author: Dupont, C.P.J.

text:
    Wilma Dei Cas, Executrix (Estate of Mary B. Shaw), et al. v. Marie Mayfield et al.
    (2429)
    Dupont, C.P.J., Borden and Daly, Js.
    Argued October 5, 1984
    decision released January 1, 1985

      Sandra M. McLean, for the appellants (plaintiffs).

      Richard C. Stewart, for the appellee (named defendant).
   Dupont, C.P.J.

This appeal arises out of a dispute over the construction of the will of William Shaw, the father of both the plaintiff and the named defendant. The issue to be decided is whether the language of the will gave the wife of the testator a life estate or a fee simple absolute estate in certain realty. The trial court concluded, in its granting of the defendant’s motion for summary judgment, that the widow was devised a life estate.

William Shaw executed a will in 1938 and died in 1944. In 1938, his daughters, who are parties in the present action, were minors. His wife, Mary Shaw, their mother, died in 1981, having executed a will in 1971. Mary Shaw’s will attempted to dispose of the realty in question by granting the plaintiff the right to purchase it at a bargain price. If Mary Shaw had but a life estate, the disposition to the plaintiff would be void. If, however, she acquired a fee simple absolute title by virtue of her husband’s will, the disposition would be valid.

The relevant testamentary language of William Shaw’s will is as follows: “Second: I give devise and bequeath all of the property of which I die seized be the same real, personal, or mixed, or where-so-ever situated, to my beloved wife, Mary B. Shaw, for her own proper use and benefit, forever. I do this knowing that my said wife will make proper provisions for any child or children then living.

“Third: At the death of my said wife, I direct that all of the property then remaining shall be divided among my children, then surviving, share and share alike.

“Fourth: In the event that my wife should die at or near the time of my decease and before my children are of legal age and able to care for themselves, I hereby appoint my brother, Richard Shaw, as their guardian. Should this happen I appoint said Richard Shaw as the executor of my last will and testament.”

It is the defendant’s contention that Mary Shaw acquired a life estate in the realty, with the power to consume it during her lifetime. She argues that although Mary Shaw could have sold or conveyed the property during her lifetime, she could not dispose of it by her will. It is the plaintiff’s claim that Mary Shaw was devised a fee simple, without limitation, and that she could validly dispose of it by her will.

The rule which prevails in most jurisdictions is that if real estate is devised in language which is sufficient to establish a fee, a secondary gift of so much of the realty as is not disposed of by the first taker during his or her life is wholly void. Annot., 17 A.L.R.2d 7, 14-16. The general rule is followed in Connecticut and is premised on the proposition that a gift in fee exhausts the entire packet of rights incident to absolute ownership, making it impossible for a remainder to exist. Trustees of Methodist Church v. Harris, 62 Conn. 93, 25 A. 456 (1892); McKenzie’s Appeal from Probate, 41 Conn. 607, 609 (1874).

Although the principle is often stated, its application has produced varying decisional results, depending upon whether the language of the particular will is deemed sufficient to establish a fee, and whether subsequent language in the will expresses an intent in unambiguous language to reduce the fee. Merchants Bank & Trust Co. v. New Canaan Historical Society, 133 Conn. 706, 715, 54 A.2d 696 (1947). The different outcome of each case lies in how courts characterize the gift to the first taker. The primary beneficiary may be deemed to have received a life estate, a life estate with the power to consume the gift by sale or conveyance during life, a fee determinable upon the happening of a certain contingency, a fee subject to defeasance, or a fee simple absolute. All of these gradations of interest have been recognized by Connecticut courts. Rosa v. Palmer, 177 Conn. 10, 14 n.2, 411 A.2d 12 (1979); Connecticut Bank & Trust Co. v. Lyman, 148 Conn. 273, 170 A.2d 130 (1961); Pond v. Porter, 141 Conn. 56, 65, 104 A.2d 228, cert. denied, 348 U.S. 825, 75 S. Ct. 39, 99 L. Ed. 650 (1954); Merchants Bank & Trust Co. v. New Canaan Historical Society, supra; Burley v. Maguire, 127 Conn. 242, 16 A.2d 358 (1940); State v. Smith, 52 Conn. 557 (1885); McKenzie’s Appeal from Probate, supra.

