeem the collateral by either paying the balance in full plus the expenses of retaking or by paying the past due installments plus the expenses of retaking. Expenses of retaking may include, where applicable, towing, storage, etc. By paying one of the following total dollar amounts, in certified funds, you may redeem the vehicle.
      Balance in Full $ 7537.15 Past due Installments $ 856.70
      Estimated Expenses $ 432.50 Estimated Expenses $ 432.50
      Total $7969.65 Total $1289.20
      “This amount which is subject to change as additional payments become due and/or storage charges continue to accrue, must be paid prior to the date set above. You will be notified of sale proceeds. Any personal property present in the collateral at the time of repossession is being held in storage for you and must be claimed within twenty (20) days.
      “Your prompt response can save you additional expense. In addition to the costs listed above, you should be aware that a repossession sale may not realize a sufficient amount to satisfy the obligation in full. If the net proceeds at the sale, after expenses, do not equal your unpaid balance, you may be held liable for the deficiency.
      “We urge you to act promptly.”

       General Statutes § 42a-9-506 provides: “At any time before the secured party has disposed of collateral or entered into a contract for its disposition under section 42a-9-504 or before the obligation has been discharged under section 42a-9-505 (2) the debtor or any other secured party may unless otherwise agreed in writing after default redeem the collateral by tendering fulfillment of all obligations secured by the collateral as well as the expenses reasonably incurred by the secured party in retaking, holding and preparing the collateral for disposition, in arranging for the sale, and to the extent provided in the agreement and not prohibited by law, his reasonable attorney’s fees and legal expenses.”

       Although there exists no controlling Connecticut authority, other jurisdictions have concluded that a transfer of repossessed collateral from a financing company to a seller, pursuant to a repurchase agreement, is not a sale or disposition of the collateral under the Uniform Commercial Code. Community Management Assn., Inc. v. Tousley, 32 Colo. App. 33, 40, 505 P.2d 1314 (1976); Stoppi v. Wilmington Trust Co., 518 A.2d 82, 85 (Del. 1986); Reeves v. Associates Financial Services Co., 197 Neb. 107, 115-16 247 N.W.2d 434 (1976); Jefferson Credit Corporation v. Marcano, 60 Misc. 2d 138, 143, 302 N.Y.S.2d 390 (1969).


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    State of Connecticut v. Dean Marquis
    (9578)
    Dupont, C. J., O’Connell and Foti, Js.
    Argued March 19
    decision released April 23, 1991

      Robert P. Hanahan, for the appellant (defendant).

      Leah Hawley, assistant state’s attorney, with whom, on the brief, were John Connelly, state’s attorney, and Maureen Keegan, deputy assistant state’s attorney, for the appellee (state).
   Per Curiam.

This is an appeal from the defendant’s conviction of operation of a motor vehicle while under the influence of liquor in violation of General Statutes § 14-227a (a). The sole issue on appeal is whether the defendant was operating his vehicle within the meaning of the statute.

The defendant contends that his conviction cannot be upheld because he did not intend to operate his vehicle at the time he was arrested. In accordance with our decision in State v. Ducatt, 22 Conn. App. 88, 575 A.2d 708, cert. denied, 217 Conn. 804, 584 A.2d 472 (1990), we affirm the trial court’s judgment of conviction rendered after a jury verdict of guilty.

The jury of six in this case could have reasonably found certain facts. The defendant was drinking beer at an inn in Woodbury on the evening of May 12,1990. In the early hours of May 13,1990, a Woodbury police officer found the defendant leaning against the door of his pickup truck in the parking lot of the inn. The officer left and later returned to find the defendant asleep, sitting in the front seat of his truck with his head resting on the steering wheel. The key was in the ignition and the engine was running. The defendant awoke, and admitted to the officer that he was intoxicated. The officer administered field sobriety tests, which the defendant failed. Thereafter, he was arrested.

The defendant argues that he went to his truck to sleep and turned the key in the ignition solely for the purpose of running the heater to keep the cab warm. He maintains that he did not intend to drive the truck and is not, therefore, culpable under the statute.

An intention to move a vehicle is not an element of the offense of General Statutes § 14-227a (a), operation of a motor vehicle while under the influence. State v. Ducatt, supra. We held in that case that the state is required to prove only that the accused, while legally intoxicated, “manipulates, for any purpose, the machinery of the motor or any other machinery manipulable from the driver’s position that affects or could affect the vehicle’s movement, whether the accused moves the vehicle or not.” Id., 93; see State v. Swift, 125 Conn. 399, 402-403, 6 A.2d 359 (1939).

The judgment is affirmed.

       General Statutes § 14-227a (a) provides in relevant part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both.”


author: Daly, J.

text:
    Town of Groton v. Peter R. Johl
    (8442)
    Daly, O’Connell and Cretella, Js.
    Argued September 27, 1990
    decision released April 23, 1991

      Paul H. Burnham, for the appellant (defendant).

      Lloyd L. Langhammer, for the appellee (plaintiff).
   Daly, J.

The defendant appeals from the trial court’s denial of his motion to vacate a judgment of strict foreclosure rendered on May 30,1989, pertaining to a tract of land located in the town of Groton.

The following facts are not in dispute. The defendant is the partial owner of a tract of unimproved land on Poquonnock Road and Rainville Avenue in Groton. The property was attached by the plaintiff on or about June 7, 1982. On September 29, 1987, the plaintiff obtained a judgment against the defendant in the amount of $59,001. A judgment lien was filed on October 8, 1987, and the plaintiff moved to foreclose the lien by a writ dated April 6,1988. On January 18,1989, the plaintiff filed a motion for judgment of strict foreclosure that was rendered by the trial court on May 30,1989. No appeal was taken from this judgment. On August 1,1989, the defendant filed a motion to vacate the judgment of strict foreclosure that was denied on September 5, 1989. This appeal followed.

The defendant claims that the trial court should have granted his motion to vacate because the trial court lacked jurisdiction, abused its discretion concerning the valuation of the property, should have ordered foreclosure by sale rather than strict foreclosure, and should have granted the defendant’s motion to restore his counterclaim. We disagree.

Whether pursuant to the common law or a statute, the trial court’s granting or refusing an application to open a judgment is generally within the court’s discretion and will not be disturbed on appeal unless such discretion has been clearly abused. General Statutes § 49-15; Hartford Federal Savings & Loan Assn. v. Stage Harbor Corporation, 181 Conn. 141, 143, 434 A.2d 341 (1980).

The defendant’s claim that the trial court lacked subject matter jurisdiction on May 30,1989, was based on a then pending appeal from the judgment underlying the lien at issue. The record indicates, however, that the appeal was dismissed by this court on January 30, 1989, with certification denied by the Connecticut Supreme Court on May 25, 1989. Groton v. Johl, 212 Conn. 801, 560 A.2d 984 (1989). That decision was rendered prior to the trial court’s judgment of strict foreclosure. Thus, the trial court had subject matter jurisdiction. See Practice Book § 4050.

The defendant next claims that the trial court abused its discretion by refusing to reconsider the finding of value made in connection with the judgment of foreclosure rendered on May 30, 1989. That claim, however, would have us retry the evidence of valuation presented to the trial court. The function of an appellate court is to review, not to retry, the proceedings of the trial court. We cannot retry the facts or pass on the credibility of the witnesses concerning the property’s value. Licari v. Blackwelder, 14 Conn. App. 46, 51, 539 A.2d 609, cert. denied, 208 Conn. 803, 545 A.2d 1100 (1988). Thus, the trial court’s findings must stand.

