text:
    State of Connecticut v. Silas Harris
    (5414)
    Dupont, C. J., Hull and Daly, Js.

      Argued May 12
    decision released June 30, 1987

      Joette Katz, public defender, for the appellant (defendant).

      Roland D. Fasano, assistant state’s attorney, with whom, on the brief, was Arnold Markle, state’s attorney, for the appellee (state).
   Dupont, C. J.

The defendant was convicted by a jury of robbery in the first degree and conspiracy to commit robbery in the first degree, violations of General Statutes §§ 53a-48 and 53a-134 (a) (2) and possession of a sawed-off shotgun, a violation of General Statutes § 53a-211. The issues of this appeal are whether the court erred in its instructions on the crime of conspiracy to commit robbery in the first degree and whether the defendant was subjected to double jeopardy on the crime of possession of a sawed-off shotgun.

The defendant claims that the trial court failed, in its charge to the jury, to define adequately all of the elements of the crime of conspiracy to commit robbery in the first degree. The defendant claims that he could not be found guilty of a conspiracy to commit robbery in violation of General Statutes § 53a-134 (a) (2) unless he had a specific intent, not only to agree to commit a robbery but to agree that one of the conspirators be armed during the robbery. He argues that the court failed to instruct the jury that one of the elements of the crime of the conspiracy with which he was charged and which had to be proved by the state was his agreement that one of the conspirators be armed.

The relevant facts, as stated by the defendant in his brief, and agreed to by the state, are as follows. The victim worked for a grocery store. Two men entered the store, one of them carrying a shotgun or a rifle. He ordered the victim to give him money from the victim’s person and the cash register. The second man had a handgun which he pointed at the victim’s face. A witness who lived a short distance from the store saw a car parked in front of his house at the exact time of the robbery. The car had distinctive markings, and he specifically described it to the police shortly after the crime. The witness observed a driver inside the car and saw two men run from the grocery store, and jump into the car which had its motor running. The robbery was immediately reported and as a result of the witness’ description of the car, the police were able to follow the car. When a police officer first observed the car, there were three persons in it. Another officer saw two men exit the car before it was stopped by a third officer. At the time of the stop, only the driver, who was also subsequently arrested, remained in the car. The driver testified that the defendant was one of the two men who had entered the grocery store and that the defendant had carried a gym bag into the store, and returned to the car with it. This witness also testified that the defendant had said on the way to the store and prior to the crime that if anything happened, the defendant was “prepared to spray someone.” The contents of the car found in it after it was stopped included a gym bag containing a sawed-off shotgun. The shotgun was operable.

“Conspiracy is an anticipatorial offense distinguished by a corrupt agreement by two or more persons to commit a specific objective crime.” State v. Beccia, 199 Conn. 1, 3, 505 A.2d 683 (1986). It is a specific intent crime, requiring that conspirators intend to agree to commit a crime and intend to commit the particular offense which is the object of the conspiracy. Conspirators must intend “to commit the elements of the offense.” (Emphasis in original.) Id., 4. The state must, therefore, when a defendant is charged with conspiracy, prove beyond a- reasonable doubt that the defendant, as a conspirator, intended to commit the elements of the substantive offense which was the subject of the conspiracy. Id., 3-4. A conspiracy to commit a substantive offense and the substantive offense are two separate and distinct offenses. State v. Crump, 201 Conn. 489, 497, 518 A.2d 378 (1986). State v. Stevens, 178 Conn. 649, 655, 425 A.2d 104 (1979). The two offenses must be independently examined, and a jury must be given sufficient instructions for such an independent examination. State v. Williams, 182 Conn. 262, 266, 438 A.2d 80 (1980).

In this case, there were ample evidentiary facts for the court to charge on conspiracy to commit robbery in the first degree. The conspiracy with which the defendant was charged was a conspiracy to commit armed robbery which required that either he or another participant in the robbery was armed with a deadly weapon. Both the defendant and another participant in the crime were armed with guns during the commission of the crime. All three participants were in the car when the defendant, according to the driver, stated that he was “prepared to spray someone.” Although the defendant is correct in his claim that the state had to prove that the defendant conspired to commit robbery in the first degree, including a conspiracy to commit all of the elements of the substantive crime, as provided in § 53a-134 (a) (2), the state did so, and the court’s charge on conspiracy was sufficient for the jury’s guidance.

Here, the court gave separate instructions on robbery in the first degree and conspiracy to commit robbery in the first degree. It instructed the jury that the defendant, on the conspiracy count, was charged with intending to engage in conduct constituting armed robbery, and that the jury had to decide whether the defendant formed an agreement with one or more persons to commit robbery in the first degree. The court further stated that the state had to prove beyond a reasonable doubt that the defendant entered into an agreement with at least one other person to commit robbery-in the first degree, as that crime was previously explained by it, and that the defendant had to have intended that the acts necessary to commit robbery in the first degree, as alleged, be performed. The court carefully explained intent. We fail to find any deficiency in the court’s instructions and therefore, find no error as to them.

The second claim of the defendant is that the crime of possession of a sawed-off shotgun is a lesser included offense of the crime, as alleged in the state’s information, of robbery in the first degree. The defendant claims that because the state, in its long form information particularized § 53a-134 (a) (2) by stating that the deadly weapon with which the defendant was armed was a sawed-off shotgun, that § 53a-211 (a) is a lesser included offense of § 53a-134 (a) (2). As such, the defendant argues, his conviction of a violation of § 53a-211 was prohibited by the double jeopardy clause of the United States constitution. The double jeopardy prohibition applies to the states because of the fourteenth amendment to the United States constitution. State v. McCall, 187 Conn. 73, 89, 444 A.2d 896 (1982). Double jeopardy attaches where multiple punishments are imposed for the same offense in a single trial. Id. The question to be resolved is whether the two offenses charged are actually one. It must be determined, by an examination of the statutes, the information, and the bill of particulars, if any, and exclusive of the evidence introduced, whether proof of the violation of one statute requires proof of the violation of the other statute. If the elements of the greater offense include all of the elements of the lesser offense, then double jeopardy attaches. Id., 91; see also State v. Amaral, 179 Conn. 239, 425 A.2d 1293 (1979). “[T]he test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932).

In this case, the defendant could have committed the crime of robbery in the first degree, as alleged in the information, without having first committed the crime of owning, possessing or controlling a sawed-off shotgun. For a conviction under the latter crime, the state had to prove a particular barrel length and overall length which was not necessary for a conviction of the former crime. Also, the defendant could have been convicted under the former crime if another participant in the robbery had been armed with a dangerous weapon, whereas, under the latter, he could only be convicted if he, as opposed to a participant, controlled or possessed the shotgun. Furthermore, the state, in proving the elements of the crime of § 53a-134 (a) (2), need not have proven that the particular deadly weapon used in the commission of the crime was a sawed-off shotgun. The state need only have proved beyond a reasonable doubt that the defendant committed the offense in substantially the manner described in the information. The state was not limited to proving that the deadly weapon used in the commission of the crime was a sawed-off shotgun. See State v. Killenger, 193 Conn. 48, 52, 475 A.2d 276 (1984); State v. Carter, 189 Conn. 611, 630, 458 A.2d 369 (1983).

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-48 provides: “(a) 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.”

       The state charged the defendant with a violation of General Statutes § 53a-134 (a) (2) which provides “A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime: ... (2) is armed with a deadly weapon . . . .’’The state’s information specifically referred to a sawed-off shotgun as the deadly weapon used.
      The state’s information as to the violation of General Statutes § 53a-48 did not specifically refer to the use of a sawed-off shotgun but did state that the overt act in pursuance of the conspiracy was the robbery as alleged in the first count of the information, that is, the violation of General Statutes § 53a-134 (a) (2).

       Both the state and the defendant agree that intent that a participant be armed is not an element of the crime of robbery in the first degree, and that a defendant could be found guilty of General Statutes § 53a-134 (a) (2) even if the defendant had not been armed with a deadly weapon, and did not intend that a participant armed with a deadly weapon during the crime be so armed. We do not read State v. Crump, 201 Conn. 489, 518 A.2d 378 (1986), or State v. Failla, 1 Conn. App. 524, 473 A.2d 1233 (1984), as negating the requirement in conspiracy cases that the state prove all of the elements of the conspiracy, including the intent to agree to commit a particular substantive offense.

       General Statutes § 53-211 (a) provides: “A person is guilty of possession of a sawed-off shotgun or silencer when he owns, controls or possesses any sawed-off shotgun that has a barrel of less than eighteen inches or an overall length of less than twenty-six inches or when he owns, controls or possesses any silencer designed to muffle the noise of a firearm during discharge.”


source: Caselaw Access Project

author: Bieluch, J. Borden, J.,

license: Public Domain

text:
    Jerome H. Gross v. 1776 Associates et al.
    (4159)
    Borden, Daly and Bieluch, Js.
    Argued January 5
    decision released June 30, 1987

      James J. Tancredi, with whom, on the brief, were JohnB. Nolan andKirkD. Tavtigian, Jr., for the appellant (plaintiff).