The characterization of the gift depends upon the particular phraseology of the will to be construed. It seldom happens that the identical testamentary words recur in the decided cases, making precedent inconclusive. The particular intent of a testator found by a court in one case is rarely the rock upon which intent in another case is founded.

An analysis of the testamentary language begins with a determination of whether the gift to the primary taker is unambiguous in its grant of a fee simple absolute. In the present case, the second article of the will uses the words “give devise and bequeath” and, “for her own proper use and benefit, forever.” It does not use the words, “heirs and assigns,” and states that the gift is made “knowing that my said wife will make proper provisions for any child or children . . . .’’The defendant concedes that this language, when read in conjunction with the third article, gave Mary Shaw total dominion over the realty during her lifetime, with all of the incidents of ownership except the right of testamentary disposition. She further concedes that the language relating to the testator’s expectation that his wife will provide for their children is precatory.

The question is whether the lack of the words, “heirs and assigns,” makes it less than clear that a fee simple absolute arose through the use of the language in the second article. Had those words been used, a very clear expression of a fee simple absolute would have resulted. Trustees of Methodist Church v. Harris, supra. Absent these words, which are customarily used to describe an absolute estate, the language found elsewhere in the will should be examined in order to divine the testator’s intent. Burley v. Maguire, supra. The omission of such language does not necessarily lead to the conclusion that there has not been an absolute gift but it is one factor to be considered in a determination of what interest was given, along with other factors such as the use of other relevant language in the will. Pond v. Porter, supra, 65; Cumming v. Pendleton, 112 Conn. 569, 153 A.175 (1931).

No Connecticut case involves language which duplicates the language of William Shaw’s will. The case of Hull v. Hull, 101 Conn. 481, 126 A. 699 (1924), however, is similar in certain respects. The Hull decision involved two articles of a will, one which used the words “give devise and bequeath [to my daughters] their heirs and assigns forever”; id., 482; and another which seemingly limited the gift by devising the same property to others “at the decease”; id.; of the primary beneficiaries. That court analyzed the latter language, noting that it left unclear whether the gift to others was to take effect only if the daughters died in the lifetime of the testatrix, or if their deaths would trigger the vesting of the gifts over, whether occurring either before or after the death of the testatrix. The court concluded that the estate in fee was followed by an inconsistent limitation, and that the second clause should only be applied in the event of the deaths of the primary devisees during the lifetime of the testatrix. Burnham v. Burnham, 101 Conn. 529, 532, 126 A. 704 (1924), comes to a similar conclusion. The Hull court also notes that the law favors the early vesting of estates. Hull v. Hull, supra, 489.

Although the language of William Shaw’s will does not involve a clause which contains an express and positive devise in fee, its article third does not contain a clear expression of intent to reduce the devise of the second article to a lesser estate. The language of the third article is “at the death of my said wife.” Such language is capable of two interpretations. The property “then remaining” at “the death of my said wife” could refer to the property remaining if the wife died in the lifetime of the testator, or to the property remaining if the wife died after the death of the grantor. There is, thus, no clear intent expressed in article third which would reduce the estate granted in article second to an estate less than a fee simple absolute. Article fourth of the will makes it clear that the testator contemplated that his wife might die before he did, and reinforces the interpretation of article third to mean that the children would take only if their mother did not survive the testator.

Since the estate given to the testator’s wife could only become subject to defeasance in the event that she predeceased the testator, her estate is found to be a fee simple absolute. The use of the word “forever” in connection with the devise to her in article second, coupled with the inconsistent limitation of article third lead to the conclusion that the gift to her was only determinable upon the happening of the contingency of her death in the lifetime of her husband. Since that contingency did not occur, Mary Shaw obtained a fee simple absolute in the realty, with the concommitant power to dispose of it by will.

There is error, the judgment for the defendant is set aside and the case is remanded with direction to render judgment for the plaintiffs.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. General Statutes § 51-199 (c).

       The plaintiff Wilma Dei Cas instituted suit on her own behalf as well as in her capacity as executrix of the estate of her mother. The state tax commissioner was also a defendant, but a judgment by default was rendered against him, and he is not involved in this appeal. Hereinafter, Wilma Dei Cas is referred to as the plaintiff and Marie Mayfield as the defendant.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Belle Perl, Executrix (Estate of Gustave G. Perl) v. Howard Case
    (2345)
    Dupont, C.P.J., Spallone and Daly, Js.
    Argued November 10, 1984
    decision released January 1, 1985

      Mark S. Shipman, with whom, on the brief, were Samuel J. Henderson and Paul A. Rufo, for the appellant-appellee (defendant).