The defendant also claims that the trial court abused its discretion in not ordering a foreclosure by sale. The plaintiff filed a motion for a judgment of strict foreclosure on January 18,1989. The record discloses that the defendant never made any claim for foreclosure by sale, and in fact he suggested a law day of August 1, 1989, at the hearing of April 17,1989. Thus, the defendant’s claim is without basis.

Finally, the defendant argues that the trial court never acted on his motion to restore his counterclaim. On December 6, 1988, the trial court ordered the defendant’s counterclaim to be nonsuited and a default entered for the plaintiff on the complaint because the defendant failed to appear at a pretrial conference. “ ‘The denial of . . . relief to a party which has suffered a default judgment by his failure to defend properly should not be held an abuse of discretion where the failure to assert a defense was the result of the moving party’s own negligence.’ ” (Citations omitted.) Hartford Federal Savings & Loan Assn. v. Stage Harbor Corporation, supra, 143-44. Here, the defendant’s own negligence in failing to appear was the cause of the nonsuit entered for the plaintiff.

After reviewing the present circumstances and the record before us, we cannot say that the trial court abused its discretion in refusing to open the judgment of strict foreclosure.

The judgment is affirmed and the case is remanded with direction to set new law days.

In this opinion the other judges concurred.

       General Statutes § 49-15 provides: “Any judgment foreclosing the title to real estate by strict foreclosure may, at the discretion of the court rendering the same, upon the written motion of any person having an interest therein, and for cause shown, be opened and modified, notwithstanding the limitation imposed by section 52-212a, upon such terms as to costs as the court deems reasonable; but no such judgment shall be opened after the title has become absolute in any encumbrancer.”


author: Heiman, J.

text:
    State of Connecticut v. John J. Brosnan
    (9149)
    Dupont, C. J., Spallone and Heiman, Js.
    Argued January 15
    decision released April 23, 1991

      Jacques J. Parenteau, with whom, on the brief, was Carol Ann Connors O’Dea, for the appellant (defendant).

      Marjorie Allen Dauster, deputy assistant state’s attorney, with whom, on the brief, were C. Robert Satti, Sr., state’s attorney, and Peter McShane, deputy assistant state’s attorney, for the appellee (state).
   Heiman, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of two counts of interfering with an officer in violation of General Statutes § 53a-167a (a) and one count of criminal mischief in the third degree in violation of General Statutes § 53a-117 (a) (1) (A).

The defendant claims that the trial court improperly (1) refused to charge the jury on the defendant’s privilege to resist an unlawful arrest, (2) refused to take evidence to determine whether the Groton police department’s destruction of a certain videotape was done in bad faith, and (3) reserved its decision on his motion for acquittal that was filed after the state’s presentation of evidence. We reverse the judgment of the trial court.

The jury reasonably could have found the following facts. On September 23, 1989, at about 3:15 a.m., the Groton police received a complaint that fireworks were being discharged at an apartment complex located at 359 Long Hill Road. When Officer John W. Lambert responded to the call, he saw the defendant in the parking area of the apartments. In response to Lambert’s questions, the defendant denied any involvement in discharging fireworks, and Lambert left the area.

At about 4:15 a.m., four members of the Groton police department responded to a second complaint that fireworks were being discharged at 359 Long Hill Road. The complainant directed the police officer’s attention to a window that faced the parking lot, and stated that that was the window from which fireworks had been discharged. The police found pieces of paper from discharged firecrackers on the ground in front of this window. They also noticed the remains of exploded bottle rockets in the parking lot. The officers went to the window, which was three or four feet above the ground. They looked in the window and observed red cellophane wrappings on the floor of a bedroom. They also saw the fully clothed defendant lying on top of a bed.

After determining that the window was located in apartment eleven, two officers went to the front door of that apartment and two officers went to the rear sliding door. The officers knocked at the back door, and the tenant, Lisa Conte, answered that door. As these officers entered the apartment through the back door, the other two officers entered through the front door. Three of the officers went into the bedroom where the defendant was sleeping, shook him to awaken him, and told him to get up because he was under arrest. The defendant was groggy and smelled of alcohol. When the officers attempted to pull the defendant from the bed, the defendant attempted to break free, and a struggle ensued. As a result of this struggle, the defendant was charged with interfering with an officer in addition to the fireworks charge that had generated the police activity.

The defendant was transported to the police station and a second struggle ensued in the booking room. In the course of this struggle, the defendant kicked a computer, causing a key to break off in its lock. This resulted in a second charge of interfering with an officer, and one charge of criminal mischief. The jury convicted the defendant of the criminal mischief charge and of both of the interfering charges. He was acquitted of all of the other crimes with which he had been charged.

I

The defendant first claims that the court improperly refused to charge the jury on the common law right to resist an unlawful arrest in the home. We agree with the defendant.

Certain additional facts that were heard by the court out of the jury’s presence must be understood for a proper resolution of this issue. The defendant and Conte, the lessee of the apartment in question, were good friends. The defendant lived in the same apartment complex in an apartment located upstairs from Conte’s. He had stayed overnight at the Conte apartment five or six times over a four year period and was a welcome guest there. On the night of the incident, the defendant was in the apartment with Conte’s permission and at her invitation. He was asleep on her bed at the time the police entered Conte’s bedroom. He testified that it was his belief that no one would enter the bedroom without Conte’s permission, and that he felt that being in her apartment was the same as being in his own apartment. Conte testified by deposition that the police forced their way into the apartment without her permission and entered the bedroom where the defendant was sleeping.

On the basis of these facts, the defendant, in a properly drafted request to charge; see Practice Book § 854; requested the trial judge to instruct the jury that, with respect to the charge of interfering that allegedly occurred at the apartment, the defendant had a qualified common law privilege to resist. The trial court declined to instruct the jury to that effect. We agree with the defendant that he was entitled to such an instruction on that count, and therefore reverse his conviction.

A

The threshold question is whether the defendant has standing to raise this issue. We conclude that the defendant does have the requisite standing.

It is a well recognized precept of constitutional interpretation that the fourth amendment protects people, not places. Katz v. United States, 389 U.S. 347, 351, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). The “capacity to claim the protection of the Fourth Amendment depends . . . upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.” Rakas v. Illinois, 439 U.S. 128, 143, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978). An expectation of privacy is said to be legitimate if it is one that society is prepared to recognize as reasonable. State v. Carter, 22 Conn. App. 118, 121, 576 A.2d 572 (1990). It is clear that under existing federal constitutional law an individual’s status as an overnight guest alone is sufficient to show that the guest has a legitimate expectation of privacy in the premises, and that this interest is protected by the fourth amendment. Minnesota v. Olson, 495 U.S. 91, 110 S. Ct. 1684, 109 L. Ed. 2d 85 (1990); see also State v. Walker, 236 Neb. 155, 160-61, 459 N.W.2d 527 (1990). Thus, as an overnight guest in Conte’s home, the defendant has standing to challenge the warrant-less entry.

