author: Spallone, J. Lavery, J.,

text:
    State of Connecticut v. Roy Tyson
    (8170)
    Spallone, Foti and Lavery, Js.

      Argued May 15
    decision released August 28, 1990

      Lauren Weisfeld, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (defendant).

      Susan C. Marks, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James Clark, assistant state’s attorney, for the appellee (state).
   Spallone, J.

The defendant appeals from his conviction, after a jury trial, of the crime of assault in the first degree in violation of General Statutes § 53a-59 (a) (1). He claims the trial court improperly (1) failed to instruct the jury on the law of self-defense, (2) refused to strike the victim’s testimony as a sanction for the state’s deliberate destruction of his taped statement, and (3) refused to instruct the jury on the defendant’s decision not to testify using the language he requested. We affirm the judgment of the trial court.

The victim testified at trial to the following. The defendant, Roy Tyson, and the victim, Calvin Jones, were neighbors in an apartment complex in New Haven and had known each other for about six months at the time of the assault. At about 5 p.m. on November 30, 1986, Jones was at home asleep on the living room couch when the defendant knocked at his door. Jones invited the defendant inside and then returned to his couch. As he turned to fluff his pillow, Jones saw the defendant coming at him with a carving knife. The defendant said, “Your boy is looking for me, huh?” Jones believed that statement referred to a friend’s attempt to collect a debt owed by the defendant.

Jones was stabbed in his midsection and cut his hand when he attempted to. grab the knife blade. The two men struggled across the living room to the front door. At one point, Jones had the defendant’s back against the door and was holding the defendant’s knife hand. The defendant appeared to relax slightly but when Jones relaxed his grip, the defendant again lunged at him and they fell wrestling to the floor.

The defendant grabbed a pair of pliers from a table and began to strike Jones on the top of his head. Jones backed into the kitchen. The defendant pursued him, grabbed a butter knife from the table, stabbed Jones in the head, and attempted to stab him in the throat and eyes. When Jones fell to the floor, the defendant picked up a butcher knife and again attempted to stab him. Jones averted the attack and the men engaged in a renewed struggle. The defendant suddenly disengaged and left the apartment.

After a few minutes, Jones called his girl friend’s mother, telling her that he had been beaten and stabbed and needed help. The mother relayed the information and, when the girl friend and a neighbor arrived at the apartment, Jones was lying on the floor covered with blood. The neighbor immediately summoned help by dialing 911.

The defendant and the victim were both treated at a hospital that night. A doctor testified that Jones arrived bleeding profusely and in the last stages of cardiovascular shock. He had sustained between fifteen and twenty lacerations to the head, face and neck, including a laceration of the jugular vein and a blowout fracture of his eyesocket. In addition, Jones sustained between twenty and thirty lacerations to his arms, chest, abdomen and back.

The defendant’s medical records were admitted into evidence and indicated that he had sustained a small abrasion on his neck, a laceration of his left palm and a small opening of a scar from recent surgery. The records contained a notation that the defendant told the medical personnel that he was “assaulted by another.” The defendant was not admitted to the hospital.

The defendant did not testify at trial but introduced medical testimony that he had undergone chest surgery seven weeks prior to the incident and had been advised to avoid exertions. An officer of the New Haven police department testified that he had taken a statement from the defendant at the hospital, but the content of the statement was excluded as inadmissible hearsay. The defendant was convicted of first degree assault, and this appeal followed.

I

In his initial claim, the defendant contends that the trial court should have instructed the jury on the defense of justification. The defendant raises two interrelated claims regarding self-defense: first, that the trial court improperly excluded a statement that would have helped establish his claim of self-defense, and second, that even without the statement there was sufficient evidence of self-defense to permit the jury to consider this issue. We disagree.

Self-defense is an expressly recognized justification defense defined in General Statutes § 533L-19. A defendant is entitled as a matter of law to an instruction on a theory of defense only if there is evidence indicating that the defense is applicable. State v. Belle, 215 Conn. 257, 273, 576 A.2d 139 (1990); State v. Webley, 17 Conn. App. 200, 204, 551 A.2d 428 (1988). Once the defense is properly raised, the jury must be instructed that the state bears the burden of disproving it beyond a reasonable doubt. State v. Cassino, 188 Conn. 237, 241, 449 A.2d 154 (1982).

The narrow issue before us, therefore, is whether the defendant presented sufficient evidence to “raise” the issue at trial. The threshold is not high. The instruction must be given if there is any foundation in the evidence for the defense theory; State v. Belle, supra, 275; and we must view the evidence in the light most favorable to the defendant. State v. Havican, 213 Conn. 593, 595, 569 A.2d 1089 (1990); State v. Cassino, supra, 239. The jury, however, must have before it enough evidence to raise a question of fact without resorting to guess and speculation. State v. Belle, supra.

A

The defendant claims that the wrongful exclusion from evidence of his hospital statement to the police prevented him from introducing the foundation for his self-defense claim. The statement contained the defendant’s account of the events of the evening of November 30, 1986, in which he asserted that Jones had threatened him and then attacked him with a knife. This taped statement was transcribed the next day and the defendant swore to the truth of it and signed the transcript.

Because the defendant chose to exercise his constitutional right not to testify, the only way to put his account of the assault before the jury was to introduce this statement into evidence. The defendant conceded that the statement was hearsay but offered five theories in support of its admissibility: (1) as a party admission; (2) to show state of mind; (3) as a statement of bodily condition; (4) under the residual hearsay exception; and (5) to show the police officer’s bias. We agree with the trial court that none of those exceptions is applicable here.

Trial court rulings on the admissibility of evidence are accorded great deference and will be disturbed on appeal only on a showing of a clear abuse of discretion. State v. Erhardt, 17 Conn. App. 359, 367, 553 A.2d 188 (1989). The defendant here has failed to demonstrate that his hospital statement was admissible on any of his stated grounds.

First, we agree with the trial court that the defendant’s statement is not an admission. Out-of-court statements are not hearsay if those statements are admissions, i.e., statements made by a party opponent and offered against him. State v. Stepney, 191 Conn. 233, 249, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984); In re Jason S., 9 Conn. App. 98, 103, 516 A.2d 1352 (1987); C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 11.5. The defendant could riot offer his own statements for his own benefit under the admission exception to the hearsay rule. State v. Brown, 22 Conn. App. 521, 523, 577 A.2d 1120 (1990); In re Jason S., supra, 103-104.

The defendant’s police statement contains none of the essential guarantees of reliability necessary to justify its admission into evidence under the three other suggested exceptions to the hearsay rule. See State v. Erhardt, supra, 368. This self-serving statement was not offered as an expression of the defendant’s pain or suffering, or as a reflection of his subjective state of mind, or as-an innocent, unself conscious and necessary identification of his attacker. See, e.g., State v. McDowell, 179 Conn. 121, 125, 425 A.2d 935 (1979); State v. Cato, 21 Conn. App. 403, 408-409, 574 A.2d 240 (1990); State v. Dollinger, 20 Conn. App. 530, 542, 568 A.2d 1058 (1990). The defendant failed to demonstrate that the circumstances “indicate a strong likelihood that the statement is truthful.” State v. Erhardt, supra.

The defendant also claims that his statement should have been admitted to show the bias of the police officer who took the statement, on the basis of the fact that the defendant, rather than the victim, was subsequently arrested. This claim is merely the defendant’s last attempt to find a basis for admitting his self-serving statement into evidence. His argument makes clear that he wanted the statement admitted not for impeachment pin-poses but rather for its truth, that is, that Jones struck the first blow and that the defendant acted only to protect himself. “[A] purely hearsay statement [cannot] be admitted as substantive proof of a fact under the guise of impeaching a witness.” State v. Saia, 172 Conn. 37, 50, 372 A.2d 144 (1976).

The court has broad discretion to determine that hearsay evidence is nonetheless admissible because it is clearly necessary and relevant to the resolution of issues. State v. Erhardt, supra. The fact that the defendant was unavailable to testify does not automatically mean there is such a necessity for admitting the hearsay. Id. Nor does the defendant’s allegation that he was attacked first make his hospital statement relevant to the issue of whether a jury instruction on self-defense was warranted. Such a determination requires the court to find that the defendant presented sufficient evidence to satisfy the preliminary requirements of this defense, such as whether the defendant’s use of deadly force was reasonable in the circumstances. As next discussed, the defendant’s statement contains no facts fitting these requirements, and we find that the court could reasonably have concluded that the defendant’s statement was inadmissible hearsay. See id.

B

The defendant contends that sufficient evidence was adduced at trial, even absent his hospital statement, to require a jury instruction on self-defense. The defendant’s surgeon testified that he had performed a recent and painful procedure on the defendant to remove part of his lung, and that the defendant was, at the time of the incident, still recuperating and would likely have found physical exertion both difficult and painful. On cross-examination of three police officers who had seen him on the night in question, the defendant elicited confirmations that he was injured and needed immediate hospital treatment. The defendant was described as being “covered with blood,” and no testimony was offered that the blood was not his own. The evidence in his medical records described his injuries and contained his statement that he had been assaulted. These injuries included a defensive wound on his palm. The victim himself testified that, at one point in the struggle, he had the defendant backed against the door and had one hand at the defendant’s throat.

This evidence, even when viewed in the light most favorable to the defendant, does not, without impermissible speculation, raise the inference that the defendant acted in self-defense. That the defendant had recent surgery is uncontested, but this fact does not support a reasonable inference that the defendant would not therefore have attacked the victim. The defendant was obviously well and strong enough to inflict the victim’s grievous wounds. The testimony of the police officers and medical personnel indicates only that the two men engaged in an altercation, each sustaining injuries.