      Edward S. Hyman, with whom, on the brief, was Donald J. Cantor, for the appellee-appellant (plaintiff).
   Per Curiam.

The present action was brought to collect a sum due and owing pursuant to a promissory note executed by the defendant in conjunction with the purchase of an accounting practice. The matter was tried to a trial referee and judgment was rendered in favor of the plaintiff. The defendant appealed therefrom and, thereafter, the plaintiff cross appealed.

The defendant claims that the trial referee erred (1) in the construction of the agreement between the parties, (2) in requiring the defendant to prove his special defense of oral modification by clear and satisfactory proof, (3) in drawing an inference adverse to the defendant because of his failure to produce a certain witness, (4) in finding that certain payments made by the defendant to the plaintiffs decedent were consulting fees rather than payments towards the balance due on the note, and (5) in awarding interest and attorney’s fees. The plaintiff cross appealed claiming the trial referee erred in computing the interest.

The first claimed error of the defendant is that the trial court erred in construing the parties’ agreement. Certain facts are relevant to this issue. The plaintiff’s decedent sold his accounting practice to the defendant, which was evidenced by a purchase agreement. Both parties were represented by counsel. The agreement and the promissory note signed by the defendant both provided for a ten year payment schedule whereby the purchasers would buy out the plaintiffs decedent. The amount of the payment fluctuated depending on the fees generated from the seller’s client accounts in that year. The promissory note for the principal sum of $133,715 was noninterest bearing and nonnegotiable. The amount of the payments due for each remaining year after November 15,1976, according to the promissory note, would be the sum paid for that year until the promissory note was paid, or until, under the terms of the note, the last payment was to be made at which time any unpaid principal would be due. The purchase agreement provided for a different freeze date, September 30,1975. The trial referee, noting the conflict, took evidence as to the intention of the parties on this issue, and concluded that the date provided in the promissory note was a scrivener’s error.

The defendant argues that the evidence does not support the trial court’s conclusion. Instead, he claims that the evidence revealed that the plaintiff’s decedent and the defendant decided not to freeze the payment but to continue to have the payment fluctuate from year to year.

Absent definitive contract language the intent of the parties concerning the payment schedule is an inference of fact and the trial referee’s conclusion must stand unless he could not reasonably conclude as he did. Bead Chain Mfg. Co. v. Saxton Products, Inc., 183 Conn. 266, 275, 439 A.2d 314 (1981); Hydro-Hercules Corporations. Gary Excavating, Inc., 166 Conn. 647, 652-53, 353 A.2d 714 (1974). The defendant testified that he and the plaintiff’s decedent understood the freeze date in the agreement was correct and the date provided in the promissory note was a mistake. The trial court could reasonably conclude as it did.

The trial referee, relying on the rule reiterated in Yantz v. Dyer, 120 Conn. 600, 602-603, 181 A. 717 (1935), required the defendant to prove his special defense of oral modification by clear and satisfactory proof. In that case, it was held that claims for services rendered to a decedent made after his death must be established by clear and satisfactory proof. The defendant argues that this rule is inapplicable to the present action because the claim advanced by the defendant does not involve compensation for services rendered to the plaintiff. The holding of Yantz is not limited exclusively to claims for compensation for services advanced against a decedent’s estate.

“The reason for [the] rule is that the living claimant is in a position of great advantage because of the death of the other party to the transaction and some check must be provided against the possibility of imposition and fraud.” Graybill v. Plant, 138 Conn. 397, 400, 85 A.2d 238 (1951). The policy behind the rule encompasses situations such as the one presently before the court. The trial referee did not err in requiring the defendant to establish his special defense of oral modification by clear and satisfactory proof.

We next consider the defendant’s claim that the trial court erred in drawing an inference adverse to the defendant because of his failure to produce Joseph DeLuca as a witness. The following facts are relevant to this claim. The defendant testified that DeLuca, a partner in the accounting firm at the inception of the agreement, was aware of the oral modification between the plaintiffs decedent and the defendant because the plaintiffs decedent had informed him of the modification. The defendant admitted the witness was available. The missing witness was, like the defendant, a comaker on the promissory note and a purchaser of the accounting practice, but he was not a defendant in this action.