As the United States Supreme Court stated in Minnesota v. Olson, supra, 98: “To hold that an overnight guest has a legitimate expectation of privacy in his host’s home merely recognizes the everyday expectations of privacy that we all share. Staying overnight in another’s home is a longstanding social custom that serves functions recognized as valuable by society. We stay in others’ homes when we travel to a strange city for business or pleasure, when we visit our parents, children, or more distant relatives out of town, when we are in between jobs or homes, or when we house-sit for a friend. We will all be hosts and we will all be guests many times in our lives. From either perspective, we think that society recognizes that a houseguest has a legitimate expectation of privacy in his host’s home.

“From the overnight guest’s perspective, he seeks shelter in another’s home precisely because it provides him with privacy, a place where he and his possessions will not be disturbed by anyone but his host and those his host allows inside. We are at our most vulnerable when we are asleep because we cannot monitor our own safety or the security of our belongings. It is for this reason that, although we may spend all day in public places, when we cannot sleep in our own home we seek out another private place to sleep, whether it be a hotel room, or the home of a friend. Society expects at least as much privacy in these places as in a telephone booth—‘a temporarily private place whose momentary occupants’ expectations of freedom from intrusion are recognized as reasonable.’ Katz [v. United States, supra, 361].”

The defendant’s expectation of privacy in the Conte apartment was legitimate because it was rooted in a generally accepted understanding that is recognized and permitted by society. Thus, the defendant can claim the protection of the fourth amendment. Rakas v. Illinois, supra, 144 n.12.

B

Having concluded that the defendant was entitled to claim the protection of the fourth amendment, we next turn to a determination of whether the defendant’s arrest was lawful. We agree with the defendant that it was not.

Because the fourth amendment protects people, not places; Katz v. United States, supra; it necessarily follows that the defendant was entitled to fourth amendment protection within the confines of the Conte apartment. See State v. Carter, supra, 121-22.

The “Fourth Amendment to the United States Constitution, made applicable to the States by the Fourteenth Amendment . . . prohibits the police from making a warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arrest.” (Citations omitted.)Payton v. New York, 445 U.S. 573, 576, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980). The holding in Payton applies with equal force to misdemeanor arrests. State v. Gallagher, 191 Conn. 433, 437 n.4, 465 A.2d 323 (1983). Thus, the arrest of the defendant, under these circumstances, was unlawful.

On appeal to this court, the defendant properly recognizes that the illegality of the arrest did not act as a bar to his prosecution. See Gerstein v. Pugh, 420 U.S. 103, 119, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975); State v. Haskins, 188 Conn. 432, 442, 450 A.2d 828, cert. denied, 479 U.S. 1084, 107 S. Ct. 1285, 94 L. Ed. 2d 143 (1982). What the defendant did claim, however, was that he was entitled to a charge on the common law right to resist an unlawful arrest in support of his defense to the first count of interfering with an officer that was alleged to have occurred within the confines of the Conte apartment. We agree with the defendant that he was entitled to such a charge and that the court improperly refused to charge the jury on this issue.

Under common law precepts, reasonable resistance to an unlawful arrest was privileged conduct. State v. Amara, 152 Conn. 296, 299, 206 A.2d 438 (1964). “Coupling an unlawful arrest with an unlawful entry adds to the seriousness of the governmental intrusion because of the recognized privacy interest that attaches to a private home. In such circumstances, it is reasonable to view the governmental intrusion as especially provocative and a defendant’s resistance to entry and arrest as excusable and therefore privileged. Courts therefore have recognized a greater privilege to resist an unlawful entry into private premises than to resist an unlawful arrest in a public place.” State v. Gallagher, supra, 440.

Although we recognize that General Statutes § 53a-23 restricts the right to resist an arrest by use of physical force whether such arrest is legal or illegal, this statute has consistently been construed so as not to abrogate the common law privilege to resist an unlawful entry. State v. Gallagher, supra, 441. Further, since the statute is in derogation of the common law, it cannot be said to have abrogated the privilege by implication because of the principle of statutory construction that requires that penal statutes in derogation of the common law must be strictly construed. Id.; State v. Kish, 186 Conn. 757, 765, 443 A.2d 1274 (1982).

Our Supreme Court has recognized that the fourth amendment evinces an abhorrence of warrantless physical entry into the privacy of the home, and that this is the chief evil against which the mandate of that amendment is directed. State v. Gallagher, supra, 443. Thus, because the vitality of the expectation of privacy in the home that underlies the common law right continues, “the more patently unlawful the intrusion, the more excusable the resistance becomes.” Id.

We continue to adhere to the rule, so well expressed in Gallagher, that, with respect to entries made into a place where the occupant enjoys a fourth amendment right, that occupant has the common law privilege to offer reasonable resistance, not rising to the level of an assault, to an unlawful entry. These issues, including any issue of consent, are properly issues to be resolved by the trier of fact under the totality of all of the circumstances. State v. Zindros, 189 Conn. 228, 244, 456 A.2d 288 (1983), cert. denied, 465 U.S. 1012, 104 S. Ct. 1014, 79 L. Ed. 2d 244 (1984).

Because the defendant had a reasonable expectation of privacy in Conte’s apartment, he had a right to claim the protection of the fourth amendment and to raise the issue of the common law privilege. Accordingly, we conclude that the court improperly refused to charge the jury with respect to the common law privilege on the charge of interfering that was alleged to have occurred at Conti’s apartment. State v. Gallagher, supra; State v. Carter, supra, 121.

II

The defendant next claims that this case must be remanded to determine whether the destruction of a certain videotape was done in bad faith. He concedes that he did not properly preserve this claim by requesting this specific relief from the trial court, but claims review of this issue for the first time on appeal pursuant to the plain error doctrine and pursuant to the bypass doctrine of State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We agree with the defendant with respect to his plain error claim.

Certain additional facts are necessary for a proper resolution of this issue. After his arrest at the Conte apartment, the defendant was transported to the Groton police station and taken to the booking room. While the defendant was in the booking room, a struggle ensued, resulting in his being charged with a second count of interfering with an officer and one count of criminal mischief in the third degree. At trial, Officer Gary L. Pendelton testified that a videotape was made of the booking room events that had resulted in the lodging of the additional criminal charges. Pendelton testified that a videotape was running at the time of the alleged criminal conduct and that the tape was later erased for reuse, as part of a routine procedure. Pendleton was unable to say when this evidence had been destroyed. The defendant did not become aware that the event had been videotaped or that the tape had been destroyed until Pendleton testified at trial. The defendant never learned of these events despite the fact that he had previously filed a timely motion for the production of all exculpatory information.

This court is authorized to notice plain error that has not been brought to the attention of the trial court when the interest of justice requires such intervention. Practice Book § 4185; State v. Eric T., 8 Conn. App. 607, 614, 513 A.2d 1273 (1986).

The defendant attempted to proffer testimony concerning the destruction of the videotape and the reason for its destruction, but the court sustained the state’s objections to that line of inquiry. Thus, the defendant was unable to establish the reason that the tape had been destroyed.

Although the defendant asserts that the videotape would have been exculpatory in nature, and would have provided material for cross-examination, thereby subjecting it to an analysis under Brady v. Maryland, 373 U.S. 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), nothing in the record supports this assumption. The claim of the defendant also fails to recognize the distinction between evidence that is, in fact, exculpatory in nature and has been suppressed by the state, thereby rendering it subject to a Brady review, and evidence that is potentially exculpatory in nature and subject to analysis under Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988). We conclude that the destruction of the tape in this case falls into the second category of cases, and is thus controlled by Youngblood, and its progeny.