None of the evidence referred to by the defendant is relevant to the statutory requirements of a justification defense. The fact that the victim had the defendant on the defensive at one point in their struggle says nothing about who began the altercation. See General Statutes § 53a-19 (c) (2); State v. DeJesus, 194 Conn. 376, 390, 481 A.2d 1277 (1984) (self-defense claim is unavailable to an initial aggressor). Because the assault did not occur in his home, the defendant was also under a duty to retreat to avoid his undisputed use of deadly force. General Statutes § 53a-19 (b); State v. DeJesus, supra, 391; State v. Shaw, 185 Conn. 372, 378-79, 441 A.2d 561 (1981), cert. denied, 454 U.S. 1155, 102 S. Ct. 1027, 71 L. Ed. 2d 312 (1982).

The use of deadly force must ultimately be reasonable in the circumstances. The test of an appropriate physical response to a threat is both subjective and objective. State v. Hall, 213 Conn. 579, 586 n.7, 569 A.2d 534 (1990). A level of deadly force may be used only in response to an aggressor’s use or threat of deadly force or great bodily harm. General Statutes § 53a-19 (a). The only evidence of the force of the victim’s alleged attack on the defendant consisted of an abrasion on the defendant’s neck and a cut on his palm.

Finally, it is unreasonable to continue the use of deadly force after the aggressor is subdued. State v. Dejesus, supra, 392. After striking an incapacitating blow that thwarts an attack, the defender simply cannot continue to beat the victim. Id. The victim’s testimony and the evidence of his injuries indicate that the defendant relentlessly pursued him through several rooms of the apartment, wielding a variety of weapons, attacking at times from above and continuing the assault although the victim was lying defenseless on the floor.

A jury instruction on self-defense is not available to a defendant merely for the asking. The defendant would only have been entitled to a jury instruction on his theory of self-defense if he had presented applicable evidence “ ‘no matter how weak or incredible . . . . ’ ” State v. Belle, supra. However low the evidentiary standard may be, it is nonetheless a threshold the defendant must cross. The defendant may not ask the court to boost him over the sill upon speculation and conjecture. Id. No evidence was presented here from which the jury could reach conclusions of fact without resorting to such speculation. The court correctly determined as a matter of law that the defendant offered no basis for a conclusion that he reasonably believed he was under an attack of deadly force to which he reasonably responded after trying to retreat. We conclude, therefore, that the trial court properly refused to charge on the defense of justification.

II

The defendant next asserts that the trial court should have granted his motion to strike the victim’s testimony as a sanction for the destruction of an evidentiary tape recording. The tape contained the victim’s oral statement of the assault given in the hospital to Detective Nicholas Franco of the New Haven police department six days after the incident. The tape was transcribed by a stenographer, and the transcript was reviewed by Franco. Nine days after giving his statement, Jones reviewed the transcript and signed it under oath. The tape was later destroyed.

After Jones testified at trial, the state disclosed that it had originally taped and then erased Jones’ hospital statement. The defendant moved to strike Jones’ testimony. After an evidentiary hearing, the court determined that the police had acted in bad faith because “they knew or should have known” not to destroy disclosable material. The court nevertheless denied the defendant’s motion to strike, finding that there was “absolutely no prejudice to the defendant.” The defendant challenges this ruling, claiming that a finding of bad faith compelled the court to strike the testimony, or that, absent bad faith, the state failed to meet its burden of demonstrating that the loss of evidence was harmless under the circumstances. We do not agree.

We are discouraged to find before us yet another instance of the deliberate destruction of evidence by the New Haven police. See In re Jesus C., 21 Conn. App. 645, 648, 575 A.2d 1031 (1990) (listing eight cases on this problem as a sample of the many heard in this court and our Supreme Court since 1981). “[T]he state cannot avoid its obligations under the rules of practice governing discovery by destroying discoverable material . . . and, in appropriate circumstances, the affected testimony may be struck as a sanction for such destruction.” Id. This sanction is not automatically required, however, if the destruction is intentional but not in bad faith. State v. Belle, supra, 268.

Despite the trial court’s express finding here of the state’s in bad faith, the definition of what constitutes bad faith has been recently clarified. The destruction of tapes is not in bad faith unless “done with intent to deprive the defense of information.” State v. Williamson, 212 Conn. 6,16, 562 A.2d 490 (1989). The trial court here expressly found that the tape erasure was made pursuant to routine police policy. Nothing in this case indicates that the police acted maliciously or with intent directed to this particular defendant. See State v. Belle, supra, 269; State v. Johnson, 214 Conn. 161, 173-74, 571 A.2d 79 (1990).

We have reviewed the relevant factors and are not persuaded that the defendant suffered a constitutional violation as a result of the state’s destruction of Jones’ taped statement. Our review of the record indicates that the victim read and adopted a counterpart transcript shortly after making his statement. See State v. Johnson, supra, 174; State v. Santangelo, 205 Conn. 578, 589, 534 A.2d 1175 (1987). The court found no critical inconsistencies between Jones’ trial testimony and either the transcript or Franco’s written police report prepared at the time of the incident. See State v. Belle, supra, 270-71. “Where all indications are . . . that the witness has given consistent statements, we have been reluctant to find that the defendant suffered prejudice.” State v. Johnson, supra, 175-76. Nor can we say that Jones’ account of the assault was inconsistent with the defendant’s version. See In re Jesus C., supra, 651. The defendant did not testify and thus offered no version of the events.

Finally, the defendant’s conviction did not rest solely on Jones’ testimony. Although the victim’s account bore on the critical issues in the case, the state had strong, untainted proof of the assault. See id. The medical records in evidence indicate that both men were involved in an altercation on the evening of November 30,1986, in which the victim was beaten nearly to death. It is true that Jones’ testimony provided the identification of the defendant as the assailant, but the defendant never denied his involvement and has not alleged that the missing tape contains material which would disprove his involvement. Because it is more probable than not that the production of the taped statement would not have affected the outcome of the trial, we conclude that the trial court did not abuse its discretion in refusing to strike Jones’ trial testimony.

The defendant also asks us to invoke our supervisory powers to reverse his conviction as a remedy for the state’s “ ‘ “cynical attitude towards the judiciary.” ’ ” See State v. Ubaldi, 190 Conn. 559, 571,462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983). In the absence of bad faith, however, we will not apply this extreme sanction without weighing the state’s culpability for destroying the taped statement against the resulting prejudice to the defendant. State v. Santangelo, supra, 587-88. “[Although demonstrating a disturbing indifference to the rule of law”; State v. Williamson, supra; the erasure of Jones’ taped statement was not done with the intent to deprive the defendant of information. As discussed above, the defendant suffered little prejudice. We agree with the trial court that the police certainly should have known better even then, but the erasure occurred in 1986, before the accumulating number of judicial opinions on this issue made our displeasure blindingly clear. However much we deplore the deliberate destruction of discoverable material, we decline to overturn this defendant’s conviction; our outrage is more properly directed to more current defiance of our mandates.

Ill

Because the defendant did not take the witness stand at trial, the court instructed the jury on the defendant’s right to remain silent. The defendant had submitted a request to charge, specifically asking the court not to refer to the defendant’s “failure” to testify. The defendant requested that the jury be charged that he has “exercised his constitutional right” not to speak in his own defense, and he has “chosen not to testify.” The court denied the defendant’s request and, pursuant to General Statutes § 54-84 (b), instructed the jury to draw no adverse inference from the defendant’s “failure” to testify.

The defendant claims that the court should not have refused to use his requested charge and should not have substituted the statutory language. Unlike cases where a defendant complained about the “no adverse inference” instruction for the first time on appeal, the defendant here points out that he objected at trial. See, e.g., State v. Wright, 197 Conn. 588, 594-95, 500 A.2d 547 (1985); State v. Sinclair, 197 Conn. 574, 582, 500 A.2d 539 (1985); State v. Tatem, 194 Conn. 594, 595, 483 A.2d 1087 (1984). “If the defendant felt that the word ‘failure’ had unfavorable connotations, he could have requested that the court modify the charge or not give it at all. . . . In light of the defendant’s inaction, the trial court justifiably employed the language of § 54-84 (b).” State v. Wright, supra, 595. The defendant here points out that he did request modification of the charge, and claims that, therefore, the trial court was not justified in using the statutory language.

This claim is untenable. There is no rational justification for the defendant’s position that the statutory language was an unacceptable alternative to his own suggested jury instructions. Recognizing that the jury may impermissibly hold the defendant’s silence against him, § 54-84 (b) requires the court, even if not so requested, to give jury instructions to reduce speculation. State v. Thurman, 10 Conn. App. 302, 309, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987). The statute thus protects the defendant’s rights more stringently than either the federal or state constitution. State v. Sinclair, supra, 585. A court’s failure to comply with § 54-84 (b) is plain error; id., 582; and deviations altering the meaning of the charge are grounds for reversal. State v. Tatem, supra. We do not read Wright as suggesting that a defendant’s request for modification is binding on the court or that using the statutory language despite a request for modification constitutes reversible error.

The defendant has by implication challenged the constitutionality of § 54-84 (b). The gist of his argument is that the statute’s use of the word “failure” nullifies the presumption of innocence by raising the implication that the defendant had an unmet obligation, an obligation either to respond to the accusation or to prove his innocence. Even if we agree that the word “failure” has a negative connotation, we cannot agree that it is the word itself which generates the prejudice to the defendant. The court’s use of this word did not alert the jury to a fact of which it had been unaware, or make it more likely that the jury would draw an adverse inference from the defendant’s silence.