The defendant argues that the witness was not one he would naturally produce as the witness had no peculiar or superior information and therefore the trial referee erred in applying the Secondino or missing witness rule. See Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960). Whether an absent witness has superior or peculiar information and whether an adverse inference can therefore be drawn is a question of fact Nichols v. Coppola Motors, Inc., 178 Conn. 335, 342-43, 422 A.2d 260 (1979); Grabowski v. Fruehauf Trailer Corporation, 2 Conn. App. 167, 172, 477 A.2d 685 (1984). An appellate court reviews the court’s factual findings to determine whether they are clearly erroneous. McGaffin v. Roberts, 193 Conn. 393, 409-10, 479 A.2d 176 (1984). The trial referee was not clearly in error in drawing an adverse inference.

The defendant next claims the trial referee erred in concluding that the $4800 paid to the plaintiff’s decedent in sixteen payments of $300 each were not payments towards the balance due on the promissory note. The evidence elicited at trial on this issue is in conflict. The trier, not the appellate court, weighs the evidence and decides its probative force. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cole, 189 Conn. 518, 524-25, 457 A.2d 656 (1983). The trial court’s fact finding function will not be disturbed upon appellate review where there is evidence to support the fact found.

The defendant claims the trial referee erred in awarding attorney’s fees to the plaintiff. The defendant advances the novel argument that the scrivener’s error in the promissory note as to the freeze date vitiates the promissory note. The argument is devoid of any merit.

The final claim of error advanced by the defendant concerns the trial referee’s award of interest to the plaintiff. He argues that where there is a bona fide dispute as to the amount owed, no interest can be awarded. The defendant conceded that a sum was due and owing the plaintiff and only disputed how that sum was to be computed.

Whether statutory interest is to be awarded as an element of damages is an equitable determination lying within the discretion of the trial court. State v. Stengel, 192 Conn. 484, 487, 472 A.2d 350 (1984). The trial referee’s decision to award interest is subject to reversal only upon a showing of an abuse of discretion. Vernon Foodliner, Inc. v. Central Mutual Ins. Co., 1 Conn. App. 595, 600, 474 A.2d 468 (1984). Where, as here, it is undisputed that some sum was due and owing and nothing in the record indicates that there was an abuse of discretion, it was not error to award interest.

The plaintiff claims on her cross appeal that the trial referee erred in calculating the interest to be awarded to the plaintiff. Although the trial referee awarded interest from November 15,1975, the plaintiff concedes that the first delinquent payment was not due until November 15, 1976. Notwithstanding the fact, which the plaintiff admits, that interest was awarded for an extra year, the plaintiff argues she was entitled to a larger award. That claim is grounded on the plaintiffs filing of an offer of judgment in the present action pursuant to General Statutes § 52-192a, which provides for a higher rate of interest than that provided in General Statutes § 37-3a. The trial referee rendered judgment in an amount exceeding that offer of judgment. Our Supreme Court has held that General Statutes § 52-192a applied to recoveries in court cases as well as jury cases. Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 301, 472 A.2d 316 (1984).

The trial referee’s memorandum of decision does not detail how the specific amount of interest was calculated and, therefore, it is impossible to review whether the amount awarded as interest was proper.

There is no error on the defendant’s appeal. There is error on the plaintiff’s cross appeal, the judgment is set aside as to the award of interest and the case is remanded for further proceedings to determine the amount of interest to be awarded.

       This appeal, originally filed in the Supreme Court, was transferred to this Court. General Statutes § 51-199 (c).

       According to the purchase agreement, Joseph DeLuca was also a purchaser of the accounting practice.

       The defendant cites General Statutes § 52-172 which provides, in relevant part that “the entries, memoranda and declarations of the deceased relevant to the matter in issue, may be received as evidence.” Apparently, the defendant is arguing that the statute provides the only avenue open to the plaintiff to rebut the defendant’s testimony. The legislature enacted the predecessor of General Statutes § 52-172 in 1850. Starzec v. Kida, 183 Conn. 41, 45-46 n.4, 438 A.2d 1157 (1981). The holding in Yantz v. Dyer, 120 Conn. 600, 181 A. 717 (1935), postdates the statute.

       General Statutes § 37-3a codified the common law of this state that the trial court could in appropriate circumstances award interest as an element of damages. The promissory note in question is not a negotiable instrument and therefore does not fall within the ambit of General Statutes § 42a-3-122 (4) (a) and the defendant cannot avail himself of the exception provided in the statute.