In order properly to resolve the question of whether destruction of the potentially exculpatory evidence rises to the level of a violation of the defendant’s due process rights, we must first resolve the issue of whether the police acted in bad faith when the evidence was destroyed. State v. Leroux, 18 Conn. App. 223, 227, 557 A.2d 1271, cert. denied, 212 Conn. 809, 564 A.2d 1072 (1989). The proper resolution of the issue of whether the police acted in bad faith is a fact bound issue that requires exploration of the officers’ knowledge of the exculpatory nature of the evidence at the time it was destroyed. Id.

Application of the Youngblood principles to this case leads us to conclude that the defendant was not afforded an opportunity to develop this issue. Because of the potential impact of the tape’s destruction on the defendant’s conviction of the second interfering count and the criminal mischief count, both of which arose out of events that occurred at the police station, we conclude that the court’s refusal to allow the defendant an opportunity to question the circumstances surrounding the destruction of the tape constitutes plain error. Thus, further proceedings are required with respect to the second and fifth counts on which the defendant was adjudged guilty.

III

The defendant’s final claim is that the trial court improperly reserved its decision on his motion for acquittal, made at the end of the state’s presentation of evidence, until after the defendant had presented his case. Practice Book § 884. Since it is unlikely that this issue will arise in any subsequent proceeding, we will not address the specific claims of the defendant in this regard. We do note, however, that Practice Book § 884 requires that “the judicial authority shall either grant or deny the motion before calling upon the defendant to present his case in chief.” It is obvious that reserving decision on such a motion does not comply with the clear mandate of the rules of practice. See State v. Cook, 183 Conn. 520, 521-22, 441 A.2d 41 (1981). The defendant makes a due process argument with respect to his claim concerning the violation of this rule of practice. We also note that his brief provides no analysis to support his claim that a violation of Practice Book § 884 rises to the level of a due process violation, or that the record is adequate to provide an Evans-Golding review.

The judgment is reversed with respect to the first count of the information, and the case is remanded for a new trial on the first count. As to the second and fifth counts of the information, those counts are remanded with direction to the trial court to hold a hearing to determine whether the destruction of the videotape was done in bad faith. If the trial court concludes that the action of the police in destroying the videotape was not done in bad faith, then the judgment of the trial court is affirmed as to those counts. If the trial court concludes that the destruction of the videotape was done in bad faith, then the trial court shall set aside the verdict as to the second and fifth counts and grant the defendant a new trial.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 53a-167a. interfering with an officer: class A misdemeanor, (a) A person is guilty of interfering with an officer when he obstructs, resists, hinders or endangers any peace officer or fireman in the performance of his duties.
      “(b) Interfering with an officer is a class A misdemeanor.”

       General Statutes § 53a-117 provides in pertinent part: “criminal mischief IN THE THIRD DEGREE: CLASS B MISDEMEANOR, (a) A person is guilty of criminal mischief in the third degree when, having no reasonable ground to believe that he has a right to do so, he: (1) Intentionally or recklessly (A) damages tangible property of another . . . .”

       The defendant also attacks the trial court’s denial of his motion to suppress physical evidence. Because he was acquitted on the counts that this evidence applied to, this claim is rendered moot. His claim that the court failed to rule on his motion for acquittal that was made pursuant to Practice Book § 883 at the completion of the prosecution’s case is also rendered moot by our resolution of his first and second claims.

       The defendant’s request to charge reads as follows:
      “Privilege to Resist
      “As I have previously advised you, John J. Brosnan is accused of the crime of resisting arrest. The fourth amendment to the United States Constitution, made applicable to the state by the fourteenth amendment, prohibits the police from making a warrantless and nonconsensual entry into a suspect’s home in order to make a routine misdemeanor arrest. I charge you that John Brosnan had been charged with misdemeanors. At common law reasonable resistance to an unlawful arrest was privileged conduct. Coupling an unlawful arrest with an unlawful entry adds to the seriousness of the government’s intrusion because of the recognized privacy interest that attaches to a private home. In such circumstances it is reasonable to view the governmental intrusion as especially provocative and defendant’s resistance to entry and arrest as excusible and therefore privileged. Courts have recognized a greater privilege to resist an unlawful entry into private premises than to resist an -unlawful arrest in a public place. Therefore, an unlawful, warrantless intrusion into the home creates a privilege to resist and punishment of such resistance is therefore improper. In other words, there is a constitutional right to resist unlawful, warrantless entry under the United States Constitution based upon the expectation of privacy in the home which underlies the common law right. The more patently unlawful the intrusion, the more excusable the resistance becomes. So, there is a right to resist an unlawful arrest so long as the resistance does not rise to the level of an assault. Therefore, if you find that the police did not have a warrant to arrest John Brosnan at the time they entered Lisa Conte’s apartment and that there was no consent to allow that entry, then you must find that John J. Brosnan’s arrest was unlawful and his resistance a privilege so long as you do not find that the resistance amounted to an assault upon the police officer. State v. Gallagher, 191 Conn. 433[, 437 n.4, 465 A.2d 323] (1983).”

       See footnote 4, supra, for text of the defendant’s request on this issue.

       General Statutes § 53a-23 provides: “use of physical force to resist arrest NOT JUSTIFIED. A person is not justified in using physical force to resist an arrest by a reasonably identifiable peace officer, whether such arrest is legal or illegal.”

       Because of our reliance on the plain error doctrine encompassed in Practice Book § 4185, we do not feel it necessary to provide an Evans-Golding analysis. See State v. Luca, 19 Conn. App. 668, 670-71 n.2, 563 A.2d 752 (1989).


text:
    Farmers and Mechanics Bank v. Nicholas C. Arbucci et al.
    (9547)
    O’Connell, Lavery and Cretella, Js.
    Argued March 27
    decision released April 23, 1991

      Dale H. King, for the appellant (named defendant).

      Harry B. Heller, for the appellee (plaintiff).
   Per Curiam.

The plaintiff bank brought an action for foreclosure of residential property in Old Lyme. The amended complaint contained two counts. The first count sought a strict foreclosure or foreclosure by sale of the property secured by a mortgage in the amount of $150,000 given to the plaintiff bank. The second count sought strict foreclosure or foreclosure by sale of the second mortgage in the amount of $200,000, also given to the plaintiff by the defendant.

The defendant filed an objection to judgment by strict foreclosure alleging that there was equity in the property and other equitable reasons for a decree of sale.

On September 4,1990, the trial court held a hearing on the issue of valuation of the property. The plaintiff presented the testimony of a qualified independent appraiser who stated that he conducted an outside inspection of the property on December 29, 1989, but that he was denied access to the interior by the defendant. The appraiser also consulted records of the property on file with the town clerk’s office. On the basis of this information, in conjunction with information concerning comparable sales, the appraiser valued the property at $275,000 as of December, 1989, and, due to depressed market conditions, $225,000 as of September, 1990.

The defendant testified that he was a carpenter and had built the house himself with special features including extensive woodwork and Italian tile. The defendant testified that the number of bathrooms and bedrooms was different from that indicated on the records at the town clerk’s office, which were relied upon by the plaintiff’s appraiser. It was the defendant’s opinion that the property was worth at least $400,000.

The trial court found the value of the property to be $225,000, but acknowledged that the defendant had invested considerably more in it. Because the court found that the debts on the first and second mortgages exceeded $340,000, it ordered a judgment of strict foreclosure.