      David P. Ball, with whom, on the brief, was Thomas A. Frizzell, for the appellees (defendants).
   Bieluch, J.

This action was brought by a limited partner against 1776 Associates (1776), a limited partnership, and Lake Avenue Associates, Inc. (Lake Avenue), a general and limited partner, seeking a dissolution of the limited partnership, a determination of its assets, an accounting to establish the amount due the plaintiff and damages. The defendants set forth special defenses in their answer and, by way of counterclaim, sought a mandatory injunction requiring the plaintiff to close on the sale of his interest to Lake Avenue, and a declaratory judgment that the plaintiffs limited partnership interest had terminated.

After a trial, the court found the issues for the defendants and concluded that the plaintiffs interest in the limited partnership had terminated on November 30,1979. As part of its judgment, the court ordered the plaintiff to execute the necessary documents to close the sale of his interest to the defendant general partner, Lake Avenue, upon Lake Avenue’s tender to him of the sum of $78,500. From that judgment, the plaintiff has appealed.

The plaintiff claims on appeal that the trial court erred in finding (1) that the proper purchase price for the plaintiff’s interest in the limited partnership was $78,500, (2) that the defendants’ failure to distribute the total annual positive cash flow from 1976 to 1979 was not a breach of the partnership agreement, and (3) that the failure to distribute the total annual cash flow did not constitute a breach of the general partner’s fiduciary duty. We find no error.

The facts admitted by the parties and found by the court are as follows: The plaintiff was a limited partner of 1776. The defendant Lake Avenue was a general, and later also a limited, partner of 1776. On May 10, 1974, Lake Avenue, David T. Chase and the plaintiff formed a limited partnership by written agreement under the firm name of “1776 Associates.” Initially, Lake Avenue was the sole general partner, while Chase and the plaintiff were limited partners. The purpose of the limited partnership was to construct, own, and operate or lease a motor hotel in Danbury. Under the provisions of § 4.04 of the partnership agreement, Nathan S. Ancell, president of Lake Avenue, was designated to act on behalf of the general partner on all matters relating to the partnership.

The respective interests of the partners in the partnership and in its profits, losses, distributions and assets were as follows: Lake Avenue - 50 percent; Chase - 25 percent; Gross - 25 percent. The following cash contributions were initially made by the partners: Lake Avenue - $550,000; Chase - $275,000; Gross - $275,000. Pursuant to § 7.01 of the partnership agreement, in 1975 the partners made the following additional capital contributions in cash: Lake Avenue - $200,000; Chase - $100,000; Gross - $100,000.

Under § 14.02 of the partnership agreement, a limited partner had the right to sell his entire interest in the partnership to the general partner, who was obligated to purchase such interest at a price determined as follows: “The purchase price for the interest of the Limited Partner shall be an amount equal to the higher of (1) the credit balance, if any, of the capital account of the Limited Partner as of the end of the calendar month next preceding the date on which notice of the Offer is given by the Limited Partner, or (2) the sum of One Dollar ($1.00).”

Pursuant to § 14.02, on February 11,1976, the plaintiff gave Lake Avenue written notice of his election to sell his interest in the partnership and requested that it “advise the Independent Accountant, as provided in § 14.03 (e) to prepare and deliver to us a certificate setting forth the amounts required to fix the purchase price.” In a follow-up letter to Nathan S. Ancell one week later, the election was modified as follows: “[I]t is as I indicated to you my minimum requirement to obtain a return of capital of $200,000. Once you or the independent accountant determines the purchase price as provided in the agreement, I will leave the excess above $200,000 in the deal. I am hopeful that this would give me something close to a five percent interest. I am taking the liberty of sending my check in the amount of $3500 which would equal five percent of the amount of the $70,000 call.”

Section 13.01 of the limited partnership agreement provided that “[t]he interest of a Limited Partner shall not be assignable in part.” On behalf of Lake Avenue, Ancell agreed to waive this limitation. The plaintiffs capital account for the determination of the purchase price under § 14.02 was determined by the independent accountant under § 14.03 (e) to be $232,030. By his letter to Ancell on March 9,1976, the plaintiff acknowledged: “[I]f the provisions of [§§ 1402 and 1403 (e)] were applied in their strictest terms, for me to retain a 5% investment as of January 31, 1976, I would receive a return of capital of $185,624 (80 percent of $232,030). ... I am hopeful that you [would allow] me to realize the additional $14,376 necessary to give me a return of capital of $200,000 and retain a 5% investment.” In response to this request, on behalf of Lake Avenue, Ancell on March 15, 1976, waived the price formula and agreed that Lake Avenue would pay $192,500 for 80 percent of the plaintiffs interest in the partnership.

After the plaintiff and defendant completed their negotiations, on March 22,1976, the named parties and Chase executed an “Assignment of Limited Partnership Interest and Amendment to Limited Partnership Agreement.” The plaintiff thereby assigned to Lake Avenue 80 percent of his 25 percent interest in the limited partnership, including “the profits, losses, distributions and assets of 1776 Associates” for the consideration of $192,500. The transfer of this interest was made effective as of January 31, 1976, by agreement of the general and limited partners. By virtue of this sale of 80 percent of the plaintiffs 25 percent share in the partnership, his interest was reduced to 5 percent. Lake Avenue became a substituted limited partner with 20 percent interest upon amendment and recordation of the certificate of limited partnership, in addition to continuing as a general partner. During the negotiations for this sale, the plaintiff made a further contribution to capital of $3500 on February 18,1976, thereby increasing his total investment in the limited partnership to $378,500. This contribution of $3500 was made in anticipation of the plaintiff’s retention of 5 percent interest in the limited partnership. Lake Avenue then contributed $14,000 in expectation of acquiring 20 percent interest as a substituted limited partner. The remaining general and limited partnership contributions were proportionately made for a total added investment of $70,000.

• Section 14.03 (e) of the limited partnership agreement provided that an independent accountant would determine the amounts required under § 14.02 for determination of the sale price for the plaintiff’s interest. It provided further that “[sjuch certificate shall be binding and conclusive on the General Partner and Limited Partner except that if either or both dispute any item or items included in or excluded from the determination of the purchase price, the item or items in dispute shall be referred by them jointly and promptly to a third person or firm for the final and conclusive determination of the item or items in dispute.” As there was no dispute between the parties at the time of the assignment, this reciprocal right of arbitration was not exercised by the parties.

Contemporaneously with the assignment and amendment of the limited partnership agreement, the general and limited partners executed and recorded on the Danbury Land Records an amendment of their certificate of limited partnership prepared by Lake Avenue’s counsel in conformity with the requirements of §§ 34-33 and 34-10 of the Uniform Limited Partnership Act, General Statutes (Revised to 1975) §§ 34-9 through 34-38. In this recorded document, they acknowledged that “[t]he Limited Partners have contributed the following amounts to the Partnership, namely: David T. Chase, $392,500; Jerome H. Gross, $186,000; and Lake Avenue Associates, Inc., $206,500.” The reported “contribution” of the plaintiff, now shown to have 5 percent interest in the limited partnership, reflected his contributions prior to 1976 of $375,000, plus the contribution of $3500 on February 18,1976, less consideration of $192,500 received for his assignment to Lake Avenue of 20 percent interest in the partnership. Lake Avenue was reported to be a limited partner with 20 percent interest and its “contribution” of $206,500 as a limited partner was computed by combining its purchase price of $192,500 and proportionate contribution of $14,000 in February, 1976.

On December 26,1979, Lake Avenue notified the plaintiff of the exercise of its option under § 14.01 of the limited partnership agreement to purchase the plaintiffs remaining interest of 5 percent for $78,500. The offered price was determined by an independent accountant under § 14.03 (e) of the agreement pursuant to the formula specified in § 14.01. This provision fixed the price as the greater of (1) the capital contribution of the limited partner or (2) the credit balance of his capital account as of the end of the calendar month next preceding the date of notice of exercise of option, in this case, November 30,1979. The accountant computed the plaintiffs capital contribution to be $78,500, which was greater than the capital account balance of $62,289. The accountant’s computation of the plaintiff’s capital contribution was made as follows:

Original capital contribution $275,000
Additional contribution 100.000
Total contribution as of January 31, 1976 $375,000
Less:
Assignment of 80 percent on January 31, 1976 300.000
Balance after January 31, 1976 $ 75,000
Additional contribution on February 18, 1976 3.500
Capital contributions as of November 30, 1979 $ 78,500

Lake Avenue’s offer was refused by the plaintiff. He maintained that his remaining capital contribution, as reported in the recorded amendment of the certificate of limited partnership on March 22, 1976, was $186,000. In addition, the plaintiff now claimed that this amount “should be increased by cash retained by the partnership as reserves or used for capital improvements.” When Lake Avenue refused the plaintiff’s demands, this action commenced.

In the three counts of his revised complaint, the plaintiff alleged that the defendants had violated various fiduciary duties and certain provisions of the limited partnership agreement, including their refusal to purchase the plaintiffs interest for $186,000, and their failure to distribute accumulated excessive and unreasonable cash reserves. By way of relief, the plaintiff sought a dissolution of the partnership, a determination of its assets, an accounting of cash flow and damages.