       The text of General Statutes (Rev. to 1981) § 52-192a, in effect at the date of judgment, states in pertinent part as follows: “(a) After commencement of any civil action based upon contract or for the recovery of money only, the plaintiff may before trial file with the clerk of the court a written ‘offer of judgment’ signed by him or his attorney, directed to the defendant or his attorney, offering to settle the claim underlying such action and to stipulate to a judgment for a sum certain. The plaintiff shall give notice of such offer of settlement to the defendant’s attorney, or if the defendant is not represented by an attorney, to the defendant himself. Within thirty days afer being notified of the filing of such ‘offer of judgment,’ the defendant or his attorney may file with the clerk of the court a written ‘acceptance of offer of judgment’ agreeing to a stipulation for judgment as contained in plaintiffs ‘offer of judgment.’ Upon such filing, the clerk shall enter judgment forthwith on the stipulation. If such ‘offer of judgment’ is not accepted within thirty days, such ‘offer of judgment’ shall be considered rejected and not subject to acceptance unless refiled. Following such rejection of any ‘offer of judgment,’ the plaintiff may file a new ‘offer of judgment’ and may continue to do so up to the time of trial. All such ‘offers of judgment’ and any ‘acceptance of offer of judgment’ shall be included by the clerk in the record of the case.
      “(b) After trial the court shall examine the record to determine whether the plaintiff made an ‘offer of judgment’ which the defendant failed to accept. If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain stated in his ‘offer of judgment,’ the court shall add to the verdict twelve per cent annual interest on the amount contained in such offer, computed from the date it was filed, and may award reasonable attorney’s fees in an amount not to exceed three hundred fifty dollars, and shall render judgment accordingly. For purposes of this computation, the largest ‘offer of judgment’ which was equal to or less than the verdict shall be used. Nothing in this section shall be interpreted to abrogate the contractual rights of any party concerning the recovery of attorney’s fees in accordance with the provisions of any written contract between the parties to the action.”

       The trial court’s memorandum of decision provides for interest of $14,891.51 for the period November 15, 1975, to February 1, 1982, and thereafter at the statutory rate, whereas the judgment states no particular amount, but provides that interest will run at the statutory rate from November 15, 1975 until paid.


author: Hull, J.

text:
    Echo Four v. George W. Hill et al.
    (2607)
    Dupont, C.P.J., Hull and Borden, Js.
    Argued November 6, 1984
    decision released January 8, 1985

      James R. Fogarty, with whom, on the brief, was Andrew P. Nemiroff, for the appellants (defendants).

      Austin K. Wolf, with whom was Stewart I. Edelstein, for the appellee (plaintiff).
   Hull, J.

The defendants, George W. Hill, the building and zoning inspector for the town of Darien, the planning and zoning commission, the zoning board of appeals, and the town itself, appeal from the trial court’s judgment of mandamus ordering Hill to issue a certificate of occupancy permitting Pitney Bowes Credit Corporation (PBCC) to occupy the plaintiff’s premises in Darien under a lease, and also declaring certain sections of the town’s zoning regulations invalid.

There is no dispute about the underlying facts. On April 1,1982, the plaintiff, Echo Four, a partnership, applied to Hill for a building permit to construct an addition or alteration to an existing structure owned by it in a central business district (CBD) zone. Hill denied the plaintiffs application because he believed that the proposed use was for “Administrative and Executive Offices,” which are prohibited in a CBD zone by § 220.49 of the Darien zoning regulations, rather than for “Business and Professional Offices,” which are permitted in a CBD zone by § 220.50 of the regulations.

The plaintiff appealed Hill’s denial to the zoning board of appeals. Alternatively, the plaintiff requested a variance. On July 13,1982, the board denied the plaintiff’s requests for relief and on July 26,1982, the plaintiff appealed to the Superior Court. That appeal is still pending in that court, and is not the subject of the present appeal in this court.

On May 6, 1982, the plaintiff wrote to Hill requesting the issuance of a building permit pending its appeal to the Superior Court, based on the understanding that said permit would be issued for a “section 220.50 use” (i.e., a Business and Professional Office) and that “no certificate of occupancy will be issued if the use is found to come under Section 220.49 or unless further action of the Zoning Board of Appeals or the Planning and Zoning Commission permits such use.” On May 26, 1982, the plaintiff sent Hill a detailed letter describing the use of the property by the proposed tenant, PBCC. On June 15,1982, Hill issued a building permit which specified that there was to be “no occupancy.”