On appeal, the defendant challenges the trial court’s determination of the value of the property and the judgment of strict foreclosure.

In a case such as this, the determination of value is a major factor in the decision whether to allow a foreclosure by sale rather than a strict foreclosure. If the appraised value of the property exceeds the debt, a foreclosure by sale might offer some relief to subsequent encumbrancers. In a foreclosure proceeding the trial court must exercise its discretion and equitable powers with fairness not only to the foreclosing mortgagee, but also to subsequent encumbrancers and the owner. Fidelity Trust Co. v. Irick, 206 Conn. 484, 538 A.2d 1027 (1988); see also Connecticut Savings Bank v. Burger, 23 Conn. App. 192, 579 A.2d 1097 (1990).

In this instance, the plaintiff offered the expert testimony of a qualified independent real estate appraiser. The ability of this appraiser to establish an accurate value of the subject property was thwarted by the defendant’s refusal to allow the appraiser access to the inside of the house. The defendant had the opportunity to present his own expert, but declined and instead offered his own opinion. The determination of value by a court is aided ordinarily by the opinion of expert witnesses, and reached by weighing those opinions in light of all the circumstances in evidence bearing upon value and in light of the court’s own general knowledge of the elements going to establish it. Voluntown v. Rytman, 21 Conn. App. 275, 286-87, 573 A.2d 336, cert. denied, 215 Conn. 818, 576 A.2d 548 (1990).

The trial court chose to credit the testimony of the independent appraiser over that of the defendant in establishing value. This was reasonable and well within the trial court’s province as the trier of fact. Once the trial court determined a value and found that the debt exceeded the value by more than $100,000, there was no abuse of discretion in ordering strict foreclosure.

The judgment is affirmed.


author: Spallone, J.

text:
    State of Connecticut v. Robert Cooley
    (9295)
    Spallone, O’Connell and Norcott, Js.
    Argued February 15
    decision released April 23, 1991

      Roger J. Frechette, with whom was Matthew E. Frechette, for the appellant (defendant).

      Mary H. Lesser, assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and John OReilly, assistant state’s attorney, for the appellee (state).
   Spallone, J.

The defendant appeals from his conviction, rendered after a jury trial, of the crimes of criminal trespass in the second degree in violation of General Statutes § 53a-108, and interfering with an officer in violation of General Statutes § 53a-167a (a). On appeal, the defendant’s underlying claim is that the evidence introduced was insufficient, as a matter of law, to support his conviction. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. The defendant, along with scores of others, staged a demonstration in West Hartford at the Summit Women’s Center, a medical facility in which abortions are performed. The defendant entered the facility with many others although he had no privilege or license to do so. He was found and arrested in an examination room in the facility.

Our review of an insufficiency of the evidence claim is limited not only by our own statutory and constitutional role, but also by the parties’ constitutional right to have a jury decide issues of fact. Bambus v. Bridgeport Gas Co., 148 Conn. 167, 169, 169 A.2d 265 (1961); Shea v. Paczowski, 11 Conn. App. 232, 234, 526 A.2d 558 (1987). When an insufficiency claim is made, this court undertakes a limited two part inquiry. We first examine all of the evidence presented at trial, construing it in the light most favorable to upholding the jury’s verdict. State v. Mazzetta, 21 Conn. App. 431, 574 A.2d 806, cert. denied, 216 Conn. 807, 588 A.2d 64 (1990). We then determine whether, “ ‘ “upon the facts thus 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. Plourde, 208 Conn. 455, 458, 545 A.2d 1071 (1988), cert. denied, 488 U.S. 1034, 109 S. Ct. 847, 102 L. Ed. 2d 979 (1989).

It is the jury’s right and duty to consider the evidence presented at trial and to draw reasonable inferences from that evidence. State v. Schoenbneelt, 171 Conn. 119, 126, 368 A.2d 117 (1976); Speed v. DeLibero, 23 Conn. App. 437, 440, 580 A.2d 1242 (1990). The jury may accept or reject the testimony of any witness; Zarembski v. Three Lakes Park, Inc., 177 Conn. 603, 608, 419 A.2d 339 (1979); and determines the weight to be given the evidence. Angelica v. Fernandes, 174 Conn. 534, 535, 391 A.2d 167 (1978).

Our review of the record, transcripts and briefs in the light most favorable to upholding the jury’s verdict reveals that there was sufficient evidence presented by the state to support the guilty verdict as rendered by the jury. From that evidence, and the reasonable inferences drawn therefrom, the jury could have reasonably concluded as it did. Thus, the defendant’s claim of insufficient evidence fails.

The judgment is affirmed.

In this opinion the other judges concurred.


text:
    Cathy Polomski v. Ronald Polomski
    (9303)
    Spallone, O’Connell and Norcott, Js.
    Argued February 15
    decision released April 23, 1991

      William E. McCoy, for the appellant (plaintiff).

      Sheila S. Horvitz, for the appellee (defendant).
   Per Curiam.

On appeal from the judgment dissolving the parties’ marriage, the plaintiff claims that the trial court failed to give proper weight to the testimony of her expert witness regarding the value of the marital residence and that the trial court abused its discretion in distributing the marital assets. We affirm the judgment of the trial court.

Appellate review of financial orders following a judgment of dissolution is limited. Our role is to determine whether the court correctly applied the law and could reasonably have concluded as it did. Rostain v. Rostain, 214 Conn. 713, 716, 573 A.2d 710 (1990); Caristia v. Caristia, 22 Conn. App. 392, 395, 577 A.2d 1096 (1990). We will not reject the trial court’s factual findings because we disagree with its conclusions or may have found differently had we been sitting as the finder of fact. Bonelli v. Bonelli, 22 Conn. App. 248, 251-52, 576 A.2d 587 (1990).

In appraising property, the trier of fact makes an independent determination of value in light of all of the circumstances of the case and the evidence presented. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 220, 435 A.2d 24 (1980); Birnbaum v. Ives, 163 Conn. 12, 21, 301 A.2d 262 (1972). As the trier of fact, the court may accept or reject the testimony of an expert witness in whole or in part; Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 832 (1981); and its decision is accorded great deference. Breen v. Breen, 18 Conn. App. 166, 174, 557 A.2d 140 (1989). Ultimately, the determination of the value of real estate rests on the considered judgment of the trial court which takes into account the different opinions expressed by the witnesses. Moss v. New Haven Redevelopment Agency, 146 Conn. 421, 425, 151 A.2d 693 (1959).

Upon careful examination of the parties’ briefs, the record, and the trial transcript, we conclude that the court acted within its discretion.

The judgment is affirmed.


author: Dupont, C. J.

text:
    State of Connecticut v. Arthuly S. Shaw
    (8036)
    Dupont, C. J., Daly and Landau, Js.
    Argued December 11, 1990
    decision released April 23, 1991

      John F. Kavanewsky, Jr., for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Stephen J. Sedensky III, assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

The defendant appeals from the judgments of conviction, rendered after a jury trial, of four counts of conspiracy to commit forgery in the second degree in violation of General Statutes §§ 53a-48 and 53a-139 (a) (3). He was tried with a codefendant, Romane Moore, who was found guilty of four counts of forgery in the second degree, in violation of General Statutes § 53a-139 (a) (2). The charges against the codefendants arose out of the same factual circumstances, although Moore was not charged with conspiracy.