The jury is patently aware of this “failure.” The United States Supreme Court has noted that “[i]t has been almost universally thought that juries notice a defendant’s failure to testify. . . . ‘ “The laymen’s natural first suggestion would probably be that the resort to privilege in each instance is a clear confession of crime.” ’ ” Carter v. Kentucky, 450 U.S. 288, 301 n.18,101 S. Ct. 1112, 67 L. Ed. 2d 241 (1981). “Certainly the silence of the defendant without explanation or contradiction by him is perceived by the jury, ‘which perceiving they can no more disregard than one can the light of the sun, when shining with full blaze on the open eye.’ ” State v. Tatem, supra, 601, quoting State v. Cleaves, 59 Me. 298, 301 (1871).

Jurors cannot be prevented from speculating about why the defendant refuses to speak for himself in the face of criminal accusations, but the court must “use the unique power of the jury instruction to reduce that speculation to a minimum.” Carter v. Kentucky, supra, 303. The very nature of the “no adverse inference” instruction specified in § 54-84 (b) is to dispel and ameliorate the inevitable speculation and to mitigate the damage to the defendant. The defendant here merely prefers his own phrasing of this warning not to speculate. Calling such failure by a different name would not completely counter the risk inherent in the defendant’s choosing to stand silent, and we cannot fault the court’s adherence to statutory mandates.

The judgment is affirmed.

In this opinion Foti, J., concurred.

Lavery, J.,

dissenting. I cannot adopt the majority’s view that the defendant was not entitled to a jury charge of self-defense. I, therefore, respectfully dissent.

It is recognized as a matter of federal and Connecticut constitutional law, that in criminal trials due process requires the jury to be instructed on a defense when evidence of such a defense has been introduced. See, e.g., Washington v. Texas, 388 U.S. 14,19, 87 S. Ct. 1920,18 L. Ed. 2d 1019 (1967); State v. Miller, 186 Conn. 654, 660-61,443 A.2d 906 (1982); State v. Bethea, 167 Conn. 80, 83, 355 A.2d 6 (1974).

The majority correctly notes that in Connecticut the evidentiary threshold entitling a defendant to a defense instruction is very low. Citing State v. Belle, 215 Conn. 257, 275, 576 A.2d 139 (1990), the majority points out that “the [defense] instruction must be given if there is any foundation in the evidence for the defense theory.” (Emphasis in original.) It is well settled that on appeal the evidence must be viewed in the light “ ‘most favorable to the defendant. . . .’ ” State v. Fuller, 199 Conn. 273, 275, 506 A.2d 556 (1986). In Fuller, our Supreme Court held that a jury charge is “obligatory” and a “ ‘defendant is “entitled to have instructions presented relating to any theory of defense for which there is any foundation in the evidence, no matter how weak or incredible ...” United States v. Platt, 435 F.2d 789, 792 (2d Cir. 1970), quoting United States v. O’Connor, 237 F.2d 466, 474 n.8 (2d Cir. 1956).’ ” State v. Fuller, supra, 278.

Applying this standard to the facts introduced in this case, and taking the evidence in the light most favorable to the defendant, I cannot avoid the conclusion that there was a sufficient factual foundation placed before the jury to support an instruction on self-defense. The following facts speak for themselves: hospital records produced at trial indicated that the defendant stated he was assaulted; these same records describe a defensive wound on the palm of the defendant’s hand. There was no third party witness to the altercation between the defendant and the victim, thus leaving the victim’s testimony as the only report of the altercation. The victim himself testified that at one point in the scuffle he had the defendant by the throat, backed up against a door. The defendant’s surgeon testified that at the time of the fight the defendant was recuperating from extensive chest surgery which would have rendered him weak and easily exhausted from any physical exertion. In my opinion, the testimony and evidence outlined above, without more, provided an ample basis to entitle the defendant to a jury instruction of self-defense.

Accordingly, I dissent.

       General Statutes § 53a-19 provides in pertinent part: “(a) Except as provided in subsections (b) and (c) a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.
      “(b) Notwithstanding the provisions of subsection (a), a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling, as defined in section 53a-100, or place of work and was not the initial aggressor ....
      “(c) Notwithstanding the provisions of subsection (a), a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force . . . .”

       The defendant also claims that he called 911 to report that he had been the victim of an attack, but that the tape of this call was destroyed by the police. The state is well aware that recordings of emergency 911 telephone calls must be preserved. See State v. Williamson, 14 Conn. App. 108, 112-13, 552 A.2d 815, aff'd, 212 Conn. 6, 562 A.2d 470 (1989). The defendant did not brief the effects of this alleged destruction of evidence and merely relegated the issue to a single statement in a footnote. Recent cases have commented on the impropriety of raising claims and arguments in footnotes. See, e.g., State v. Ruscoe, 212 Conn. 223,241 n.9, 563 A.2d 267 (1989), cert. denied, 493 U.S. 1084, 110 S. Ct. 1144, 107 L. Ed. 2d 1049 (1990); In re Jesus C., 21 Conn. App. 645, 649, 575 A.2d 1031 (1990); State v. Webley, 17 Conn. App. 200, 202 n.2, 551 A.2d 428 (1988). We decline to consider this issue.

       General Statutes § 54-84 provides in pertinent part: “(b) Unless the accused requests otherwise, the court shall instruct the jury that they may draw no unfavorable inferences from the accused’s failure to testify. . . .”


source: Caselaw Access Project

author: O’Connell, J.

license: Public Domain

text:
    Jeri L. Billington v. Randall J. Billington
    (8571)
    O’Connell, Cretella and Landau, Js.

      Argued May 2
    decision released August 28, 1990

      Glenn E. Coe, for the appellant (defendant).

      Gerald L. Garlick, for the appellee (plaintiff).
   O’Connell, J.

The defendant appeals from the judgment of the trial court opening and modifying on the ground of fraud an earlier judgment dissolving the marriage of the parties. The dispositive issue is whether the plaintiff failed to make a diligent effort to discover the fraud. We reverse.

The parties’ marriage was dissolved on June 19, 1987, pursuant to a stipulated judgment and settlement agreement. During the negotiations preceding the dissolution, the parties agreed to apportion between them certain pieces of real estate. The defendant received residential property located on Ellsworth Avenue in New Haven, and the plaintiff received other real property of supposedly equal value. On his financial affidavit, the defendant assigned the Ellsworth Avenue property a value of $225,000. He failed, however, to disclose the fact that he had received a written offer of $380,000 for the parcel. On June 22, 1987, three days after the parties’ marriage was dissolved, the defendant accepted the offer and later conveyed the property for a renegotiated price of $360,000.

The parties conducted their settlement negotiations in an atmosphere of mutual distrust and suspicion. Despite the contentiousness of the discussions, neither party obtained an independent appraisal of their real estate, nor did either party file motions for discovery or requests for production. Thus, the plaintiff did not discover the defendant’s arrangement to sell the property until September or October, 1987.

In December, 1988, the plaintiff moved to open the dissolution judgment on grounds of fraud and mutual mistake, asserting that the defendant had improperly concealed the value of the Ellsworth Avenue property. On February 19,1989, the trial court granted the plaintiff’s motion. The court concluded that the defendant’s failure to disclose the $380,000 offer constituted fraud by nondisclosure, and it opened the judgment as to financial orders and ordered a new hearing on those orders. Following a hearing, the court modified the financial award, and the defendant appealed.

It is well established that fraud may be the basis for setting a judgment aside as long as (1) the movant is not guilty of laches or unreasonable delay after discovering the fraud, (2) the movant is diligent in attempting to discover and expose the fraud, (3) there is clear proof of the fraud, and (4) there is a substantial likelihood that the result of a new trial will be different. Jucker v. Jucker, 190 Conn. 674, 677, 461 A.2d 1384 (1983); Greger v. Greger, 22 Conn. App. 596, 598, 578 A.2d 162 (1990).

This court has recently discussed the prerequisite that a movant act with due diligence before a judgment can be opened on the ground of fraud. See Greger v. Greger, supra, 598-99. In Greger, this court reiterated the longstanding Connecticut rule that a judgment may not be opened if the complaining party has not exercised diligent efforts to uncover the fraud. Id., citing Jucker v. Jucker, supra; Varley v. Varley, 180 Conn. 1, 4, 428 A.2d 317 (1980). In the present case, the plaintiff made absolutely no effort to protect herself from the fraud of which she now complains. Although the plaintiff knew that the defendant owned the Ellsworth Avenue property and agreed that he would retain it as part of the property settlement, she never filed motions for discovery or requests for production which would probably have uncovered the fact that the defendant was engaged in negotiations to sell the property for considerably more than its listed value.

Nor did the plaintiff seek an appraisal of the property. It is clear from the evidence the defendant produced at the hearing on the motion to open that had the plaintiff sought an appraisal, she would have discovered that the defendant had substantially undervalued the property. At that hearing, the defendant presented a real estate appraiser who testified that the property had a fair market value of $295,000. The trial court concluded from this appraisal and from the $380,000 offer that the defendant could not have reasonably believed that the Ellsworth Avenue property was worth only $225,000. We agree with this part of the trial court’s holding, but we conclude that there was no factual basis for the trial court’s finding that the plaintiff acted with diligence to discover the fraud. Greger v. Greger, supra; Jackson v. Jackson, 2 Conn. App. 179,193, 478 A.2d 1026, cert. denied, 194 Conn. 805, 482 A.2d 710 (1984).