On October 29,1982, the plaintiff sent to Hill a certificate of substantial completion together with a letter requesting a certificate of occupancy. Despite the fact that Hill found the improvements completed in accordance with the building permit application, Hill refused to issue the plaintiff a certificate of occupancy within ten days, as is required by § 521 of the zoning regulations. Instead, Hill required, prior to the issuance of a certificate, that the plaintiff submit a “sworn affidavit that Pitney Bowes Credit Corporation will not be the tenant, nor will any other use be allowed that does not conform to 220.50 of the Darien Zoning Regulations and to the approval granted by the Darien Planning and Zoning Commission.” On December 16,1982, the plaintiff commenced a mandamus action against Hill in two counts to compel him to issue a certificate of occupancy. Thereafter, the plaintiff filed an amended complaint adding a third count and citing in the additional defendants. The plaintiffs complaint, as amended, sought, in the first count, a writ of mandamus directing Hill to “issue a Certificate of Occupancy for the subject premises permitting occupancy by Pitney Bowes Credit Corporation.” The third count sought “a judgment declaring the invalidity of Sections 220.49 and 220.50 of the Darien Zoning Regulations and the schedule of business zone uses for a Central Business District zone in said regulations, which permits ‘business and professional’ offices but excludes ‘administrative and executive’ offices.” No notice concerning the declaratory judgment sought was given to anyone other than the named defendants.

On February 15, 1983, PBCC terminated its lease with the plaintiff because of the lack of a certificate of occupancy.

In declaring §§ 220.49 and 220.50 of the Darien zoning regulations invalid and issuing a judgment of mandamus, the court concluded (1) that § 220.50 purports to zone by identity of users and is therefore not authorized by the zoning enabling statute, (2) that § 220.50 is ambiguous and (3) that § 220.50 cannot be practically enforced.

The trial court specifically ordered “[t]hat George W. Hill immediately issue a certificate of occupancy for the subject premises permitting occupancy by Pitney Bowes Credit Corporation.” It rendered judgment declaring further “that §§ 220.49 and 220.50 of the Darien zoning regulations and the Schedule of Business Zone Uses for a Central Business District (CBD) zone in said regulations, which permits ‘business and professional’ offices but excludes ‘administrative and executive’ offices, are invalid” in general and specifically “as applied to prohibit occupancy of the subject premises by Pitney Bowes Credit Corporation . . . .”

The defendants claim seven grounds of appeal. The first claim is that the plaintiff did not comply with the notice requirements of Practice Book § 390 (d) and that, therefore, the trial court lacked jurisdiction to render a declaratory judgment. The second claim is that mandamus is not an appropriate remedy because issuance of the certificate of occupancy was not a ministerial duty and because the plaintiff had an adequate remedy at law. Because we conclude that the court lacked jurisdiction to render the declaratory judgment and that the mandamus count is inextricably intertwined with the declaratory judgment count, we do not consider the remaining grounds of appeal including the validity of §§ 220.49 and 220.50 of the zoning regulations.

“An action for declaratory judgment is a special proceeding under General Statutes § 52-29, implemented by Practice Book §§ 389 through 391.” Russo v. Watertown, 184 Conn. 30, 33, 441 A.2d 56 (1981). Practice Book § 390 (d) provides that “[t]he court will not render declaratory judgments upon the complaint of any person: . . . (d) unless all persons having an interest in the subject matter of the complaint are parties to the action or have reasonable notice thereof.” Strict adherence to the notice requirements of § 390 (d) is required. Russo v. Watertown, supra; Hopkins v. Pac, 176 Conn. 318, 319, 407 A.2d 979 (1978); Cavalli v. McMahon, 174 Conn. 212, 215, 384 A.2d 374 (1978). “A failure to comply with § [390 (d)] is a jurisdictional defect and, as such, can be raised even on appeal by the court itself.” Russo v. Watertown, supra, quoting Manley v. Pfeiffer, 176 Conn. 540, 545, 409 A.2d 1009 (1979).