This case involves a scheme to procure, for a profit, forged Connecticut drivers’ licenses. The jury could reasonably have found certain facts. On January 19,1983, the defendant accompanied Anthony Carswell to the department of motor vehicles in Bridgeport. The defendant obtained an application for a driver's license. Meanwhile, the codefendant, who was then employed as a clerk-typist at the department and was the defendant’s live-in girl friend, retrieved from a computer the name, address and other relevant information of a person who had not renewed his license. The codefendant then gave this information to the defendant and Carswell. Carswell paid the eodefendant $250, and, using the information provided by her, he filled out the application for a driver’s license. Robin Hudson, another employee, vouched for the identification of Car-swell as the person whose name had been retrieved from the computer by the codefendant. At the time, it was an accepted practice at the Bridgeport office to allow employees to identify license applicants for the purpose of verifying the applicant’s identity. Carswell was then photographed, and his application was processed. As a result, Carswell received a license issued in another’s name with Carswell’s picture on it.

Substantially the same procedure was repeated on June 16, 1983. The defendant drove Carswell to the department of motor vehicles in Bridgeport. After Carswell had obtained an application, the codefendant supplied him with a name and the other necessary information. Carswell again filled out the application with the information provided by the codefendant and then either the codefendant or Hudson identified Carswell as that person. Carswell paid the codefendant or the defendant $250 for this license with Carswell’s picture on it but with another’s name.

After obtaining this license, Carswell left the building and returned to the defendant’s car. From the defendant’s car, he observed the defendant and Robert Carter conversing in Carter’s car in the parking lot. Carswell followed the defendant and Carter into the motor vehicle office. He saw the codefendant hand Carter a piece of paper with a name and address on it and then watched Carter fill out an application for a driver’s license. After an unidentified employee vouched for Carter’s identity, he was photographed and his application for a driver’s license was processed.

Carswell, after observing Carter obtain a license, then obtained a second license in a manner similar to that used earlier that day. He again paid either the codefendant or the defendant $250 for this second license bearing his picture but another’s name. Carter was later arrested and found to possess a license, with his picture on it in the name of another person, issued in the Bridgeport office on June 16, 1983.

On appeal, the defendant has raised two issues. First,, he challenges additional instructions given to the jury midway through its deliberations. Second, the defendant claims that the multiple convictions of conspiracy arising out of the events that occurred on June 16, 1983, were duplicative.

The defendant argues that his due process rights under both the federal and the state constitutions were violated when the trial court reinstructed the jury, midway through its deliberations, that it could find the defendant guilty of conspiracy if he conspired with the codefendant or, in the alternative, with “other parties.” Specifically, the defendant claims that the court’s reinstruction invited the jury to speculate and to render a verdict that was not based on any evidence in the case. The defendant contends that the only evidence of conspiracy related to his codefendant and that there was no evidence from which a jury could find, beyond a reasonable doubt, that a conspiracy existed with others. He further asserts that this instruction completely failed to recite the elements of conspiracy as applied to the participation and the intent of the “other parties.”

The state asserts that the defendant’s claim is not reviewable because he failed to preserve his claim by taking exception to the court’s additional instructions. In the alternative, the state urges that if we review this claim, the charge, when considered in its entirety, properly guided the jury in reaching a verdict. The state also argues that there was evidence from which the jury could conclude that the defendant conspired with others.

Although we agree with the state that the defendant did not properly preserve his claim, we, nonetheless, will review it because “the defendant claims that the effect of the objectionable clause was to invite a jury verdict predicated upon speculation and conjecture thus resulting in a fundamental due process violation.” State v. Williams, 199 Conn. 30, 41, 505 A.2d 699 (1986); see State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). State v. Golding, supra, establishes that a defendant cannot prevail on an unpreserved constitutional claim unless all of four conditions are met, any one of which may be considered first. The defendant here can prevail on his unpreserved constitutional claim if a fundamental constitutional right clearly exists and he has been clearly deprived of a fair trial. Id., 240.

In its initial charge to the jury, the court set forth properly the elements of conspiracy and adequately explained how those elements would apply to a conspiracy between the defendant and the codefendant. Shortly thereafter, the court, in response to a jury question that sought a definition of conspiracy, reinstructed the jurors on the elements of conspiracy and again stated that the agreement, if any, was between the defendant and the codefendant.

Immediately after the court had given the supplemental instruction, the codefendant objected, and argued that the information charging the defendant did not specifically charge conspiracy with the codefendant but rather charged conspiracy “with one or more persons.” The defendant did not, however, object to the supplemental instruction. The court then farther instructed the jury, with the agreement of all of the parties, including the defendant. This further instruction was as follows: “Ladies and gentlemen of the jury, it’s come to my attention from counsel that in my charge on conspiracy I said that conspiracy—-Mr. Shaw is charged with four counts of conspiracy and I said the conspiracy was between Mr. Shaw and Miss Moore. The conspiracy, if you find it, can be between Mr. Shaw and other parties, if you find it. It’s not restricted solely to Miss Moore; okay?”

It is well established that the trial court should not submit to the jury any issue that is foreign to the facts in evidence or for which no evidence was offered. State v. Rodgers, 198 Conn. 53, 56, 502 A.2d 360 (1985); State v. Cofone, 164 Conn. 162, 168, 319 A.2d 381 (1972). In the present case, however, there was evidence of a conspiracy with persons other than the codefendant from which the jury could conclude “beyond a reasonable doubt that [the defendant] and another person agreed to engage in conduct constituting a crime.” State v. Grullon, 212 Conn. 195, 203, 562 A.2d 481 (1989). The jury could have found that persons other than the codefendant, “with culpable intent, agreed with the defendant to violate the law . . . .’’Id.

The defendant also asserts that the court’s instruction completely failed to recite the elements of conspiracy as applied to the participation of persons other than the codefendant. The defendant does not claim, nor could he, that the elements of conspiracy were not carefully explicated by the court, as applied to the codefendant.

The court stated that the jury must find, beyond a reasonable doubt, an agreement between the defendant and the codefendant to engage in conduct constituting a crime that was entered into with criminal intent to do an unlawful act either as a means or an end and that was followed by an overt act by either one of them to effect the object of their agreement. The jury could have rationally applied the elements of conspiracy, as defined correctly by the court, to others as well as to the codefendant. When the court refers to “other parties,” that phrase as used in the context of the entire charge can include only a finite number of persons. The words, contrary to the contention of the defendant, cannot logically refer to an infinite number of unnamed persons not involved in this trial.

The additional instruction must be viewed in the context of the entire charge, and we must determine whether the whole charge sufficiently guided the jury to a proper verdict. Id., 204; State v. Fleming, 198 Conn. 255, 268-69, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986). In cases involving a constitutional question, as this one does, the standard is whether “ ‘ “it is reasonably possible that the jury [was] misled.” ’ ” State v. Grullon, supra; State v. Wilson, 17 Conn. App. 104, 106, 550 A.2d 643, cert. denied, 210 Conn. 803, 553 A.2d 616 (1988). Viewing the charge as a whole, we conclude that it is not reasonably possible that the trial court misled the jury. In sum, the court’s charge to the jury fulfilled its mandate to “ ‘be accurate in law, adapted to the issues and adequate to guide the jury in reaching a correct verdict.’ ” State v. Williams, 182 Conn. 262, 269, 438 A.2d 80 (1980); Berniere v. Kripps, 157 Conn. 356, 358, 254 A.2d 496 (1969). Consequently, no fundamental due process right of the defendant was violated.