We recognize that in this case we have reached a result contrary to our holding in Greger, where we held that the judgment should be opened despite the plaintiffs lack of diligence. Greger v. Greger, supra, 600. What distinguishes Greger from this case is that in Greger the trial court found that the defendant had perpetrated a fraud on the court and not just on the plaintiff. Id. Fraud on the court provides an additional, extraordinary and extremely limited basis for opening a judgment. No such finding was made here.

In deciding this case as we do, in no way do we detract from the important role played by financial affidavits. “A court is entitled to rely on the truth and accuracy of [the affidavits] . . . and a misrepresentation of assets and income is a serious and intolerable dereliction on part of the affiant which goes to the very heart of the judicial proceeding.” Casanova v. Casanova, 166 Conn. 304, 305, 348 A.2d 668 (1974). The statements “serve to facilitate the process and avoid the necessity of” parties giving public testimony about their previously private lives. Jackson v. Jackson, supra, 188. Despite the affidavits’ importance, however, the parties are still obligated to take reasonable steps to protect their interests, and, where such measures are not taken, the judgment may not ordinarily be opened.

We conclude that the plaintiff failed to make a diligent effort to discover and expose the fraud and the trial court’s opening of the judgment was, therefore, improper.

The judgment is reversed and the case is remanded with direction to reinstate the judgment of June 19, 1987.

In this opinion the other judges concurred.

       The defendant also claims that (1) there was no clear evidence of fraud, (2) the plaintiff lacked clean hands, and (3) the plaintiffs motion to open was barred by laches.


author: Foti, J.

text:
    State of Connecticut v. Ronald P. Grillo
    (8341)
    Dupont, C. J., O’Connell and Foti, Js.
    Argued April 6
    decision released August 28, 1990

      John T. P. Carey, for the appellant (defendant).

      Peter McShane, deputy assistant state’s attorney, with whom, on the brief, was C. Robert Satti, Sr., for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction of the crime of possession of a narcotic substance in violation of General Statutes § 21a-279 (a).

Following the court’s denial of his motion to suppress all of the evidence seized, and his motions to open and reargue the motion to suppress, the defendant entered a conditional plea of nolo contendere pursuant to General Statutes § 54-94a and Practice Book § 4003. The defendant challenges the trial court’s denial of his motion to suppress on two grounds: (1) the arresting officers did not have a plain view justification for the search; and (2) they violated his due process rights under the constitutions of both the United States and Connecticut by failing to preserve potentially exculpatory evidence.

At the suppression hearing, the trial court made the following findings of fact. On September 16, 1988, at approximately 2 p.m., Officer Robert Veach, the resident trooper for the East Lyme state police barracks, stopped a red Toyota pickup truck driven by the defendant on Route 161 in East Lyme. The defendant’s vehicle was pulled over because Veach observed that the registration tag on the truck had expired. A routine motor vehicle check revealed that the defendant’s license was under suspension. Veach also determined that the pickup truck was being operated without the required insurance. Officer Thomas Smith of the East Lyme police department was also present at the scene of the arrest. The defendant was asked to step out of the vehicle and was placed under arrest for operating a motor vehicle without the required insurance, operating an unregistered motor vehicle, and operating with a suspended license in violation of General Statutes §§ 14-213 (b), 14-12 (a) and 14-215, respectively. Upon placing Grillo under arrest, Veach and Smith observed a transparent garbage bag containing a torch and a box of baking soda in the open bed of the truck. After picking up a corner of the bag, but before opening it fully, Veach also observed an electronic scale, a large glass pipe, and a container of rubbing alcohol. Upon seizing the bag, Veach found it also contained a pad of approximately 200 small square pieces of white paper, small screens, and a quantity of white powder later determined to be cocaine. The officers discarded the bag after the seizure because it was “slimy” or “sticky.”

The defendant maintains that the evidence seized by Veach should have been suppressed by the trial court. The defendant argues that the drugs and paraphernalia in the bed of his pickup truck were seized in violation of article first, § 7, of the Connecticut constitution, and the fourth amendment to the United States constitution, as it is applied to the state through the due process component of the fourteenth amendment. Because of these alleged constitutional violations, the defendant asserts that the evidence should have been suppressed by the trial court under the exclusionary rule. We do not agree.

At this point, it is helpful to set out the relevant constitutional doctrine. The fourth amendment to the United States constitution, and article first, § 7, of the Connecticut constitution, do not prohibit all searches and seizures, but merely unreasonable ones. Elkins v. United States, 364 U.S. 206, 222, 80 S. Ct. 1437, 4 L. Ed. 2d 1669 (1960). The purpose of these constitutional protections is to shield citizens from unwarranted intrusion into their privacy. See State v. Acquin, 177 Conn. 352, 355, 416 A.2d 1209 (1979). The protection of privacy is the paramount purpose of the fourth amendment; State v. Williams, 170 Conn. 618, 624-25, 368 A.2d 140, cert. denied, 429 U.S. 865, 97 S. Ct. 174, 50 L. Ed. 2d 145 (1976); so there can be no fourth amendment protection if there is no legitimate expectation of privacy. Couch v. United States, 409 U.S. 322, 336, 93 S. Ct. 611, 34 L. Ed. 2d 548 (1973); State v. Moscone, 171 Conn. 500, 511, 370 A.2d 1030 (1976).

There is a constitutional difference between searches and seizures of houses and similar structures and searches of vehicles, stemming from either the mobility of an automobile, or the fact that an officer’s extensive and often noncriminal contact with automobiles brings him in open view of evidence, contraband or the fruits or instrumentalities of a crime. State v. Tully, 166 Conn. 126, 134, 348 A.2d 603 (1974). The expectation of privacy in the exterior of a vehicle is held to be minimal because a car travels public thoroughfares and has little capacity to avoid public scrutiny. Cardwell v. Lewis, 417 U.S. 583, 589-90, 94 S. Ct. 2464, 41 L. Ed. 2d 325 (1974); State v. Williams, supra, 625.

It is also well accepted that a police officer is not required to perform his routine duties with his eyes closed. State v. Tully, supra, 132. This assumption has been used in conjunction with the recognized lesser expectation of privacy in a motor vehicle. Id., 133. The resulting line of cases holds that objects in open view of a police officer, who sees them from a lawful vantage point, may be seized without a warrant. State v. Chetcuti, 173 Conn. 165, 377 A.2d 263 (1977); see also State v. Krause, 163 Conn. 76, 301 A.2d 234 (1972).

In the present case, the defendant had drugs and paraphernalia stored in a clear plastic bag in the open bed of a pickup truck. The contents were visible to public scrutiny as the vehicle was operated on public thoroughfares. The defendant’s expectation of privacy is comparable to that of the defendant in State v. Williams, supra, where a search of a vehicle’s exterior was not constitutionally offensive. The only difference in the expectation of privacy between the open bed of a pickup truck and the exterior of a car, is the fact that the truck bed is partially enclosed by the sides of the truck. The defendant’s truck bed, however, does not warrant a higher degree of privacy than does a trunk that has been voluntarily opened by a motorist. See State v. Smith, 157 Conn. 351, 355, 254 A.2d 447 (1969) (not an unreasonable search for an officer to peer into a car’s open trunk where the car was in a public place, and the officer was there legally); see also State v. Bryant, 19 Conn. App. 626, 629, 563 A.2d 326, cert. denied, 212 Conn. 821, 565 A.2d 540 (1989) (no search when defendant voluntarily opened the trunk of his car revealing 484 vials of crack cocaine to an officer).

Veach observed the drugs and paraphernalia in the bed of the truck while arresting the defendant for motor vehicle offenses. There was no challenge to the propriety of the stop or arrest. Veach was standing on the side of a public highway when he viewed the drug paraphernalia through the clear bag. Veach’s simple act of lifting the corner of the transparent bag, without opening it completely, or manipulating it further, is not sufficient to create a search. We conclude that there was no unreasonable search or seizure in this case.

The defendant next contends that the discarding of the bag after its seizure by the arresting officers deprived him of his due process rights. We do not agree.

In considering whether an underlying prosecution should be dismissed because of lost or destroyed evidence, the trial court must look to numerous factors including (1) the reason for the unavailability of the evidence, (2) its materiality, (3) the likelihood of mistaken interpretation of it by witnesses or the jury, and (4) the prejudice to the defendant caused by its unavailability. State v. Hamele, 188 Conn. 372, 381, 449 A.2d 1020 (1982); State v. Leroux, 18 Conn. App. 223, 230-31, 557 A.2d 1271, cert. denied, 212 Conn. 809, 564 A.2d 1072 (1989).

In examining the motives behind the destruction of evidence our courts have considered such factors as whether the destruction was deliberate and intentional rather than negligent; State v. Gonzalez, 206 Conn. 213, 537 A.2d 460 (1988); or done in bad faith or with malice; State v. McIver, 201 Conn. 559, 518 A.2d 1368 (1986); or with reckless disregard; State v. Tyson, 23 Conn. App. 28, 40-41, 579 A.2d 1083 (1990); State v. Williamson, 14 Conn. App. 108, 552 A.2d 815 (1988), aff' d, 212 Conn. 6, 562 A.2d 470 (1989); or calculated “to hinder the defendant’s defense, out of other animus or improper motive, or in reckless disregard of the defendant’s rights.” State v. Leroux, supra, 232. The court in this case found the destruction to be “inadvertent.” Clearly, the discarding of the plastic bag was both deliberate and careless, perhaps even negligent, but it was done in good faith, and without disregard of the defendant’s rights. The issue of motivation must be determined by the trier of fact. The determination of the credibility of the witness and the evidence presented is within the sole province of the trier of the facts. Nor’easter Group, Inc. v. Colossale Concrete, Inc., 207 Conn. 468, 473, 542 A.2d 692 (1988).