The defendants denied these allegations and pleaded by way of special defense that the limited partnership was terminated under its provisions as of December 1, 1979, and that the reserves were accumulated with the knowledge of all parties. Additionally, the defendants counterclaimed for a mandatory injunction requiring the plaintiff to complete the sale of his interest in accordance with the partnership agreement and for a declaratory judgment that the interest of the plaintiff had ceased and terminated.

The trial court found that $78,500 was the amount of the plaintiffs remaining capital contribution on November 30,1979, and the proper purchase price for his remaining 5 percent interest in the limited partnership. It concluded, therefore, that Lake Avenue’s notice and offer of purchase, and the accountant’s certification of capital contribution and capital account determining the purchase price, terminated the plaintiff’s interest in the limited partnership as of November 30, 1979.

As to the plaintiff’s further claims, the court found that in view of the broad powers granted by the partnership agreement to the general partner for the management of the partnership business, including the right to accumulate annual reserves, the plaintiff failed to prove by a preponderance of the evidence that he was entitled to any cash flow. Further, the court found that the plaintiff failed to prove by a preponderance of the evidence that the defendants breached any fiduciary duty or that he was entitled to a dissolution of the partnership or an accounting. In accordance with the defendants’ requests as set forth in their counterclaim the court declared that the plaintiff’s interest in the limited partnership terminated on November 30, 1979, and ordered him to execute the necessary documents for the sale of that interest to Lake Avenue upon tender of the sum of $78,500. The plaintiff’s motion for further articulation of the factual and legal bases of the findings that the plaintiff was not entitled to any cash flow payments by way of damages or to an accounting was denied.

The plaintiff’s first claim on appeal is that the trial court erred in holding that the proper purchase price for the plaintiffs interest was $78,500 where the agreement and the amended certificate of limited partnership provided that the purchase price was to be his capital contribution of $186,000. This claim is without merit. The trial court found that the plaintiffs sale of 80 percent of his interest in the limited partnership included 80 percent of his capital contribution of $375,000. His remaining capital contribution on January 31,1976, after the fractional assignment of his prior interest, was $75,000. This reflected his remaining 5 percent interest in the limited partnership. In February, 1976, his capital contribution was increased to $78,500.

As to the plaintiffs contribution of $186,000 reported on the recorded amendment of the certificate of limited partnership, the court found that there was no negotiation pertaining to that amount, or agreement that the sum represented the plaintiffs remaining capital contribution for repayment on a buyout by the general partner. The determination of the reported amount was unexplainable by the general partner, but the court found that it did in fact reflect the amount of the plaintiff s investment less the sum of $192,500 received for the sale of 80 percent of his interest. The court concluded, however, that “the $186,000 figure is meaningless in determining Mr. Gross’ remaining capital contribution after the January 31,1976 sale of 80% of his entire interest to the general partner.”

The basic thrust of the plaintiff’s argument before us is that the trial court failed as a matter of contract law to construe the term “capital contribution,” for establishment of the purchase price of a buyout under § 14.01 of the limited partnership agreement, according to its ordinary and plain meaning and pursuant to its definition in § 1.13 as “sums contributed to the capital of the Partnership.” In addition, the plaintiff claims that the ordinary meaning of “capital contribution in the amended certificate of limited partnership plainly, unambiguously and explicitly confirmed that the plaintiff’s capital contribution, after the first purchase of his fractional interest by Lake Avenue, was $186,000, the remaining amount of cash he had contributed to the limited partnership. Finally, the plaintiff argues that the trial court’s determination that the amount of $186,000 assigned to his capital contribution was “meaningless” ignores the provisions of the Uniform Limited Partnership Act of 1976, General Statutes §§ 34-9 through 34-38q, “and emasculates the express formula in the Agreement whereby the limited partner can recapture his investment when forced out by the general partner.”

The correctness of the amended certificate of limited partnership as to the amounts of capital contributions by the limited partners is not before us, although a literal reading of the information suggests inaccuracies. The plaintiff fallaciously interprets the consideration of $192,500 received for the January 31, 1976, sale of 80 percent of his interest in the limited partnership as a return of capital contribution by the partnership. Concededly it was not that, but the payment to him from funds of Lake Avenue for purchase of that share of his limited partnership. Lake Avenue’s payment to the plaintiff, in turn, was not a capital contribution to the limited partnership by it, but a payment to the plaintiff individually for the assignment of a fractional share of his limited partnership interest.

A limited partnership is a form of investment in an enterprise. Through his capital contribution, a limited partner becomes entitled to share in the profits and losses of the limited partnership. Its advantage is that his share of losses in the business or in payments to creditors will not exceed the amount of his capital contributions to the limited partnership. Subject to the limited partnership agreement, statutory provisions and the rights of creditors, a limited partner is entitled to the return of his capital contribution and he may assign or transfer his interest in the limited partnership. By virtue of General Statutes (Rev. to 1979) §§ 34-24 and 34-27, any substituted limited partner, such as Lake Avenue, or mere assignee is entitled to the return of the assignor’s capital contribution.

The capital contribution of a limited partner is a barometer measuring his interest in the limited partnership and the extent of his risk of loss. It is fixed to the extent that it remains constant, and it fluctuates with additions and withdrawals pursuant to the limited partnership agreement and the Uniform Limited Partnership Act. While the amount of capital contribution is a matter of simple arithmetic, addition and subtraction, the value of a limited partner’s capital contribution, similar to the valuation of capital stock invested in a corporation, changes with the vagaries of the business operation and of the market place. This valuation of the capital investment, or equity, is usually indicated, as here, on the partnership’s records as his capital account.

The plaintiff misconstrues the nature of the two transactions, the former and the pending, between the parties. He considers each transaction as a return of his capital contribution, in combination, repayment of his full investment. The original assignment was a transfer of 80 percent of his interest by private sale on payment of an amount equivalent to a proportionate share of his capital account or equity. The pending transfer of his 5 percent interest is also by private sale, but payment is to be in an amount equivalent to his remaining capital contribution. The facts of this transfer he admits, but not the amount. Neither transfer involved the limited partnership as a party, but only the partners thereof privately. Neither transfer involved, in whole or in part, a return of the plaintiffs capital contributions. These transfers referred to the plaintiff’s capital account and capital contributions only for purchase price determination under the terms of the limited partnership agreement, §§ 14.02 and 14.01, respectively. In neither case was the return of the plaintiff’s capital contribution by the limited partnership to be made. Therefore, his claim at this time for return of his capital contribution in full from Lake Avenue in combined payment for the complete transfer of his interest is without basis in fact or law.

The plaintiff contends further that the trial court’s finding that Lake Avenue was obligated to pay the plaintiff $78,500 to purchase his remaining partnership interest was clearly erroneous, citing Practice Book § 3060D (now § 4061). In support of this argument, the plaintiff refers to Lake Avenue’s purchase of Chase’s interest in the limited partnership for the amount of his total capital contribution of $392,500. This claim is without substance or bearing on the question before us.

The finding of the court establishing the purchase price of $78,500 to the plaintiff is fully supported by the evidence before the court. The purchase price of the buyout of Chase’s total partnership interest under § 14.01 of the limited partnership agreement was computed by the parties in the same manner and by the same method that the trial court utilized, and we find correct, here in determining the purchase price for the plaintiffs remaining interest in the limited partnership.

In summary, the assignment of 80 percent of the plaintiff’s 25 percent interest in the limited partnership included the assignment of his right to a proportionate amount of his capital contribution, namely, $300,000; see footnote 4, supra; thus leaving a capital contribution balance of $75,000, to which must be added the subsequent contribution of $3500, for a total of $78,500. The trial court correctly found that this amount was what the plaintiff was entitled to receive upon the exercise of Lake Avenue’s option to buy out the plaintiffs interest under § 14.01 of the limited partnership agreement.

Therefore, we conclude that Lake Avenue became a substituted limited partner as to 80 percent of the plaintiff’s interest in the limited partnership on January 31,1976, with the concomitant right to the return of such proportionate amount of the plaintiff’s capital contribution, or $300,000. The amount of the plaintiffs remaining capital contribution was $75,000, to which he added $3500 on February 18,1976. The present balance of the plaintiffs capital contribution in the amount of $78,500 is the price to which he is entitled on the pending transfer of his 5 percent interest in the limited partnership to Lake Avenue.

The plaintiff’s remaining two claims of error require brief comment. His second claim is that the trial court erred in finding that the defendant’s failure to distribute the total annual positive cash flow from 1976 through 1979 was not a breach of the partnership agreement. The court found that in view of the broad powers granted by the partnership agreement to the general partner for the management of the partnership business, including the right to accumulate annual reserves, the plaintiff has simply failed to prove by a preponderance of the evidence that his is entitled to any cash flow. His third claim is that the trial court erred in finding that such failure to distribute the positive cash flow constituted a breach of the general partner’s fiduciary duty. As to this claim, the court also found that the plaintiff failed to prove the breach of any fiduciary duty by a preponderance of the evidence. Both of these claims challenge the factual findings made by the trial court.