We conclude that the instruction regarding “other parties” did not deprive the defendant of a fundamental constitutional right, and that he was not denied a fair trial.

The defendant next argues that his multiple convictions of conspiracy and sentences arising out of the event that occurred on June 16, 1983, were duplicative and violated his federal constitutional double jeopardy protection. He contends that the trial court should have set aside two of these three allegedly duplicative counts of conspiracy pertaining to that day because multiple punishments were imposed for a single offense, namely, one conspiracy allegedly occurring on June 16,1983. The defendant was charged with three conspiracies on that date, involving three forged drivers’ licenses obtained for two different individuals. The state concedes that only one conspiracy existed concerning the two licenses obtained by Carswell on June 16,1983, but maintains that another separate conspiracy involving Carter also occurred. Thus, the state claims that the defendant was properly charged and convicted of two counts of conspiracy relating to that day because the jury could have reasonably found that the evidence supported a conspiracy between the defendant, the codefendant and Carswell, as well as a separate and distinct conspiracy between the defendant, the codefendant and Carter.

“Although the defendant did not raise this claim in the trial court; see Practice Book § 4185; we will address his claim because it implicates plain error by the trial court. See State v. Kitt, 8 Conn. App. 478, 489, 513 A.2d 731 (1986), cert. denied, 202 Conn. 801, 518 A.2d 648 (1987).” State v. Reyes, 19 Conn. App. 179, 185, 562 A.2d 27 (1989).

As the defendant correctly argues, the double jeopardy clause of the fifth amendment protects against multiple punishments for the same offense. State v. Boucino, 199 Conn. 207, 222, 506 A.2d 125 (1986). In the context of a single trial, a double jeopardy analysis is a twofold process. It must be determined whether the charges arose out of the same act or transaction and, if so, whether the charged crimes are the same offense. If both conditions are met, multiple punishments are forbidden. Id.

A review of the record reveals evidence supporting two separate conspiracies by the defendant and others on June 16,1983, to procure, for a profit, forged Connecticut drivers’ licenses. Each of the two agreements had its own separate and distinct illegal end and had different participating confederates. See Blumenthal v. United States, 332 U.S. 539, 558, 68 S. Ct. 248, 92 L. Ed. 154 (1947); State v. Kitt, supra, 490; cf. Braverman v. United States, 317 U.S. 49, 54, 63 S. Ct. 99, 87 L. Ed. 23 (1942); State v. Reyes, supra; State v. Stellato, 10 Conn. App. 447, 523 A.2d 1345 (1987).

Having determined that the evidence proved two agreements between the defendant and others on June 16,1983, two judgments of conviction and the two punishments imposed must be upheld, but one judgment of conviction must be reversed. The language of the information for the second, third and fourth counts is identical, however, and it is, therefore, impossible to distinguish among them.

The judgment is reversed as to the convictions on the second, third and fourth counts and the case is remanded with direction to render judgment of guilty on only two of those counts. The judgment is affirmed as to the conviction on the first count.

In this opinion the other judges concurred.

       This case does not present the same issue that was resolved in State v. Robinson, 213 Conn. 243, 567 A.2d 1173 (1989). The Robinson court held that the state is barred, as a matter of law, from bringing conspiracy charges against a person after the acquittal of another or other alleged conspirators. Id., 253. In this case, however, of all the conspirators, only the defendant was tried for conspiracy. Conspirators need not all be charged in order to sustain a conviction of one of them for conspiracy. Ng Pui Yu v. United States, 352 F.2d 626, 633 (9th Cir. 1965). Moreover, a conviction of a single defendant of a conspiracy charge will be upheld if the charge of conspiracy against at least one other conspirator was dismissed other than on the merits because such a dismissal does not determine the guilt or innocence of that other conspirator, or determine whether a conspiracy existed. See United States v. Sachs, 801 F.2d 839, 845 (6th Cir. 1986); United States v. Sangmeister, 685 F.2d 1124, 1126-27 (9th Cir. 1982); annot., 19 A.L.R.4th 192. Here, the fact that none of the possible conspirators was tried for conspiracy would not bar the conspiracy charges from being brought against the defendant or void his convictions of conspiracy.

       We consider only his federal claim because the defendant has not set forth a separate argument supporting his state due process claim. State v. Ortiz, 217 Conn. 648, 665 n.13, 588 A.2d 127 (1991).

       General Statutes § 53a-48 (a) provides that “[a] person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”


author: Lavery, J.

text:
    State of Connecticut v. Norman Theriault
    (9284)
    Norcott, Foti and Lavery, Js.
    Argued January 16
    decision released April 23, 1991

      Frank J. Halloran, assistant public defender, for the appellant (defendant).

      Harry Weller, assistant state’s attorney, with whom, on the brief, were Mary Galvin, state’s attorney, and Mark L. Hurley, assistant state’s attorney, for the appellee (state).
   Lavery, J.

The defendant appeals from a judgment of conviction of one count of burglary in the third degree in violation of General Statutes § 53a-103 (a), and one count of larceny in the first degree in violation of General Statutes § 53a-122 (a) (2), arising from an incident that took place on October 17, 1989, and of one count of burglary in the second degree in violation of General Statutes § 53a-102 (a), and one count of larceny in the sixth degree in violation of § 53a-125b (a), arising from an incident that occurred on October 18, 1989. The four charges were contained in two separate informations and were consolidated for trial to a jury. On appeal, the defendant raises two claims. First, he asserts that the trial court was incorrect in denying his motion to sever the two informations and in failing to instruct the jury that it was to deliberate on the evidence presented in each case separately. Second, the defendant challenges the trial court’s jury instructions on the burden of proof. We affirm the judgment of the trial court.

The jury could have reasonably found the following facts. On October 17, the victims, who resided in Milford, were out of town. A neighbor was watching their house and feeding the family cat. When the neighbor let the cat out on the morning of October 17, everything in the house was in order. On returning later that afternoon, the neighbor discovered that the house had been burglarized. The police were called and determined that the burglar had entered the house by prying open the rear door. After being summoned by their neighbor, the victims returned to their home, took an inventory of their property and determined that approximately $17,000 worth of items had been stolen. The stolen items included a forty-six inch television, a video cassette recorder, a twenty-five inch television, silverware, children’s video tapes, several jeweled rings, some costume jewelry, and numerous articles of clothing. Among the stolen items of clothing was a blue denim jacket.

The next day, October 18, at approximately 3 a.m., Milford Police Officer Robert Nash arrived at the same house to investigate a report of a burglary in progress. Nash determined that someone had gained access to the premises by breaking a window. The officer saw a light flicker on and off in the kitchen, and then observed the defendant attempting to slide a mattress out through the door to the deck. When Nash identified himself, the defendant ran from the scene. The defendant was arrested a short time later in the backyard of a nearby house. When arrested, the defendant was wearing a jacket later identified by one of the victims as the one stolen on October 17. Inside the pocket of the jacket was a slip of paper bearing the name, address and phone number of one of the victims.

I

Motion to Sever

The defendant moved to sever the two cases, asserting that a joint trial would likely result in substantial injustice and prejudice to him. After a hearing, the trial court denied the defendant’s motion to sever. The court ruled that the evidence in both cases would overlap and that two trials would result in unnecessary duplication.