The second factor we must consider is the materiality of the evidence. The bag was clearly relevant and important to the defense as to the degree of its transparency. This evidence was not, however, critical to the defense. Both officers were available to testify and were cross-examined as to the bag. The defendant was also free to present evidence to contradict the testimony of the officers as to the transparency of the bag.

With regard to the third factor, it is unlikely that the trier of the fact would be misled by the absence of the bag since the testimony of the witnesses would be sufficient to describe accurately the nature of the bag, leaving the issue of credibility entirely to the trier.

As to the fourth factor, we conclude that the prejudice to the défendant was minimized by the availability of the officers for extensive cross-examination. The defendant had the opportunity to impeach Veach as to why he had discarded the bag, and thereby to damage his credibility in the eyes of the trier of the fact. He also had the opportunity to request that an adverse inference be drawn against the state through an appropriate instruction from the court. The prejudice to the defendant was, therefore, not substantial. The defendant’s right to a fair trial was not lost as he was allowed fully to develop and present the issue of the missing plastic bag at trial.

After weighing the four factors articulated by Leroux, we conclude that the defendant was not deprived of his due process rights by the discarding or destruction of the plastic bag. Although the bag would have been material, the availability of adequate trial safeguards to minimize the likelihood of mistaken interpretation of the destroyed evidence, plus the absence of a significant showing of prejudice, did not warrant the granting of the defendant’s motion to suppress.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 54-94a provides in pertinent part: “When a defendant . . . enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure . . . the defendant after the imposition of sentence may file an appeal within the time prescribed by law.”
      Practice Book § 4003 provides in pertinent part: “(a) When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss.”

       The defendant specifically claims a violation of § 1 of the fourteenth amendment to the United States constitution, and article first, § 8, of the Connecticut constitution.

       The defendant does not contest the trial court’s finding that the initial stop of his motor vehicle was done with probable cause.

       Following the denial of his motion to suppress, the defendant moved to open his motion to suppress, and also filed a motion to reargue, citing the availability of a previously unavailable witness, who would be expected to testify as to the opaque character of the bag. These motions were denied, but the defendant makes no claims of abuse of discretion as part of this appeal.

       Article first, § 7, of the Connecticut constitution and the fourth amendment to the United States constitution use the same words and are read to mean the same thing. State v. Mariano, 152 Conn. 85, 95, 203 A.2d 305 (1964), cert. denied, 380 U.S. 943, 85 S. Ct. 1025,13 L. Ed. 2d 962 (1965); Hing Wan Wong v. Liquor Control Commission, 160 Conn. 1, 5-6, 273 A.2d 709 (1970), cert. denied, 401 U.S. 938, 91 S. Ct. 931,28 L. Ed. 2d 218 (1971); Ajello v. Hartford Federal Savings & Loan Assn., 32 Conn. Sup. 198, 206-208, 347 A.2d 113 (1975).

       We note that the parties incorrectly relied upon cases in which evidence seized in the course of a search was admissible at trial pursuant to the plain view doctrine. Because there was no search in the present case, the plain view doctrine does not enter into our analysis. See State v. Federici, 179 Conn. 46, 56 n.6, 425 A.2d 916 (1979); 1 W. LaFave, Search and Seizure § 2.2 (a) (distinguishing plain view and open view doctrines).

       Although the defendant alleges that he was deprived of constitutional rights on the basis of the destruction, this claim is normally raised by a motion to dismiss. See, e.g., State v. Gonzalez, 206 Conn. 213, 537 A.2d 460 (1988); State v. Leroux, 18 Conn. App. 223, 557 A.2d 1271, cert. denied, 212 Conn. 809, 564 A.2d 1072 (1989). The defendant here raised this claim in his motion to suppress, but did not specify the destruction of the bag. We will review this claim, however, because of that motion’s broad statement that he was claiming “on the grounds herein stated and on such other grounds as [the defendant] may assert upon a full hearing on the merits of this [m]otion.” (Emphasis added.) The record shows that the defendant raised this during the hearing.


author: Daly, J.

text:
    Lynn P. Richard v. Bruce G. Richard
    (8588)
    Daly, O’Connell and Foti, Js.
    Argued May 9
    decision released August 28, 1990

      Edward R. Giacci, for the appellant (defendant).

      Lynn P. Richard, pro se, the appellee (plaintiff).
   Daly, J.

The defendant appeals from the trial court’s denial of his motion for modification of alimony and child support. The dispositive issue is whether the trial court should have considered the defendant’s evidence that his job change was involuntary before it concluded that the defendant had failed to show a substantial change in his circumstances because that change was voluntary. We conclude that the court should have considered this evidence.

The parties’ nine year marriage was dissolved on March 25,1988. At the dissolution hearing, the plaintiff testified that the parties had reached an agreement concerning certain aspects of the property settlement and child custody. Included in this testimony was the understanding that the parties contemplated that the plaintiff would get a part-time job and that this would not be a substantial change in circumstances. At the conclusion of the plaintiff’s testimony, the defendant acknowledged that this was the parties’ agreement. The court then enumerated several findings from the bench and declared the parties’ marriage dissolved. Incorporated within the court’s written judgment were orders based on the plaintiff’s testimony concerning the parties’ agreement. The relevant orders were that the defendant would pay the plaintiff $75 per week, per child, for the support of the parties’ two minor children, and that the defendant would pay the plaintiff $100 per week as alimony “until the youngest child attains the age of eighteen years. The term of said alimony is non-modifiable. If the alimony shall be terminated . . . the husband shall pay child support in the amount of one hundred twelve and 50/100 ($112.50) dollars per child, per week, for a total support payment of two hundred twenty-five and 00/100 ($225.00) dollars per week.”

On July 11,1988, the defendant filed his motion for modification of alimony and child support, alleging that both parties had undergone a substantial change in circumstances. This motion gave notice that oral argument and testimony were required.

The hearing on the motion was not held until October 18, 1989. The record indicates that immediately before the hearing the defendant filed a new financial affidavit, dated October 18,1989, and the plaintiff also filed a new financial affidavit, dated October 17,1989. At the start of the hearing, the defendant explained to the court that, although he was presently working for Sikorsky Aircraft at the Bridgeport plant, the information contained in the new financial affidavit that showed a lower weekly income was based on a job transfer to a Florida plant as of October 30,1989. The defendant indicated at that time that “the issue is whether or not that’s a voluntary transfer or whether it’s mandatory.”

Later in the hearing, the court asked the defendant whether he wanted to proceed with argument or with the financial affidavits. The defendant’s counsel requested that the plaintiff respond to his argument and stated, “if the court believes the need for testimony, my client is ready to testify.”

The defendant then summarized his argument. He first asserted that he had substantial change in his circumstances because he was in the process of changing jobs and would be earning less money. A comparison of his financial affidavits showed that his stated gross weekly income would decrease from $612.73 to $425.60 and his net weekly income would decrease from $376.26 to $296.10. He then asserted that there was a substantial change in the plaintiff’s circumstances because she had become employed part-time. The gross income from that job was $140 and the net weekly income was $111.88. The plaintiff’s financial affidavit filed at the time of the dissolution showed that she had no net weekly income.

The plaintiff then countered the defendant’s argument that either or both of the parties had a substantial change in circumstances. As to the argument that the defendant had a substantial change in his circumstances, the plaintiff stated, “I believe that [the defendant’s financial situation] is going to take testimony but it is our position that he is making this move voluntarily.” The plaintiff then articulated reasons for her opinion that the job change was voluntary.

At the conclusion of the plaintiff’s argument, the court, ruling from the bench, denied the defendant’s motion for modification on the ground that the defendant had failed to show a substantial change in circumstances. When the defendant asked in court for some clarification, the court stated, “I’m saying the future employment of the wife was fully contemplated by the parties and the fact that the defendant is voluntarily taking a new job and [ajffecting his own figures is not a substantial change in circumstances.” (Emphasis added.) The defendant then reiterated his request that the court hear testimony on the issue of whether the defendant’s job change was voluntary. The court denied this request and reiterated that the defendant’s motion for modification was denied. This appeal ensued.

A trial court’s power to modify the financial orders made incident to a judgment of dissolution is statutory. Pursuant to General Statutes § 46b-86 (a), which was revised by Public Acts 1987, No. 87-104, the court may modify judgments of dissolution rendered after October 1,1987, “upon a showing of [a] substantial change of circumstances, whether or not such change of circumstances was contemplated at the time of dissolution. By written agreement, stipulation or by decision of the court, those items or circumstances that were contemplated and are not to be changed may be specified in the written agreement, stipulation or decision of the court. ” (Emphasis added.) The effect of the emphasized portion of the statute was to shift the burden of proof from the moving party to the party resisting the modification with regard to contemplation only. See Darak v. Darak, 210 Conn. 462, 470, 556 A.2d 145 (1989). The burden of “clearly and definitely” demonstrating the substantial change in the circumstances of either of the parties, however, remains with the moving party; see Curzi v. Curzi, 21 Conn. App. 5, 9, 570 A.2d 1134 (1990); Kelepecz v. Kelepecz, 187 Conn. 537, 538, 447 A.2d 8 (1982); and must be established before the issue of contemplation will be considered by the court. See Curzi v. Curzi, supra. “That party must demonstrate that continued operation of the original order would be unfair or improper.” Harlan v. Harlan, 5 Conn. App. 355, 357, 496 A.2d 129 (1985).