After the court rendered its judgment, the plaintiff filed a motion for further articulation and consideration of the factual and legal bases of its finding “that the plaintiff is not entitled to any cash flow payments by way of damages or an accounting.” In particular, the plaintiff requested “that the court consider: (1) whether it was appropriate for the general partner to accumulate reserves in excess of $150,000; and (2) whether the financial compilations . . . sufficiently demonstrate that the plaintiff is entitled to at least $67,773, plus interest as specified in Exhibit A to plaintiff’s posttrial memorandum, as damages for failure to make cash flow payments.” The court denied the motion for articulation. At argument on the motion, however, the court summarily responded to the two questions propounded by the plaintiff by stating “yes” and “no,” respectively.

Our review of these claims is controlled by the narrow “clearly erroneous” standard. See Practice Book § 4061; Cookson v. Cookson, 201 Conn. 229, 242-43, 514 A.2d 323 (1986); Buddenhagen v. Luque, 10 Conn. App. 41, 44-45, 521 A.2d 221 (1987).

On appeal, we cannot retry the case. It is our function only to review the proceedings of the trial court where an appeal is based on the sufficiency of the evidence to support a factual finding. See Cookson v. Cookson, supra; Buddenhagen v. Luque, supra. The trial court’s failure to expound upon its factual findings does not constitute error when the only effect of such further articulation would be to present a more detailed recital of surrounding events which do not undermine the basis for the trial court’s decision. Cookson v. Cookson, supra, 243; Trunik v. Trunik, 179 Conn. 287, 288-89, 426 A.2d 274 (1979).

As for the plaintiff’s second claim of error, from our review of the record we cannot say that the findings and conclusions of the trial court were legally or logically incorrect or unsupported by the facts, or that the evidence was insufficient for the court to rule as it did. The court’s finding that the plaintiff was not entitled to any cash flow as provided in the limited partnership agreement was supported by testimony that the partners had agreed not to distribute cash flow and to spend the funds on necessary improvements of the partnership’s motel. The court apparently found this evidence of waiver credible, and we cannot disturb that finding.

As to the plaintiff’s third claim of error, we likewise conclude that the trial court’s finding that Lake Avenue had not breached its fiduciary duty to the plaintiff is supported by the evidence in the record. The plaintiff’s waiver of his contractual right to the distribution of cash flow likewise relieved Lake Avenue of its fiduciary duty to distribute said funds.

As to these further claims of error, we hold that the trial court’s findings are not clearly erroneous.

There is no error.

In this opinion, Daly, J. concurred.

Borden, J.,

concurring. In this case, it was the trial court’s function to find the facts. It did. Those facts are not clearly erroneous. I therefore concur in the result reached by the majority.

       Although General Statutes (Rev. to 1975) § 34-10 required that this certificate of amendment be sworn to, that they failed to do. Instead, they merely acknowledged its execution to be their free act and deed. See State v. Grant, 176 Conn. 17, 23-24, 404 A.2d 873 (1978).

       On April 10,1980, Chase sold his 25 percent interest in the limited partnership to Lake Avenue under a similar offer of purchase for his total capital contribution of $392,500.

       The revised Uniform Limited Partnership Act of 1976 was enacted in 1979, effective October 1,1979. Public Acts 1979, No. 79-440. Section 60 (c) thereof, now General Statutes § 34-38 (c), provided that limited partnerships formed between October 1,1961, and October 1,1979, such as 1776, shall continue to be governed by the provisions of the original Uniform Limited Partnership Act, chapter 610 of the General Statutes, revised to 1979.

       “[General Statutes (Rev. to 1979)] Sec. 34-24. conditions for receipt by limited partner of his contributions. (1) A limited partner shall not receive from a general partner or out of partnership property any part of his contributions until (a) all liabilities of the partnership, except liabilities to general partners and to limited partners on account of their contributions, have been paid or there remains property of the partnership sufficient to pay them, (b) the consent of all members is had, unless the return of the contribution may be rightfully demanded under the provisions of subsection (2) of this section, and (c) the certificate is cancelled or so amended as to set forth the withdrawal or reduction. (2) Subject to the provisions of subsection (1) of this section a limited partner may rightfully demand the return of his contribution (a) on the dissolution of a partnership or (b) when the date specified in the certificate for its return has arrived or (c) after he has given six months’ notice in writing to all other members, if no time is specified in the certificate either for the return of the contribution or for the dissolution of the partnership. (3) In the absence of any statement in the certificate to the contrary or the consent of all members, a limited partner, irrespective of the nature of his contribution, has only the right to demand and receive cash in return for his contribution. (4) A limited partner may have the partnership dissolved and its affairs wound up when (a) he rightfully but unsuccessfully demands the return of his contribution or (b) the other liabilities of the partnership have not been paid, or the partnership property is insufficient for their payment as required by subdivision (a) of subsection (1) of this section and the limited partner would otherwise be entitled to the return of his contribution.”
      “[General Statutes (Rev. to 1979)] Sec. 34-27. assignment of limited partner’s interest, substitute limited partner. (1) A limited partner’s interest is assignable. (2) A substituted limited partner is a person admitted to all the rights of a limited partner who has died or has assigned his interest in a partnership. (3) An assignee, who does not become a substituted limited partner, has no right to require any information or account of the partnership transactions or to inspect the partnership books; he is only entitled to receive the share of the profits or other compensation by way of income, or the return of his contribution, to which his assignor would otherwise be entitled. (4) An assignee shall have the right to become a substituted limited partner if all the members, except the assignor, consent thereto or if the assignor, being thereunto empowered by the certificate, gives the assignee that right. (5) An assignee becomes a substituted limited partner when the certificate is appropriately amended in accordance with section 34-33. (6) The substituted limited partner has all the rights and powers, and is subject to all the restrictions and liabilities of his assignor, except those liabilities of which he was ignorant at the time he became a limited partner and which could not be ascertained from the certificate. (7) The substitution of the assignee as a limited partner does not release the assignor from liability to the partnership under sections 34-14 and 34-25.”

       See General Statutes (Rev. to 1979) §§ 34-9 through 34-38.


author: Daly, J.

text:
    Charles H. Weeman, Administrator (Estate of Gregory T. Weeman) v. Arthur W. Church Ernestine P. Baysa, Administratrix (Estate of Glenn M. Baysa) v. Arthur W. Church
    (4784)
    Dupont, C. J., Daly and Bieluch, Js.
    Argued March 31
    decision released July 7, 1987

      Edward E. Moukawsher, with whom, on the brief, was Joseph E. Moukawsher, for the appellants (plaintiff in each case).

      Ellen C. Brown, for the appellee (defendant in both cases).
   Daly, J.

The plaintiffs in these combined appeals are administrators of the estates of two men who died as a result of a one car accident. The defendant is the owner of a tavern at which the decedents had been drinking prior to the crash. Each plaintiff claims error in the trial court's order dissolving two prejudgment attachments of real property owned by the defendant. The plaintiffs claim the court erred in concluding that they had failed to establish probable cause to sustain the plaintiffs’ claims of reckless and wanton misconduct against the defendant. We find no error.

On behalf of the decedents, the plaintiffs instituted actions against the defendant, the owner and permit-tee of the Linebacker Cafe. The complaints were in two counts, the first based on a violation of the Dram Shop Act, and the second claiming that the defendant or his agents or employees were grossly negligent, wanton, and reckless in that he or they served alcoholic liquor to an obviously intoxicated individual, Gregory T. Weeman, the driver of the automobile, although they knew or should have known that he would be driving a motor vehicle after leaving the defendant’s premises. The plaintiffs allege that after leaving the Linebacker Cafe, the motor vehicle driven by Weeman skidded off the highway, crashed into two guardrails and a tree, killing both the driver, Weeman, and his passenger, the decedent Baysa. Each plaintiff moved for and was granted a $200,000 ex parte attachment to be placed against the defendant’s real estate. The defendant moved for a dissolution or a modification of the prejudgment attachments. The trial court considered only the second count, and, after a hearing, dissolved the attachments.

The trial court found that the decedents had been patrons in the defendant’s cafe on the evening of November 5,1984, and had been served alcoholic beverages. At the hearing on the motion to dissolve the prejudgment attachments, the plaintiffs’ only witness testified that on November 5, 1984, he went to the Linebacker Cafe after his customary Monday night pool tournament which usually ended between 9 and 10 p.m. The witness stated that upon arriving at the bar he drank one beer with the decedents and observed the decedent Weeman drink only one beer. After finishing the beer, the trio left the premises together. The decedents offered a ride home to the witness, who declined the ride since he lived only a short distance from the tavern. The witness did not testify as to either Weeman’s appearance or his level of intoxication upon leaving the bar or to the precise time they departed. Shortly after midnight, on the morning of November 6, 1984, Weeman lost control of the vehicle he was driving which resulted in the accident which caused the two fatalities. The scene of the accident was within five minutes driving time of the tavern. Although there were two or three old beer cans at the scene of the accident, the investigating police officer testified that it could not be determined if those cans came from the decedent’s vehicle or had previously been discarded at the site. Both decedents were highly intoxicated at the time of the accident. A medical report revealed that the blood alcohol level in Weeman’s blood was .26 percent.