General Statutes § 54-57 and Practice Book § 829 authorize a trial court to try a defendant jointly on two or more informations or indictments. The trial court’s decision to allow a joint trial will not be disturbed unless the record evinces a manifest abuse of discretion. The discretion of the court to order separate trials should be exercised only when the defendant’s rights will be substantially prejudiced by a joint trial. State v. Pollitt, 205 Conn. 61, 67-68, 530 A.2d 155 (1987); State v. Silver, 139 Conn. 234, 240, 93 A.2d 154 (1952). It is well settled that when a defendant challenges the court’s decision to join separate charges for trial, he must show that the court’s refusal to sever resulted in substantial injustice and that the resulting prejudice to the defendant was beyond the court’s curative jury instructions. State v. Herring, 210 Conn. 78, 94-95, 544 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989); State v. Boscarino, 204 Conn. 714, 721, 529 A.2d 1260 (1987); State v. King, 187 Conn. 292, 302, 445 A.2d 901 (1982). It is not enough to show that the joint trial was less than advantageous to the defendant.

The state’s case relating to the defendant’s activity on October 18 was the stronger of the two cases. The defendant claims that because the state’s case was stronger on the defendant’s complicity in the burglary and larceny crimes perpetrated on October 18 than its case concerning those perpetrated on October 17, joinder of the two cases permitted the jury to consider highly prejudicial evidence of his culpability for the crimes that occurred on October 18 while deliberating his involvement in the burglary and larceny of October 17.

In general, evidence of a defendant’s commission of one crime may not be used to prove the defendant’s guilt of another crime. State v. Boscarino, supra. In a joint trial, there is an omnipresent risk that although the quantum of evidence on any one of the charges may, when considered alone, be insufficient to persuade the jury of the defendant’s guilt, the sum of the evidence admitted on all charges will be sufficient for a conviction on all. Id., 721-22. “This risk is greatly enhanced when the offenses joined are factually similar, but legally unrelated.” Id.

When the trial court’s decision to consolidate cases is challenged, the defendant bears the burden of showing that the joinder of his cases resulted in substantial injustice and that any resulting prejudice could not be avoided by the court’s curative instructions to the jury. State v. King, supra. The factors that the reviewing court should weigh in determining whether the consolidation resulted in prejudice to the defendant include (1) whether the offenses are factually similar but legally unrelated, (2) whether the charges involve discrete, easily distinguishable, factual scenarios, (3) whether the crimes were of a violent nature or involved brutal or shocking conduct by the defendant, and (4) the duration and complexity of the trial. State v. Herring, supra, 95; State v. Boscarino, supra, 722-23. If we find that any of these factors caused prejudice to the defendant, we must then decide whether the trial court’s instructions cured any prejudice that might have resulted from their existence. State v. Horne, 215 Conn. 538, 547, 577 A.2d 694 (1990); State v. Herring, supra; State v. Boscarino, supra, 722-24.

In applying these standards to the case before us, we conclude that the trial court’s decision not to sever was correct. The offenses are factually similar and legally related. The fact that two burglaries and two larcenies were committed at the same house, within a twenty-four hour period, may be indicative that the perpetrator is the same for each. In order for the state to prove that the defendant was responsible for the offenses of October 17 it had to prove that the defendant was in the house on that date. This was established by the testimony of one of the victims that the jacket was stolen on October 17 and that the defendant was wearing it on October 18 when he was arrested. If there was a separate trial for the burglary and larceny of October 17, testimony that the defendant was wearing the jacket stolen on that day during the burglary on the next day would have been admissible.

In addition, the case was not complicated. The case was tried and a verdict was returned in two days. The jury heard testimony from only seven state’s witnesses. As was his right, the defendant offered no evidence in the case, putting the state to its burden of proof. The state’s first and second witnesses, a neighbor of the victims and a police officer, testified about the October 17 offense. Sergeant Henry Povinelli testified that he first met the defendant after he was arrested for the October 18 burglary wearing the jacket that was reported stolen on the previous day. One victim testified about her inventory of the premises after the October 17 burglary. She testified that she saw the defendant at 3 a.m. on October 18 wearing the jacket stolen the previous day. After the victim testified, two police officers testified about their response to the burglary of October 18 and the fact that the defendant was apprehended wearing the blue denim jacket reported as stolen on October 17. The evidence was presented in a clear, orderly manner and was readily distinguishable in its application to each offense. The evidence did not indicate brutal or shocking conduct by the defendant. In addition, the trial court, pursuant to a request from the defendant, gave a supplemental charge to the jury with respect to the two separate informations. The trial court instructed the jury that the defendant was being tried for “four separate crimes and that it could convict him on all of them, acquit him on all of them or acquit him on some while convicting him on others . . . .” This supplemental charge was given after the defendant took an exception to the initial charge. The defendant did not except to this supplemental charge and did not seek further explanation on the separation of charges. The record discloses no manifest abuse of discretion. The trial court’s decision to join the offenses was proper and caused no substantial injustice or prejudice to the defendant.

II

The Reasonable Doubt Charge

The defendant raises two objections to the trial court’s supplemental instructions on reasonable doubt. First, the defendant claims that the trial court incorrectly instructed the jury that “reasonable doubt is a doubt for which a valid reason can be assigned.” The defendant correctly states in his brief that our Supreme Court has rejected similar claims of error in State v. Findlay, 198 Conn. 328, 345-46, 502 A.2d 921, cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986), and in State v. Leecan, 198 Conn. 517, 538, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91L. Ed. 2d 550 (1986). The defendant attempts to distinguish this case from Findlay and Leecan by his assertion that this charge was given in a supplemental charge and not in the original charge. We find no merit to the defendant’s claim. Similar language was specifically approved in State v. Ryerson, 201 Conn. 333, 342-43 n.2, 514 A.2d 337 (1986), and in State v. Lamme, 19 Conn. App. 594, 607-608, 563 A.2d 1372 (1989), aff’d, 216 Conn. 172, 579 A.2d 484 (1990).

Second, the defendant claims that the court’s definition of reasonable doubt as “the kind of doubt that in the serious affairs that concern you in your everyday life, you would pay heed and attention to.” The defendant asserts that this definition is similar to a definition cited with disapproval in State v. Smith, 210 Conn. 132, 147-48, 554 A.2d 713 (1989).

In Smith, the court upheld the charge but cited with disapproval the following language. “One which you as reasonable and prudent men and women would be willing to act upon in the more weighty and important matters relating to your own affairs.” The Supreme Court in Smith and in State v. Johnson, 214 Conn. 161, 177-80, 571 A.2d 79 (1990), disapproved of the language “willing to act upon” and stated its preference for the language “causing one to hesitate.” The Supreme Court in both cases found that the difference in phraseology does not constitute reversible error in an otherwise adequate charge upon reasonable doubt. In this case, the language is similar to the language approved in State v. Lamme, supra, 607-608 n.6. Considering the charge on reasonable doubt as a whole, we find that it adequately defines the standard of proof in a criminal case.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 54-57 provides: “joinder of offenses of the same character. Whenever two or more cases are pending at the same time against the same party in the same court for offenses of the same character, counts for such offenses may be joined in one information unless the court orders otherwise.”

       Practice Book § 829 provides: “trial together of indictments or informations
      “The judicial authority may, upon his own motion or the motion of any party, order that two or more indictments or informations or both, whether against the same defendant or different defendants, be tried together.”