“In a modification action, the decision of the trial court is attributed great weight and every consideration must be given in support of its correctness. McGuinness v. McGuinness, 185 Conn. 7,13, 440 A.2d 804 (1981). The action of the trial court will not be disturbed unless the court has abused its discretion or its finding has no reasonable basis in- the facts. O’Bymachow v. O’Bymachow, [12 Conn. App. 113,116, 529 A.2d 747 (1987)].” Wanatowicz v. Wanatowicz, 12 Conn. App. 616, 618, 533 A.2d 239 (1987).

The defendant claims that the court abused its discretion when it refused to allow testimony on the issue of whether the defendant voluntarily changed his job.

“ ‘Inability to pay’ does not automatically entitle a party to a decrease of an alimony order. It must be excusable and not brought about by the defendant’s own fault.” Sanchione v. Sanchione, 173 Conn. 397, 407, 378 A.2d 522 (1977); see also Gleason v. Gleason, 16 Conn. App. 134, 137, 546 A.2d 966 (1988).

In the present case, the trial court based its conclusion that the defendant failed to show a substantial change in his circumstances on the finding that the defendant’s decrease in income was brought about by his own action.

The record indicates that this finding of fact was made without permitting the defendant to present any evidence on this issue. The only evidence upon which the court could have made this finding came from the plaintiff in oral argument. We conclude that before the court could find that the defendant’s decrease in income was brought about by his own action, the trial court should have considered the defendant’s evidence.

The judgment denying the defendant’s motion for modification is reversed and the case is remanded to the trial court for a new hearing in accordance with this opinion.

In this opinion the other judges concurred.

       The defendant also claimed that the trial court should not have found that it did not have jurisdiction to rule on his motion for modification. An examination of the record does not disclose such a finding by the trial court.

       After the plaintiff articulated her reasons for her opinion that the defendant’s job change was voluntary, the defendant objected and the court indicated that it would not consider that statement.

       The defendant’s counsel stated, “If the court pleases, at this time, and that’s why I indicated there may be a need for testimony on the issue of whether this is voluntary.
      “I suggest that maybe Mr. Richard should testify and the court would make a determination at that time, whether it’s voluntary or whether it was something that was inevitably the handwriting on the wall, whether it was necessary at the time. Mr. Richard is not conceding that this was a voluntary move.
      “If that’s the court’s concern, I would like to call Mr. Richard to the stand so the court would hear from him as to why the move is being made from Connecticut to Florida.”


text:
    John M. Phillips v. Warden, State Prison
    (7762)
    O’Connell, Foti and Cretella, Js.

      Argued May 11
    decision released August 28, 1990

      Timothy H. Everett and Giovanna Tiberii, certified legal intern, with whom, on the brief, were Michael R. Sheldon and Todd D. Fernow, for the appellant (petitioner).

      James A. Killen, assistant state’s attorney, with whom, on the brief, were John Connelly, state’s attorney, and Patricia King, former deputy assistant state’s attorney, for the appellee (respondent).
   Foti, J.

This is an appeal from a decision of the trial court denying the petitioner’s application for a writ of habeas corpus and rendering judgment for the respondent. The application challenges the validity of the petitioner’s conviction, after a jury trial, of sexual assault in the first degree, unlawful restraint in the first degree and burglary in the first degree. The petitioner claims on appeal that the habeas court improperly concluded (1) that the petitioner was not denied the effective assistance of counsel at his trial due to a conflict of interest, and (2) that the trial court’s failure to inquire into defense counsel’s possible conflict of interest did not warrant the issuance of the writ of habeas corpus. We affirm the judgment of the habeas court finding that the petitioner did not meet his burden of proof on these claims.

On May 13,1983, the court sentenced the petitioner to concurrent terms of incarceration of eighteen years for sexual assault in the first degree and five years for unlawful restraint in the first degree, and to a consecutive term of twelve years for burglary in the first degree. The petitioner’s total effective sentence is thirty years.

The genesis of the petitioner’s claim of ineffective assistance of counsel lies in the murder conviction of his attorney, Bernard Avcollie. Avcollie had been a prominent attorney and a well known politician in the greater Waterbury area for many years prior to his conviction for the murder of his wife in 1977. Avcollie’s trial took place in the judicial district of Waterbury. When his conviction was set aside by the trial judge, the state appealed. The conviction was later reinstated by our Supreme Court in State v. Avcollie, 178 Conn. 450, 423 A.2d 118 (1979), cert. denied, 444 U.S. 1015, 100 S. Ct. 667, 62 L. Ed. 2d 645 (1980). After denial of certiorari by the United States Supreme Court, the trial court sentenced Avcollie, on March 14, 1980, to an indefinite term of eighteen years to life imprisonment. Avcollie’s judgment of conviction was affirmed by our Supreme Court on December 14,1982, in State v. Avcollie, 188 Conn. 626, 453 A.2d 418 (1982), cert. denied, 461 U.S. 928, 103 S. Ct. 2088, 77 L. Ed. 2d 299 (1983).

Avcollie’s legal battle was the source of numerous headlines in the Waterbury and Naugatuck newspapers between 1975 and 1983. These publications have wide circulation in the Waterbury judicial district from which jurors for the petitioner’s trial were chosen. The case against Avcollie was prosecuted by the Waterbury state’s attorney’s office, as was the case against the petitioner.

After Avcollie’s sentence was imposed, his counsel reached an agreement with the Waterbury bar grievance committee that permitted him to continue to practice law until his direct appeals were exhausted. The grievance committee then filed a motion to have its report on Avcollie made public in order to protect clients, both current and potential. The rules of practice did not provide for temporary suspensions at that time, and the state’s attorney’s office would not release the information the grievance committee needed to proceed against Avcollie. The court, Henebry, J., signed the order making the report public.

As a result of the notoriety surrounding his murder case, Avcollie’s once flourishing law practice rapidly diminished and he took cases that he once would have refused, including a certain sexual misconduct matter that was resolved by way of accelerated rehabilitation. That case led to referrals of other sex cases. The petitioner in the present case was arrested and held in custody on September 11, 1982. A friend of his secured an associate of Avcollie’s to represent him at the arraignment. The associate introduced the petitioner to Avcollie at the courthouse on the day of arraignment and suggested that the petitioner hire Avcollie to represent him in the matter. At that first meeting, Avcollie did not tell the petitioner anything about his legal problems. The petitioner did not move to Connecticut until 1978. He was not aware of Avcollie’s notoriety. Avcollie agreed to represent him because he. was willing to pay a $2000 retainer fee and because Avcollie did not believe the case would go to trial. At that time, the petitioner made Avcollie aware that he intended to present an alibi defense.

Three days after the petitioner’s arraignment, he was released on bail. It was then that he learned of Avcollie’s personal legal situation. His friend informed him that Avcollie had been tried and convicted for the murder of his wife, that the conviction had been overturned by the trial judge, and that the state was appealing. The petitioner on the recommendation of friends and relatives, decided to retain Avcollie. He met with Avcollie again about ten days later at Avcollie’s office and paid the $2000 retainer. At that meeting, Avcollie opened a file for his client. Avcollie took two pages of notes concerning the petitioner’s background, his job, the criminal charges filed against him, his alibi and a list of the state’s witnesses. About a month later, they met for a third time. At that time, Avcollie informed the petitioner that, because the case would probably go to trial, there would be additional fees. Avcollie did not disclose his own legal problems at any of those meetings.

Sometime after January 20, 1983, the pair met in Avcollie’s office again. At that meeting, the petitioner was told that he would have to pay for Avcollie’s court time once the case went to trial. For the first time, Avcollie briefly mentioned his own legal situation. He informed the petitioner that the Connecticut Supreme Court had affirmed his murder conviction, and that he was concerned that his own legal problems could affect the jury’s attitude toward the petitioner. He went into no further detail at that point. Avcollie had a twofold purpose in calling that meeting. First, he wanted the petitioner to know the status of Avcollie’s criminal conviction. Second, Avcollie wanted to assure himself that his continued representation of the petitioner would be on a “cash and carry basis.” When Avcollie assured the petitioner that he felt he could do a credible job despite his legal problems, the petitioner indicated that he wanted their attorney-client relationship to continue. That agreement was never reduced to writing.

During the general voir dire, Avcollie told the panel of potential jurors: “If you know anything about any of the people I have mentioned that work in my office or particularly about me, if there is anything that you know or feel about me that will inhibit your ability to judge this man fairly, then you should so indicate. You are not, of course, sitting in judgment of his attorney nor of his office staff any more than you are sitting in judgment of the state’s attorney’s office, you’re in judgment of the defendant.”

Even though Avcollie believed that most members of the jury panel knew of his conviction, he declined to ask the panelists during individual voir dire whether they were aware of his criminal conviction or whether any juror knew him from his participation in politics or local affairs.

The habeas court, in a thorough and well reasoned fifty-five page memorandum of decision, concluded that there was no actual conflict of interest and denied the petition. We agree with the judgment of the habeas court and affirm.

I

The petitioner first claims that the habeas court improperly concluded that there was no conflict of interest between the petitioner and Avcollie. Closely tied to this claim are his assertions that the court improperly defined the term conflict of interest, and that it misapplied the test enunciated in Cuyler v. Sullivan, 446 U.S. 335, 349, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980).

“Our state and federal constitutions guarantee a criminal defendant the right to assistance of counsel. U.S. Const., amend. VI; Conn. Const., art. 1, § 8. As an adjunct to this right, a criminal defendant is entitled to be represented by an attorney free from conflicts of interest.”State v. Williams, 203 Conn. 159,166-67, 523 A.2d 1284 (1987). That right to conflict free representation applies also to matters where a conflict of interest may impair an attorney’s ability to represent his client effectively. Id.