The trial court stated that “this court is unable to make an inference that because of the high blood alcohol content of each of the deceased that they or each of them must have been obviously intoxicated sometime earlier when Weeman was served alcohol at the Linebacker Cafe nor can the Court make a finding that the time of leaving by the parties was later than testified to by the plaintiffs’witness . . . .” The trial court concluded that the plaintiffs had failed to sustain the burden of proof required to support the prejudgment attachment.

"The trial court’s role in addressing motions for prejudgment remedies is limited. ‘The language of our prejudgment remedy statutes; General Statutes § 52-278a et seq.; requires that the [trial] court determine "whether or not there is probable cause to sustain the validity of the plaintiff’s claim”; General Statutes § 52-278d (a); that is to say “probable cause that judgment will be rendered in the matter in favor of the plaintiff.” General Statutes § 52-278c (a) (2). . . . The plaintiff does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim. . . .’

"Our role in reviewing the decision of a trial court on a prejudgment remedy motion is similarly ‘very circumscribed. It is not to duplicate the trial court’s weighing process, but rather to determine whether its conclusion was reasonable. "In the absence of clear error, this court should not overrule the thoughtful decision of the trial court, which has had an opportunity to assess the legal issues which may be raised and to weigh the credibility of at least some of the witnesses.” ’ ‘We therefore do not decide whether the legal conclusions reached by the trial court were correct or erroneous. We review the legal conclusions of the trial court only to the limited extent of determining whether its conclusions were reasonable.’ ” (Citation omitted.) Dow & Condon, Inc. v. Anderson, 203 Conn. 475, 479-80, 525 A.2d 935 (1987).

With this limited standard in mind, we turn to the plaintiffs’ claim. We find that the conclusion of the court was reasonable and that the court did not commit clear error. The court concluded that the plaintiffs had not presented sufficient evidence to find probable cause to believe that the defendant or his agents had been grossly negligent, wanton or reckless, or that they knew that the decedent Weeman was intoxicated when served and would be operating a motor vehicle upon leaving the premises.

The plaintiffs presented no evidence as to what state of intoxication the decedents were in as they left the defendant’s bar. Further, the plaintiffs’ only -witness testified that Weeman consumed only one beer while in his presence at the Linebacker Cafe, and that his reason for declining the offer of a ride home was that he lived only a short distance from the tavern, making no mention of Weeman’s driving ability as a result of alcohol consumption. Finally, the plaintiffs’ witness did not testify as to what time he actually arrived at the bar or the actual time the trio left the bar, only that it was his custom to go to the Linebacker after playing in a pool tournament which usually concluded some time between 9 and 10 p.m. Thus, the trial court could reasonably have concluded that the witness arrived at the bar at approximately 9:30, remained for approximately one half-hour and then left. Thus, the court could have concluded that the trio left the tavern at approximately 10 p.m., leaving two hours between the departure from the Linebacker Cafe and the fatal crash. On the basis of these facts, it was reasonable for the court to conclude that the plaintiffs had not demonstrated that probable cause existed to sustain the prejudgment remedy.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 30-102 provides in pertinent part: “(a) If any person, by himself or his agent, sells any alcoholic liquor to an intoxicated person, and such purchaser, in consequence of such intoxication, thereafter injures the person or property of another, such seller shall pay just damages to the person injured, up to the amount of twenty thousand dollars, or to persons injured in consequence of such intoxication up to an aggregate amount of fifty thousand dollars, to be recovered in an action under this section . . . . ”

       In its memorandum of decision the trial court stated in pertinent part: “It appears as to the first count in each of the cases that there is sufficient insurance coverage to secure the potential loss as limited by that statute.
      “The prejudgment attachment that the defendants are seeking to dissolve is to secure recovery under the second count . . . .”


author: Bieluch, J.

text:
    State of Connecticut v. Maria Malines
    (4594)
    Borden, Spallone and Bieluch, Js.
    Argued February 6
    decision released July 7, 1987

      Richard Emanuel, with whom was John R. Gulash, Jr., for the appellant (defendant).

      RichardF. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney and Frank S. Maco, assistant state’s attorney, for the appellee (state).
   Bieluch, J.

The defendant appeals from the judgment of conviction rendered in accordance with the jury’s verdict of guilty to the crime of manslaughter in the second degree, a violation of General Statutes § 53a-56. She claims as erroneous the trial court’s instructions on circumstantial evidence. See State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 944, 107 S. Ct. 597, 93 L. Ed. 2d 1598 (1986). She also claims that the evidence presented at trial was insufficient to establish her guilt beyond a reasonable doubt. Finally, she claims that the trial court erred in instructing on the effect of the defendant’s failure to testify. We find error.

The jury could reasonably have found the following facts: The defendant resided in Bridgeport with her husband, Julio Malines, and her two daughters. On June 3, 1984, at approximately 7 p.m., the defendant was in the kitchen arguing with her daughter Rosita when Julio intervened on behalf of Rosita. The dispute then heightened in intensity, whereupon the defendant left the kitchen. Julio also left the kitchen and subsequently went out into the backyard.

While Julio was in the backyard, the defendant returned to the kitchen carrying a loaded gun and told Rosita to leave the house. Rosita immediately ran into the yard and hid behind a pool. The defendant followed her into the yard, waving the gun, while declaring that she had three other guns hidden and that, if the gun she was carrying was taken from her, she had three bullets for Julio and three bullets for Rosita. Rosita approached the defendant and asked her to give her the gun, but the defendant refused and told Rosita to return to the house. Rosita obeyed the defendant and called the police from a bedroom.

The defendant and Julio were still arguing in the backyard when Rosita leaned out of a window and yelled to Julio that she had called the police. The defendant responded by pointing the gun at Rosita, who quickly retreated from the window.

At this point, Nathan Santiago, a neighbor who had heard the disturbance, came over to the Malines’ property. Santiago had served for over seven years as a policeman with the Bridgeport housing authority and had training and experience in handling domestic disputes. He encountered the defendant in the kitchen and pleaded with her to give him the gun. She refused twice and stated, “I am not going to hurt anybody.” Julio, who was standing outside the back door, then told the defendant that if he came inside, “you are going to have to use the gun.” A few seconds later, Julio entered the kitchen.

Santiago suggested that he and Julio go outside. The defendant repeatedly requested that Julio stay away from her. Santiago repeated his request that they go outside and began to escort Julio out the door, when Julio jumped the defendant in an effort to get the gun which the defendant was holding behind her back. The gun then went off, fatally wounding Julio.

The defendant was initially charged with manslaughter in the first degree with a firearm, a violation of General Statutes § 53a-55a. By substitute information, she was later charged with manslaughter in the first degree, a violation of General Statutes § 53a-55 (a) (3). The defendant pleaded not guilty and elected a jury trial. After a trial, the jury returned a verdict of guilty to the lesser included offense of manslaughter in the second degree, a violation of General Statutes § 53a-56.

The defendant’s first claim is that the trial court erred in its instructions on circumstantial evidence. She claims that her constitutional rights were violated when it instructed the jurors that an inference could be drawn if it was “more probable than not that the fact to be inferred is true.” See, e.g., State v. Rodgers, 198 Conn. 53, 57-58, 502 A.2d 360 (1985).

We need not address the state’s argument that the defendant failed to make a specific exception to the language of the charge. As we have consistently held, a claim that the court’s instruction unconstitutionally diluted the state’s burden of proof, which is adequately supported by the record, is a proper issue for review under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). See State v. Smith, 201 Conn. 659, 672, 519 A.2d 26 (1986); State v. Smith, 10 Conn. App. 624, 641, 525 A.2d 116 (1987). Our review of the record adequately supports the defendant’s request for an Evans review.

The trial court’s instruction on circumstantial evidence was as follows: “The State does not have to prove every fact that comes into issue. It is only the essential elements of the crime which I will explain to you which must be proved beyond a reasonable doubt. Proof beyond a reasonable doubt does not mean that you must have direct evidence supporting a fact. You may apply the rule of circumstantial evidence.

“This rule involves the offering of evidence of facts from which you are asked to infer the existence of another fact or set of facts. Such an inference may be made provided two elements in the application of this rule are satisfied: That the fact from which you are asked to draw the inference has itself been proven beyond a reasonable doubt and, that the inference asked to be drawn is not only logical and reasonable but is strong enough that you can find that it is more probable than not that the fact to be inferred is true. It is your right to draw inferences if you conclude that the facts you find proven reasonably establish other facts by reason and logic and are not the result of speculation, surmise or guesswork.” (Emphasis added.) The defendant claims that this instruction impermissibly diluted the state’s constitutional burden to prove the defendant’s guilt beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970).