A defendant’s sixth amendment right to conflict free counsel is constitutionally distinct from that defendant’s right to a competent attorney. State v. Marion, 175 Conn. 211, 215-16, 397 A.2d 533 (1978). It must also be noted that an attorney may not accept employment if the exercise of his professional judgment on behalf of his client will be, or may reasonably be, affected by his own personal interests. Rules of Professional Conduct, Rule 1.7; Code of Professional Responsibility, DR 5-101.

A

CONFLICT OF INTEREST

A conflict of interest has been determined to be present where one party in interest stands to gain significantly by adducing evidence, advancing arguments or engaging in conduct that is detrimental to the interests of another party. See Festo v. Luckart, 191 Conn. 622, 631, 469 A.2d 1181 (1983); State v. Marion, supra, 219. “ ‘In order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.’ Cuyler v. Sullivan, [supra, 348].” State v. Rodriquez, 200 Conn. 685, 696, 513 A.2d 71 (1986); Festo v. Luckart, supra. Once an actual conflict is demonstrated, prejudice will be presumed. Strickland v. Washington, 466 U.S. 668, 692, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Thus, the standard is that the petitioner must first demonstrate an actual conflict of interest, and then that the conflict adversely affected the attorney’s performance. Once the petitioner establishes an actual conflict, he need not prove prejudice, but simply a lapse in representation resulting from the conflict. United States v. Iorizzo, 786 F.2d 52, 58 (2d. Cir., 1986).

As proof of an actual conflict, the petitioner in the present case asserts (1) that Avcollie failed to advocate the petitioner’s best interest when he defended the petitioner in the same courthouse and against the same prosecutor’s office that had pursued Avcollie’s own criminal conviction, (2) that Avcollie jeopardized the petitioner’s constitutional right to a fair trial before an impartial jury when he failed to voir dire prospective jurors individually in order to ferret out the extent of their knowledge of Avcollie’s own case and any bias that may have resulted from this knowledge, and (3) that Avcollie took the petitioner’s case only because he needed the fee.

We agree with the habeas court’s findings that there was no conflict of interest between the petitioner and Avcollie. To the contrary, their interests converged at all times to achieve the ultimate goal of acquittal, and have not been shown to have diverged at any point. Avcollie apprised the petitioner of the inherent risks of his representation as .required under the Code of Professional Responsibility, DR 5-105 (C), and the petitioner chose, nevertheless, to continue their attorney-client relationship.

The petitioner’s bald assertions as to the situs of the trial do not substantiate his claim of conflict of interest. Avcollie was in an adversarial relationship with the Waterbury prosecutor’s office in both cases. The petitioner makes no claim that Avcollie compromised the petitioner’s defense either to advance Avcollie’s own defense, or in an attempt to gain, in any other way, at the petitioner’s expense.

Similarly, the petitioner’s claim that Avcollie should have voir dired the jurors individually to discover the extent of their knowledge of Avcollie’s conviction is also unfounded. Had Avcollie done as the petitioner now suggests, this tactic could have served to ensure a biased jury rather than to dispel any potential bias or prejudice in that it would have made them aware of the details of Avcollie’s personal legal dilemma. Avcollie may well have made a strategic, reasonable and deliberate choice to protect the interests of the petitioner by not planting the seeds of prejudice where none existed.

Finally, we cannot conclude that it is a conflict of interest for an attorney to accept a case because he is in need of the fee. A fee is generally defined to be a remuneration for the services of a professional person, such as a lawyer or a physician. See Ballentine’s Law Dictionary, 3d Ed. Clearly, there is no conflict or divergence of interests present when a client pays an attorney an agreed upon fee in exchange for professional legal advice and counsel.

The habeas court meticulously considered the petitioner’s claim that an actual conflict of interest existed. The issue of credibility and the weight to be given the evidence presented is within the province of the trier of facts and we cannot retry the case; State v. Reddick, 207 Conn. 323, 328, 541 A.2d 1209 (1988); nor can we substitute our judgment for that of the trier of fact. State v. Almeda, 211 Conn. 441, 450, 560 A.2d 389 (1989). In light of the record before us and the substantial findings of fact rendered by the habeas court, we conclude that there was no conflict of interest between the petitioner and Avcollie. .

B

HABEAS COURT’S DEFINITION OF CONFLICT OF INTEREST

The petitioner also claims that the habeas court improperly used the phrase “cause of action” rather than “course of action” when defining the term conflict of interest in its memorandum of decision. The petitioner asserts that the court’s nearly consistent reliance on the wrong phrase lead it to look for a divergence of interest only as to the petitioner’s and Avcollie’s ultimate goal. He contends that while both may have had the same ultimate goal of the petitioner’s acquittal, Avcollie’s means of achieving this goal placed his course of action in conflict with the petitioner’s best interest.

Even if we were to assume, arguendo, that the word “cause” was neither a misspelling nor a typographical error, and that the court intended to say exactly what it did say, we cannot conclude that this phrasing, in any way, affected the court’s conclusion that no actual conflict was ever demonstrated. In light of our conclusion above that the interests of the petitioner and Avcollie did not diverge at any point during the proceedings, any misconception by the habeas court on this point remains irrelevant. Because the habeas court found, and we agree, that the interests and goals of Avcollie and the petitioner were parallel at all times, there was no conflict of interest as to the course or cause of action.

II

The petitioner next claims that he is entitled to a new trial because the trial court violated the sixth amendment duty to inquire into Avcollie’s conflict of interest.

“A trial court has the obligation to inquire into the possibility of a conflict of interest ‘when it knows or reasonably should know’ that a potential conflict exists. State v. Martin, [201 Conn. 74,79, 513 A.2d 116 (1986)]; State v. Rodriquez, 200 Conn. 685, 695, 513 A.2d 71 (1986); Festo v. Luckart, supra, 629.” State v. Williams, 203 Conn. 159, 168, 523 A.2d 1284 (1987).

The habeas court concluded “that although none of the claims above was sufficient to alert the trial court to a possible conflict, their cumulative effect suggested a potential conflict. As such, the trial court should have known of a possible conflict and initiated an inquiry.” The court, however, held that a reversal of the conviction was not required since it had found no actual conflict of interest under the facts of the case.

The respondent argues alternatively (1) that the habeas court improperly held that the trial court had a duty to initiate an inquiry into Avcollie’s potential conflict of interest, (2) that the habeas is not warranted because the court found no actual conflict was demonstrated by the petitioner, or (3) that the petitioner’s awareness of Avcollie’s legal problems constituted a waiver of his right to conflict free counsel. The petitioner maintains that he is entitled to a reversal of his conviction because the respondent cannot show that the court’s failure to conduct an inquiry was harmless beyond a reasonable doubt.

The habeas court in determining that an automatic reversal is not mandated under the facts of this case also found that as of the date of the petitioner’s trial Avcollie was fully licensed to practice law in the state of Connecticut and that neither he nor the petitioner, nor the state’s attorney brought to the attention of the trial court the possibility of a conflict of interest arising from Avcollie’s representation.

Relying on the holding of Wood v. Georgia, 450 U.S. 261, 272 n.18,101 S. Ct. 1097, 67 L. Ed. 2d 220 (1981), our Supreme Court has held that a petitioner’s conviction shall be reversed only when an actual conflict of interest has been found. Festo v. Luckart, supra, 630-31. Because the petitioner’s habeas petition resulted in the required hearing, “we need only review whether the habeas court erred in finding that there was no actual conflict.” Id., 630.

In accord with Festo, we conclude that even if the trial court should have known of Avcollie’s potential conflict, its failure to conduct an inquiry into the same could have been found harmless beyond a reasonable doubt because the record clearly shows that there was no actual conflict of interest. The lack of an actual conflict precluded habeas relief under the facts of this case.

The judgment is affirmed.

In this opinion the other judges concurred.

       The trial court granted the petitioner’s request for certification of the questions involved in this decision in accord with General Statutes § 52-470 (b).

       The petitioner claims ineffective assistance of counsel in violation of the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution.

       Because the first step of the Cuyler analysis requires that an actual conflict of interest be found, we need not review this claim further in light of our conclusion that the habeas court properly found that there was no conflict of interest between the petitioner and Avcollie.

       The court found “[a]s a matter of fact, the interest of Avcollie and that of the petitioner at all times did not conflict or diverge but rather they converged in that each wanted to obtain a not guilty verdict.”

       The court stated that “[i]n this case there was no evidence presented that any of the jurors sitting on the petitioner’s case harbored any hostility toward Attorney Avcollie that would prevent such juror from judging the case fairly and impartially.” The court applied the actual bias test of State v. Marra, 195 Conn. 421, 433, 489 A.2d 350 (1985). Marra required a showing of actual bias where the court denied two challenges for cause after a complete voir dire. We agree that here, without having conducted a line of questioning during individual voir dire to ferret out potential bias, it is impossible now to prove actual bias.

       In all but one instance the habeas court in its memorandum of decision misstated Justice Marshall’s definition of a conflict of interest as follows: “There is an actual, relevant conflict of interests if, during the course of the representation, the defendants’ interests do diverge with respect to a material factual or legal issue or to a cause of action.” (Emphasis added.) In Justice Marshall’s definition, as found in Cuyler v. Sullivan, 446 U.S. 335, 356 n.3,100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980), the italicized phrase reads “or to a course of action."


author: Cretella, J.

text:
    Elsie L. Swensson et al. v. Planning and Zoning Commission of the Town of Manchester et al.
    (8485)
    O’Connell, Cretella and Landau, Js.'
    Argued May 2
    decision released August 28, 1990

      David A. Golas, for the appellants (plaintiffs).