The numerous cases which have addressed this issue have consistently recognized the constitutional inadequacy of the “more probable than not” language in defining circumstantial evidence. See State v. Whelan, supra, 755-58; State v. Rodgers, supra, 57-59; State v. Reddick, 197 Conn. 115, 131-32, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986); State v. Dullivan, 10 Conn. App. 474, 477-78, 523 A.2d 1353 (1987); State v. Farrar, 7 Conn. App. 149, 153-57, 508 A.2d 49, cert. denied, 200 Conn. 805, 512 A.2d 229 (1986). Where the principal issue in dispute was intent, an element of the crime established by circumstantial evidence, the trial court’s instruction on circumstantial evidence is subject to close scrutiny to determine whether it was constitutionally proper. See State v. Whelan, supra, 755; State v. Smith, 10 Conn. App. 624, 641 n.8, 525 A.2d 116 (1987). An instruction on circumstantial evidence is viewed otherwise where the principal issue in dispute is an element not established by circumstantial evidence. Then, the trial court’s charge is read as a whole to determine whether it was reasonably possible that the jury was misled by the instruction on circumstantial evidence. See State v. Reddick, supra, 133.

The state argues that where the defendant’s conduct is merely reckless, the court’s instruction on circumstantial evidence is not subject to close scrutiny, but the charge must be read as a whole. We disagree with this argument. Recklessness is a criminally culpable mental or conscious state, defined in General Statutes § 53a-3 (13) as an awareness and conscious disregard of a substantial and unjustifiable risk that a result will occur or that a circumstance exists. It is, of necessity, proven by circumstantial evidence to the same extent as intent, defined in General Statutes § 53a-3 (11) as a conscious objective to cause a result or to engage in conduct proscribed by statute.

The principal disputed issue in this case was the defendant’s state of mind. The trial court’s charge, therefore, is subject to our close scrutiny. See State v. Whelan, supra, 757; State v. Sullivan, 11 Conn. App. 80, 95, 525 A.2d 1353 (1987). The specific instruction in issue informed the jurors that an inferred fact could be drawn from a proven fact if they found that such proven fact made it more probable than not that the fact to be inferred from the evidence was true. Such an instruction is erroneous and impermissibly dilutes the state’s burden of proof at trial. See State v. Rodgers, supra, 57-58. It is reasonably possible that the jury could have been misled by the erroneous instruction and based its finding that the defendant acted recklessly upon the improper more probable than not standard. See State v. Whelan, supra. It is necessary, therefore, to remand the case for a new trial.

The defendant’s second claim is that the evidence produced at trial was insufficient to support the judgment of conviction. Although a new trial is ordered because of the erroneous instruction, we must now review this second claim to determine whether the defendant would be entitled to an acquittal rather than a new trial. See State v. Fernandez, 198 Conn. 1, 21, 501 A.2d 1195 (1985).

The defendant claims that there was insufficient evidence for the jury to find beyond a reasonable doubt that she caused her husband’s death. She claims that since no witness was able to testify who fired the gun, the jury was required to guess who proximately caused the death of Julio Malines. She further argues that the facts presented establish only the possibility that the defendant fired the gun, and do not preclude the theory that the decedent’s precipitous action in “jumping” the defendant constituted an efficient intervening cause which broke the causal connection between the defendant’s reckless conduct and her husband’s death.

Our standard of review on such an issue is well established and limited. The inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence established guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). The court there said: “Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Johnson v. Louisiana, 406 U.S. [356, 362, 92 S. Ct. 1620, 32 L. Ed. 2d 152 (1972)]. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. The criterion thus impinges upon ‘jury’ discretion only to the extent necessary to guarantee the fundamental protection of due process of law.” (Emphasis in original; footnotes omitted.) Jackson v. Virginia, supra, 319; see State v. Scielzo, 190 Conn. 191, 197-98, 460 A.2d 951 (1983); State v. Stellato, 10 Conn. App. 447, 452, 523 A.2d 1345 (1987).

The defendant’s primary claim is that the allegedly reckless conduct of the decedent in an effort to retrieve the gun in effect broke a link in the chain of legal causation so as to absolve the defendant from criminal responsibility for his death. In order to evaluate the sufficiency of the evidence on this issue, we must refer to the legal standards for establishing proximate cause in a criminal prosecution for manslaughter.

In determining whether the reckless actions of the defendant caused the decedent’s death, the jury must find that her actions contributed to his death. State v. Spates, 176 Conn. 227, 234, 405 A.2d 656 (1978), cert. denied, 440 U.S. 922, 99 S. Ct. 1248, 59 L. Ed. 2d 485 (1979). If the defendant’s unlawful conduct can be said to have contributed to the decedent’s death, responsibility is not avoided by the intervention of independent causes which have likewise contributed to the death. See United States v. Guillette, 547 F.2d 743, 749 (2d Cir. 1976), cert. denied, 434 U.S. 839, 98 S. Ct. 132, 54 L. Ed. 2d 102 (1977); 40 C.J.S., Homicide § 11.

“Factually any response of a human being to harm or threat of harm is a consequence of whatever produced such harm or threat, and insofar as the response is a normal one this actual causation is recognized by law. Hence an act resulting in harm or threat of harm is the proximate cause of further harm caused by such response thereto. On the other hand if a human being responds to such a situation in a manner that is clearly abnormal this is treated by law as the equivalent of an independent intervening force and may be, in fact usually is, superseding.” R. Perkins, Criminal Law, p. 622.

The jury could reasonably have found the following facts relevant to the defendant’s claim: The defendant was the person who initially held the loaded gun in her hands and threatened her family members. She refused several requests to put the gun down. She also stated that she had three other guns hidden and indicated by her words and actions that she was going to shoot her daughter and her husband. She had the gun in her hand when it was fired as she struggled with her husband when he attempted to take it from her, and killed him.

On the basis of this evidence, we cannot find as a matter of law that the facts presented require a finding that the decedent’s conduct constituted a sufficient intervening cause of his own demise so as to break the chain of causation.

Because a new trial is required, we need not address the defendant’s third claim that the trial court’s instruction on the defendant’s failure to testify was improper. The statutory and constitutional requirements for such an instruction are fully set forth in State v. Thurman, 10 Conn. App. 302, 308-313, 523 A.2d 891 (1987). See General Statutes § 54-84 (b).

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

In this opinion the other judges concurred.

       “[General Statutes] Sec. 53a-56. manslaughter in the second degree: class C felony, (a) A person is guilty of manslaughter in the second degree when: (1) He recklessly causes the death of another person; or (2) he intentionally causes or aids another person, other than by force, duress or deception, to commit suicide.”
      We note that the judgment file erroneously identified manslaughter in the second degree as a violation of General Statutes § 53a-55 (a) (3) (manslaughter in the first degree).

       “[General Statutes] Sec. 53a-55. manslaughter in the first degree: class B felony, (a) A person is guilty of manslaughter in the first degree when: ... (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.”


author: Dupont, C. J.

text:
    Rose W. Mozzer v. Hubert S. Bush, Jr., et al.
    (4570)
    Dupont, C. J., Spallone and Bieluch, Js.
    Argued April 2
    decision released July 7, 1987

      Kathryn Calibey, with whom was John J. Houlihan, Jr., for the appellant (plaintiff).

      Bourke Spellacy, with whom, on the brief, were John C. FitzGerald and Amy S. McCabe, for the appellee (named defendant).

      JohnF. Scully, with whom, on the brief, were Karen Jansen Casey and Louis B. Blumenfeld, for the appellee (defendant Edward J. Platz).
   Dupont, C. J.

In this medical malpractice action, tried to a jury, the plaintiff appeals from the judgment rendered upon the verdicts returned in favor of the defendants. The plaintiff claims that the trial court erred in striking, sua sponte, the expert medical witness testimony offered by the plaintiff and in refusing to set aside directed verdicts returned in the defendants’ favor.

The plaintiff was hospitalized for a gall bladder operation. The surgery was performed by the defendant, Dr. Hubert S. Bush, Jr., and anesthesia during the operation was administered by the defendant, Dr. Edward J. Platz. In her complaint, the plaintiff alleged that both doctors were negligent because they had failed to position properly and monitor her right arm during the operative procedure, and that such failure caused her to sustain a right ulnar neuropathy.

The plaintiff testified that she experienced a “needles and pins” sensation in her right hand and arm following her operation, and that she experienced pain in this area several days later. She testified, however, that she had no knowledge of what had transpired in the operating room, and did not remember being positioned on the operating table.

The plaintiff called two expert witnesses to testify on her behalf. A neurosurgeon who had treated the plaintiff after her surgery testified that he had diagnosed the plaintiff’s ulnar nerve injury after performing an electromyelogram. The expert witness also testified on the issue of causation over the objections of the defendants. He testified that, in his opinion, the plaintiff’s injury was “related in some way to her surgical procedure.”

An anesthesiologist testified to the standard of care regarding the positioning of a patient’s arms during gall bladder surgery. The anesthesiologist further testified, in response to a hypothetical question posed by plaintiffs counsel and over the objections of the defendants, that, in his opinion, the plaintiff’s injury occurred during the operation.