      JoelE. Janenda, with whom was Maureen A. Chmielecki, town attorney, for the appellees (defendants).
   Cretella, J.

This appeal was taken by two abutting property owners from the judgment of the trial court affirming the decision of the defendant commission granting a subdivision application of the defendant J. Stewart (Stuart) Johnston.

The several claims raised by the plaintiffs fall into three categories: (1) whether the commission was required to hold a public hearing on the application; (2) whether the trial court should have allowed the plaintiffs to present evidence in addition to that required to establish aggrievement; and (3) whether the trial court improperly permitted the commission to add additional transcripts to the record after completion of oral argument before the court. We affirm the judgment of the trial court.

Some background data about this case will be helpful. On June 2 and 5,1987, Johnston applied to the commission for a subdivision of a certain parcel of land. The plaintiffs Elsie L. and Barbara L. Swensson, who own land abutting the proposed subdivision, sent letters to the commission through their attorney, David Golas, expressing concern and requesting a public hearing on Johnston’s application. In their correspondence, the plaintiffs claimed that Johnston’s application constituted a resubdivision and that a public hearing was therefore mandatory. Other than a bare assertion that the application involved a resubdivision, the plaintiffs submitted no specific data or facts to establish that the application met the definition of a resubdivision under General Statutes § 8-18. The plaintiffs further stated that they were concerned that the subdivision would aggravate a traffic hazard, endanger underground water supplies and cause runoff onto their property.

At its business meeting on July 6,1987, the commission considered whether to hold a public hearing on the application. The minutes of that meeting provide, in part, that the commission’s director, Mark Pellegrini, “reviewed for the commission the two lot subdivision proposed by Johnston, explained the staff’s previous conversations with members of the Swensson family and stated that the staff was carefully reviewing the subdivision for the concerns raised by the Swenssons. Pellegrini said that, on the basis of the information the staff had, this did not constitute a resubdivision. It was the consensus of the planning commission that a public hearing would not be required and was not necessary on this matter and advised the planning director to relay that decision to Attorney Golas.” Thereafter, on July 13, 1987, Pellegrini sent a letter to Golas, informing him that no public hearing would be held on the application. On July 20,1987, during another business meeting, the commission again discussed the question of whether a public hearing was required. At that meeting, it was determined that the parcel involved had not been part of any prior approved subdivision and the commission once more determined that no public hearing was necessary. It thereafter granted Johnston’s application.

The plaintiffs then took an appeal to the trial court. At trial, the plaintiffs attempted to introduce evidence, not presented to the commission, relating to the traffic, water supply and runoff problems that had been mentioned in their letters to the commission. They also sought to introduce evidence that the commission had earlier denied a similar application regarding a parcel directly across the street from the applicant’s property and sought to introduce a map and a deed relating thereto. The trial court excluded all of this evidence, stating that it was limited to reviewing the record and evidence that was before the commission. The court did take evidence to establish that the plaintiffs were abutting landowners and had statutory standing to prosecute their appeal pursuant to the provisions of General Statutes § 8-28.

During oral argument on March 14,1989, the court gave an indication that one of the main issues relating to this appeal was the question of whether the application was for a subdivision or a resubdivision and what consideration the commission had given to that question.

Several weeks after the court had heard closing arguments, the commission discovered that there were transcripts of the business meetings in which Johnston’s application had been discussed. On March 22,1989, the commission filed a motion to complete the record, requesting that the transcripts of the business meetings be included in the trial court record. After a hearing on that motion, and over the objection of the plaintiffs, the court decided initially to place the transcripts under seal and eventually granted the motion permitting the transcripts to be made a part of the record.

I

The plaintiffs claim that the commission was required to hold a public hearing on Johnston’s application. General Statutes § 8-26 provides that the commission “may-hold a public hearing regarding any subdivision proposal if in its judgment the specific circumstances require such action.” The commission was within its statutory authority to determine that no public hearing was necessary. Forest Construction v. Zoning & Planning Commission, 155 Conn. 669, 674, 236 A.2d 917 (1967).

The plaintiffs’ argument that the commission was required to hold a public hearing to determine whether the application was for a subdivision or a resubdivision is without merit.

II

The plaintiffs claim that the trial court should have considered additional evidence other than that before the commission and that required to establish aggrievement.

The record reveals that the commission took under consideration all of those concerns presented by the plaintiffs and in fact invited them to provide any further information or data relative to those concerns. Notwithstanding such request, the plaintiffs chose to provide no additional data and relied upon their position that the application required a public hearing. Having determined from the evidence that it did admit, that the plaintiffs were abutting landowners and had standing to appeal pursuant to General Statutes § 8-28, the court was correct in excluding the additional evidence that the plaintiffs proposed to submit relating to traffic, underground water supply, water runoff and diminution of the value of their property since such evidence had not been previously presented to the commission. “An appeal from an administrative tribunal should ordinarily be determined upon the record of that tribunal, and only when that record fails to present the hearing in a manner sufficient for the determination of the merits of the appeal, or when some extraordinary reason requires it, should the court hear evidence.” Tarasovic v. Zoning Commission, 147 Conn. 65, 69, 157 A.2d 103 (1959). Whether to admit additional evidence is a matter within the sound discretion of the court. Id., 70. We find no abuse of discretion in the court’s exclusion of the plaintiffs additional evidence in light of the fact that the record before the court contained the minutes of the commission’s business meetings of July 6 and 20, 1987.

The plaintiffs claim that the court incorrectly ruled that General Statutes § 8-8 governed their appeal, particularly as that statute relates to the court taking additional evidence. The plaintiffs contend that § 8-28 provides the exclusive procedure for their appeal and, since that section does not make any reference to limiting additional evidence, the court should not have excluded such evidence.

This is an appeal from a combined planning and zoning commission and as such is subject to the provisions of § 8-8 as prescribed by General Statutes § 8-9. By contrast, § 8-28 governs appeals from a single planning commission. We find no merit to the plaintiffs’ contention that, because the court permitted additional transcripts to be filed as part of the record, it improperly refused to admit the additional evidence offered by the plaintiffs in accordance with § 8-8 (e).

It is well established that the function of the trial court on appeal is to review whether the agency record reflects that the action of the commission was reasonably supported by the evidence. If the subdivision application conforms to the regulations, the commission has no discretion but to approve it. Langer v. Planning & Zoning Commission, 163 Conn. 453, 460, 313 A.2d 44 (1972); George LaCava & Sons, Inc. v. Town Planning & Zoning Commission, 154 Conn. 309, 311, 225 A.2d 198 (1966).

Ill

Finally, the plaintiffs claim that the court improperly granted the commission’s motion to complete the record. By granting this motion, the trial court incorporated into the record stenographic transcripts of the business meetings of the commission on July 6 and 20, 1987.

When counsel for the plaintiffs objected to the commission transcripts being made a part of the record, counsel for the plaintiffs requested time to review the transcripts and to submit a supplemental brief concerning them. The court transcripts clearly indicate that the plaintiffs’ objection to the admission of the commission transcripts to the record was based entirely upon the argument that they constituted additional evidence. The stenographic transcripts were not additional evidence nor did they provide the court with any data or information that the commission had not considered. The stenographic transcripts simply report the action by the commission in researching its decision concerning the subdivision question. They support the minutes of the business meetings of the commission that were already part of the record. Nothing additional was added by way of these new transcripts.

The procedure utilized by the trial court in “sealing” the transcripts until the court determined whether they would be accepted was most unusual, but the plaintiff has cited no authority to show that this procedure was improper. It would appear that the court was attempting to prevent prejudicing its own decision by not examining the stenographic transcripts in advance of its decision to allow them into evidence. While such procedure might be understandable in a jury trial where prejudice might develop by permitting a jury to examine evidence that might eventually be excluded, such is not the case in matters that are heard by the court alone. The court had every right and, in fact, an obligation to examine the transcripts to determine whether they should be permitted to become a part of the zoning record. The minutes of the business meetings that were already a part of the record reveal that the commission had considered the question of subdivision versus resubdivision and had reached its conclusion that the application constituted a subdivision. The procedure of allowing these transcripts to become part of the zoning record without notifying counsel for the plaintiffs of such ruling, in advance of issuing its memorandum of decision, did not prejudice the plaintiffs.

The judgment is affirmed.

In this opinion the other judges concurred.

       Two different spellings of the defendant Johnston’s middle name appear in the commission’s return of record. The plaintiffs raised this fact as a claim on appeal to the trial court, but that court correctly rejected the claim.

       General Statutes § 8-18 in pertinent part provides that “ ‘resubdivision’ means a change in a map of an approved or recorded subdivision or resubdivision . . . .”

       We note that Public Acts 1989, No. 89-356, § 2 now provides that appeals from a single planning commission are now also processed pursuant to General Statutes § 8-8.

       General Statutes § 8-8 (e) provides: “The court, upon an appeal taken under subsection (a) of this section, shall review the proceedings of said board and shall allow any party to such appeal to introduce evidence in addition to the contents of the record of the case returned by said board if the record does not contain a complete transcript of the entire proceedings before said board, including all evidence presented to it, pursuant to section 8-7a, or if, upon the hearing upon such appeal, it appears to the court that additional testimony is necessary for the equitable disposition of the appeal. The court may take such evidence or appoint a referee or committee to take such evidence as it directs and report the same to the court, with his or its findings of facts and conclusions of law, which report shall constitute a part of the proceedings upon which the determination of the court shall be made.”