After the plaintiff rested her case, the defendants moved for directed verdicts. The trial court thereafter struck the testimony of both medical expert witnesses and granted the defendants’ motions. The trial court found that the testimony of such expert witnesses was “purely speculative . . . and [that] such testimony could not be used reasonably to support a verdict for the plaintiff, even if the court did not strike the expert testimony.” The trial court denied the plaintiffs motion to set aside the verdicts.

In her first claim of error, the plaintiff alleges that the trial court erred in striking the testimony of her expert witnesses. Although she concedes in her brief that a trial court may, sua sponte, strike testimony previously admitted when it determines that such evidence had been erroneously admitted; Drazen v. New Haven Taxicab Co., 95 Conn. 500, 502-503, 111 A. 861 (1920); she claims on appeal that the trial court erred in striking such testimony after she had rested her case. The plaintiff, therefore, objects only to the timing of the trial court’s action in striking the testimony.

The plaintiff, failed, however, to raise this specific claim in the trial court, either at the time the trial court struck such testimony, or in her motion to set aside the verdict. See Practice Book § 4185. In order to obtain a full appellate review of claims of error in civil jury cases, the plaintiff must raise those claims with the trial court in its motion to set aside the verdict “to provide the trial court with an opportunity to pass on claims of error which may become the subject of an appeal.” Kolich v. Shugrue, 198 Conn. 322, 325, 502 A.2d 918 (1986); see also Pietrorazio v. Santopietro, 185 Conn. 510, 513-16, 441 A.2d 163 (1981). The record reflects that in the hearing on her motion to set aside the verdict, and in her memorandum in support of such motion, the plaintiff claimed that the trial court erred in striking such expert testimony because the “witnesses were properly qualified in the course of the trial as expert witnesses” and because any “objections to that testimony [would] go to the weight of that testimony rather than to its admissibility.” No reference was made to the timing of the trial court’s sua sponte striking of the testimony of the plaintiff’s witnesses.

The trial court, therefore, was not alerted to the specific claim of error now raised by the plaintiff on appeal. The failure of the plaintiff to mention this claimed error at the time of the postjudgment motion “causes our review to be limited to that of plain error.” Shenefield v. Greenwich Hospital Assn., 10 Conn. App. 239, 242-43 n.3, 522 A.2d 829 (1987). Such review “is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1986). An examination of the record in the present case fails to disclose any such plain error. It is unnecessary, therefore, to review the plaintiff’s remaining claim of error.

There is no error.

In this opinion the other judges concurred.

       The plaintiff sued Manchester Memorial Hospital and two doctors. The defendants involved in this appeal are the doctors. The plaintiff withdrew her claim against the hospital prior to the granting by the trial court of the motions for a directed verdict in favor of both doctors.

       The record reflects, and the plaintiff concedes, that in reaching its decision to strike the testimony of the expert witnesses, the trial court determined that such testimony was erroneously admitted. At the hearing on the plaintiffs motion to set aside the verdict, the trial court stated: “I obviously, in the course of trying the case, I gave counsel a great deal of latitude on the testimony I wanted in because I didn’t want to have a problem of not letting it, so to speak, all be presented what you had. And then obviously on my own prerogative thereafter, stretching the rules a little bit, I thought, allowing some of this testimony, then I struck the testimony because I really felt that even with that there it was ofno help and it shouldn’t have originally come in. But I wanted to see just what was going to be said.” (Emphasis added.)

       The plaintiff argues on appeal that the trial court’s sua sponte striking of the testimony of the expert witnesses after she had rested her case was “inappropriate and inequitable” because it deprived her of an opportunity to remedy the situation by producing additional expert testimony or asking for a continuance. She further claims that she had relied upon the trial court’s previous rulings overruling the defendants’ objections to the introduction of such testimony, and that the dilatory action of the trial court “unfairly denied the plaintiff her constitutional right to have disputed issues heard by a jury.”
      The plaintiff asserts that because counsel must make timely as well as specific motions to strike, the trial court should be held to the same standard when acting sua sponte. She relies upon the holding in Cafarella v. Char, 1 Hawaii App. 142, 615 P.2d 763 (1980), as support for her claim. In Cafarella, the Hawaii Appellate Court determined that the trial court erred in striking, sua sponte, expert testimony three days after the granting of a directed verdict in the defendant’s favor. That case, however, is inapposite to the present case. The court in that case merely held that according to Hawaii precedent, the proper procedure to be used was a motion to strike; id., 145, citing Territory v. Lee Chee, 31 Hawaii 587 (1930); and that it was error for the trial court to disqualify an expert witness after both sides had rested and a motion for directed verdict had been granted. Such circumstances are not presented in this case.

       Even if the expert testimony were not stricken, however, a directed verdict would have been warranted in this case. In order to prevail in an action for medical malpractice, the plaintiff must prove (1) the requisite standard of care for treatment, (2) a deviation from that standard of care, and (3) a causal connection between the deviation and the claimed injury. Pisel v. Stamford Hospital, 180 Conn. 314, 334, 430 A.2d 1 (1980). The plaintiff presented no evidence as to what occurred during the surgical procedure and completely failed to identify any specific act of negligence on the part of any person. It would have been impossible, therefore, for the jury to find that the defendants had deviated from the requisite standard of care based upon the evidence presented by the plaintiff.
      Furthermore, the jury could not have found that there was a causal connection between the alleged deviation and the claimed injury of the plaintiff. The fact that the plaintiffs operation was followed by an injury is not sufficient to establish negligence. See Krause v. Bridgeport Hospital, 169 Conn. 1, 7, 362 A.2d 802 (1975). The plaintiff is not entitled to rely upon the doctrine of res ipsa loquitur. Id., 8.


author: Spallone, J.

text:
    Ernest C. DeLucia v. J. William Burns, Commissioner of Transportation
    (4990)
    Dupont, C. J., Borden and Spallone, Js.
    Argued April 8
    decision released July 7, 1987

      Benson A. Snaider, for the appellant (plaintiff).

      Michael J. Lombardo, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellee (defendant).
   Spallone, J.

This is an appeal from the granting of the defendant’s motion for summary judgment in a condemnation action. The dispositive issue is whether, after a landowner has breached a voluntary agreement to convey land to the highway commissioner for a highway project, the commissioner, in a subsequent condemnation action to acquire the land, may limit the damages to the amount agreed to by the parties in the sales contract. We find that, under these circumstances, the landowner is entitled to receive as just compensation for the taking no more than he originally agreed to in the sales contract. Accordingly, we find no error.

The defendant commissioner of transportation and the plaintiff landowner entered into a written agreement entitled “land payment voucher” wherein the plaintiff agreed to convey to the defendant approximately 6.2 acres of land needed for the construction of a highway. The parties agreed that the commissioner would pay the plaintiff $102,000 for the property. Pursuant to General Statutes § 13a-73 (c), Hon. Philip R. Pastore, state trial referee, approved the sale, as did the state properties review board pursuant to General Statutes § 13a-73 (h).

On January 18,1984, the scheduled date for the closing, the plaintiff refused to convey the property, claiming that he considered the agreed-upon purchase price of $102,000 to be inadequate. The defendant needed possession of the property to prevent delays in the highway construction project. The defendant, therefore, condemned the property under the provisions of General Statutes § 13a-73 (b) and filed a notice of condemnation and assessment of damages in the amount of $102,000. That amount was deposited with the clerk of the Superior Court and the plaintiff withdrew it in accordance with General Statutes § 48-11. The plaintiff thereafter filed an appeal under General Statutes § 13a-76 claiming that he was aggrieved because the damages assessed by the defendant were inadequate.

On February 3,1986, after the pleadings were closed, the defendant filed a motion for summary judgment supported by extensive documentation, including a comprehensive affidavit. The plaintiff filed a brief in opposition to the defendant’s motion for summary judgment, but did not file a counteraffidavit or any other documentation before the date of the hearing on the motion for summary judgment. On the day of the summary judgment hearing, the plaintiff attempted to file an affidavit in opposition to the motion. The court, however, refused to consider this affidavit, finding that it was submitted for the purpose of delay, was made in bad faith, was not based on the plaintiffs personal knowledge and was contrary to the sworn statements made by the plaintiff at a deposition. State trial referee, Hon. Harold J. Mulvey, in his capacity as the trial court, filed a detailed memorandum of decision granting the defendant’s motion for summary judgment. From this decision the plaintiff has appealed.

Initially, we must determine whether the court was correct in holding that the vehicle of summary judgment was available to the defendant in a condemnation action under General Statutes § 13a-76. Summary judgments may be utilized in those administrative appeals that are enumerated in Practice Book § 257 (d). Included in the administrative appeals listed in this section is “any other appeal in which the parties are entitled to a trial de novo.” Practice Book § 257 (d) (5). We agree with the trial court that an appeal under General Statutes § 13a-76 is a trial de novo, thereby allowing the court to consider the defendant’s motion for summary judgment.

We next address the plaintiff’s claims contesting the validity of the sales contract. The trial court found that after the contract was executed by both parties, and approved by a state trial referee and the state properties review board, the plaintiff’s interest was, by virtue of the doctrine of equitable conversion, an interest in the proceeds of the sale rather than an interest in the realty. Implicit in this conclusion is the finding that the land payment voucher was a valid purchase and sales agreement between the parties.

The plaintiff claims that summary judgment was inappropriate on this issue because his counter-affidavit, filed on the day of the summary judgment hearing, raised a factual question regarding the plaintiff’s intent to enter into a binding contract. The trial referee, however, refused to consider the plaintiffs affidavit. While the plaintiff claims for the first time in his reply brief that the court erred in refusing his affidavit, we will not review this claim because the appellee was not given a proper opportunity to respond to this argument in its brief. See Practice Book § 4013 (a); R.A. Civitello Co. v. New Haven, 6 Conn. App. 212, 217 n.5, 504 A.2d 542 (1986).

The plaintiff also claims that the land purchase voucher failed to comply with the statute of frauds because it did not describe the property with sufficient certainty or provide a time for performance. Because this claim was not raised below, we will not review it here. Practice Book § 4185; Knight v. Bourbeau, 194 Conn. 702, 704, 485 A.2d 919 (1984). We note that the land purchase voucher does not contain any deficiencies on its face that would raise any issue of material fact as to its validity under the statute of frauds.

We must now determine whether the trial court correctly concluded that the purchase price agreed to by the parties in the sales contract was just damages for the plaintiff in the condemnation proceeding. “Under article first, § 11, of the Connecticut constitution, no property shall be taken for a public use without just compensation. This means a fair equivalent in money for the property taken from the condemnee as nearly as its nature will permit. Ordinarily, although not necessarily, this is the market value of the property taken. But the question of what is just compensation is an equitable one rather than a strictly legal or technical one. The paramount law intends that the condemnee shall be put in as good condition pecuniarily by just compensation as he would have been in had the property not been taken.” (Citations omitted.) Colaluca v. Ives, 150 Conn. 521, 530, 191 A.2d 340 (1963).

An issue similar to the present issue was addressed by our Supreme Court in Colaluca v. Ives, supra. There, the plaintiff had purchased land from the city of Hartford for $35,000 at a public auction. The deed conveying the land contained an option covenant allowing the city or the state of Connecticut to repurchase the parcel for $35,000 within twenty years from the time of sale if the city or state should require the land for a public purpose. Five years later, the state highway commissioner decided to acquire the land for use in a highway project. He instituted condemnation proceedings, which he was later allowed to abandon after bringing a separate suit for specific performance of the option. Judgment was rendered for the commissioner in both actions. On appeal, the plaintiff claimed, inter alia, that the trial court erred in allowing the commissioner to abandon the condemnation proceedings. She further claimed, as does the plaintiff in this case, that once the commissioner had initiated the condemnation proceedings, she was entitled to the full extent of damages allowable in a condemnation procedure.

The Supreme Court addressed this latter claim by determining the amount of damages to which the plaintiff would have been entitled had the commissioner proceeded in a condemnation action rather than in an action for specific performance. The court, in determining the effect of the option contract in the condemnation proceeding, stated: “Had the property not been ‘taken’ under the condemnation procedure, the plaintiff would have been under an obligation, for the reasons already stated, to convey the property to the commissioner, on sixty days’ notice, for $35,000 in accordance with the option covenant. Consequently, even if the property was ‘taken’ by the commissioner, her damages would be, and could be, only $35,000, since that was the full value of her interest in the property at the time of the claimed taking. See Stevens v. Norfolk, 46 Conn. 227, 230 [1878]; McGowan v. Milford, 104 Conn. 452, 456, 133 A. 570 [1926].” Id., 530-31.

We find this reasoning to be persuasive under the facts in this case. Like the plaintiff in Colaluca v. Ives, supra, the plaintiff here was bound by a contractual agreement to convey a parcel to the highway commissioner for a fixed sum. Because of this agreement, his damages were limited to the amount of the contract “since that was the full value of [his] interest in the property at the time of the claimed taking. . . . Any greater sum would be, not just compensation, but an unwarranted gift of public funds to a private individual.” Id., 531.

The plaintiff claims that when the commissioner chose to condemn the land pursuant to General Statutes § 13a-73 (b) rather than institute a suit for specific performance to enforce the sales contract, he made an election of remedies that precluded him from asserting any rights he may have had in the property under the sales contract. We note that this claim is inconsistent with the reasoning of the Supreme Court in Colaluca v. Ives, supra. There, the Supreme Court ruled that in a condemnation proceeding, the plaintiff’s interest in land under contract to the state was limited to the price of the contract. Implicit in this reasoning is the conclusion that the state does not waive or abandon its contractual rights in a parcel merely by instituting a condemnation action for that parcel.

Even if we were to find that the doctrine of election of remedies had some colorable relevance to this issue, we would not apply it under the specific facts and circumstances of this case. The doctrine of election of remedies is equitable in nature, and its purpose is not to prevent recourse to any remedy, but to prevent double redress for a single wrong. 25 Am. Jur. 2d, Election of Remedies § 1; see also National Transportation Co. v. Toquet, 123 Conn. 468, 479, 196 A. 344 (1937). Here, where the commissioner instituted the condemnation action only because of the plaintiffs breach of contract, it would be inequitable to apply the doctrine of election of remedies to benefit the breaching party.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 13a-73 (c) provides in pertinent part: “The commissioner may purchase any land and take a deed thereof in the name of the state when such land is needed in connection with the layout, construction, repair, reconstruction or maintenance of any state highway or bridge, and any land or buildings or both, necessary, in his opinion, for the efficient accomplishment of the foregoing purpose, provided any purchase of such land or land and buildings in an amount in excess of the sum of fifteen thousand dollars shall be approved by a state referee.”

       General Statutes § 13a-73 (h) provides in pertinent part: “All sales or exchanges of surplus property by the department of transportation and matters dealing with the initial acquisition of any existing mass transit system or the purchase or sale of properties acquired in connection with any state highway system or mass transit system shall be subject to review and approval of the state properties review board . . . .”

       General Statutes § 13a-73 (b) provides in pertinent part: “The commissioner may take any land he finds necessary for the layout, alteration, extension, widening, change of grade or improvement of any state highway or for a highway maintenance storage area or garage and the owner of such land shall be paid by the state for all damages and the state shall receive from such owner the amount or value of all benefits resulting from such taking, layout, alteration, extension, widening, change of grade or other improvement. . . . The assessment of such damages and of such benefits shall be made by the commissioner and filed by him with the clerk of the superior court in the judicial district in which the land affected is located, and such clerk shall give notice of such assessment to each person having an interest of record therein by mailing to each a copy of the same, postage prepaid, and, at any time after such assessment has been made by said commissioner, the physical construction of such layout, alteration, extension, widening, maintenance storage area or garage, change of grade or other improvement may be made.”

       General Statutes § 48-11 provides in pertinent part: “Whenever the state takes property under any provision of the general statutes or any special act, and the state and the owner or owners of such property or of any interest therein are unable to agree on the amount to be paid as just compensation for such property, the taking authority shall file, with the clerk of the court to which a petition for the assessment of just damages has been preferred, a statement of the sum of money estimated by such authority to be just compensation for the property or interest therein taken. Such sum shall be deposited in said court to the use of the person or persons entitled thereto and notice of such deposit shall be given to such person or persons by such clerk.”

       General Statutes § 13a-76 provides in pertinent part: “Any person claiming to be aggrieved by the assessment of such special damages or such special benefits by the commissioner may, at any time within six months after the same has been so filed, apply to the superior court for the judicial district within which such land is situated or, if said court is not in session, to any judge thereof for a reassessment of such damages or such benefits so far as the same affect such applicant . . . .”

       The supporting documents filed with defendant’s motion for summary judgment were:
      Exhibit A - Affidavit.
      Exhibit B - Land Payment Voucher.
      Exhibit C - Application to Court.
      Exhibit D - Referral to State Referee.
      Exhibit E - Transcript of Referee Hearing.
      Exhibit F - Memorandum of Decision 12/16/83.
      Exhibit G - Memorandum dated 1/18/84: Cichowski.
      Exhibit H - Notice of Condemnation 2/15/84.
      Exhibit I - Appeal Filed 5/25/84.
      Exhibit J - Transcript of Deposition: E. DeLucia.
      Exhibit K - Transcript of Deposition: J. Cichowski.
      Exhibit L - Transcript of Deposition: D. Leavitt.
      Exhibit M - Request for Admission with Responses.

       We note that when the plaintiff did raise this claim, he did no more than make a bare assertion that the failure to consider the affidavit was error, and provided no legal authority or argument to support his claim. Such a claim thus evades meaningful appellate review. See McGaffin v. Roberts, 193 Conn. 393, 399 n.6, 479 A.2d 176 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1747, 84 L. Ed. 2d 813 (1985); Goold v. Goold, 11 Conn. App. 268, 527 A.2d 696 (1987).

       The land payment voucher described the property by reference to a map apparently prepared in connection with the sale. The plaintiff does not contend that the map was inaccurate in any way. Although no time for performance was specified in the contract, the law presumes that it would be performed within a reasonable time. Benassi v. Harris, 147 Conn. 451, 458, 162 A.2d 521 (1960).