“Section 390 (d) is not merely a procedural regulation, ‘[i]t is in recognition and implementation of the basic principle that due process of law requires that the rights of no man shall be judicially determined without affording him a day in court and an opportunity to be heard.’ ” Russo v. Watertown, supra, 34, quoting Benz v. Walker, 154 Conn. 74, 77, 221 A.2d 841 (1966).

The requirement of notice to interested parties is based upon practical considerations of fundamental fairness. In National Transportation Co. v. Toquet, 123 Conn. 468, 196 A. 344 (1937), the court stated: “ ‘To hold the regulations invalid would necessarily create confusion in the town, injure property interests which had, presumptively at least, conformed to the then existing law, and disturb and impair past recall police regulations of service and value to this community.’ ” Id., 477, quoting Coombs v. Larson, 112 Conn. 236, 246, 152 A. 297 (1930). In Toquet, the plaintiff sought a declaratory judgment invalidating the town’s zoning regulations regarding change of zones. The court held that making the municipality a party was insufficient to give notice to other property owners not named in the action but who were within the zone which was the subject of the dispute. “Under our rule all such persons even though their presence is not necessary to a decision of the issues between the parties of record are required either to be made parties or to have reasonable notice of the action. ... In the action before us, property owners in the area affected other than the plaintiff were not made parties to the action nor was any notice of its pendency given them. The trial court was not in error in the conclusion that under these circumstances the plaintiff was not entitled to a declaratory judgment.” National Transportation Co. v. Toquet, supra, 484-85; see Russo v. Watertown, supra, 35; Cavalli v. McMahon, supra, 216; Rosnick v. Zoning Commission, 172 Conn. 306, 307-308, 374 A.2d 245 (1977); Wenzel v. Danbury, 152 Conn. 675, 677, 211 A.2d 683 (1965); see also Bierman v. Planning & Zoning Commission, 185 Conn. 135, 140, 440 A.2d 882 (1981).

The trial court found that the defendants were “the only entities having an interest in the subject matter” and, as previously noted, made no order concerning notice to any other interested persons. Although the plaintiff sought to declare invalid §§ 220.49 and 220.50 of the zoning regulations as applied to the CBD, the judgment sought required notice not only to property owners in the CBD, but to others as well. Nine out of eleven nonresidential zoning districts in the town allow one or both of the uses in question here. Only governmental interests are represented by the defendants. In this case, no property owners were named as defendants or given notice of this action. Although it is obviously impractical to make all possible interested persons parties to the action, we conclude that the court lacked jurisdiction to render a declaratory judgment because of its failure to give reasonable notice to all interested parties.

The mandamus judgment is dependent upon the declaratory judgment and must fall with it. Without the judgment that the pertinent zoning regulations are invalid there is no basis for the issuance of the mandamus. The declaratory judgment, whether it concerns the invalidity of PBCC’s occupancy under the plaintiffs lease or the invalidity of the subject zoning regulations generally, is the indispensable basis for the mandamus judgment. “Mandamus is an extraordinary remedy. It is designed to enforce a plain positive duty. The writ will issue only when the person against whom it is directed is under a clear legal obligation to perform the act compelled and the party seeking the writ has a clear legal right to the performance.” West Hartford Taxpayers Assn., Inc. v. Streeter, 190 Conn. 736, 740, 462 A.2d 379 (1983); Cheshire Taxpayers’ Action Committee, Inc. v. Guilford, 193 Conn. 1, 5, 474 A.2d 97 (1984); see Monroe v. Middlebury Conservation Commission, 187 Conn. 476, 481, 447 A.2d 1 (1982); Milford Education Assn. v. Board of Education, 167 Conn. 513, 518, 356 A.2d 109 (1975). “Since mandamus neither gives nor defines rights which one does not already have, it cannot, and does not, act upon a doubtful and contested right. Boyko v. Weiss, 147 Conn. 183, 186, 158 A.2d 253 [1960].” Gerrity v. Bisciglia, 178 Conn. 235, 238-39, 423 A.2d 871 (1979); McAllister v. Nichols, 193 Conn. 168, 171-72, 474 A.2d 792 (1984).

It is abundantly clear that the plaintiff does not have a clear legal right to the issuance of the certificate of occupancy.

There is error, the judgment is set aside and the case is remanded with direction to render judgment for the defendants.

In this opinion the other judges concurred.

       The zoning regulations of the town of Darien provide for certain permitted uses in a CBD zone as follows:
      “220.49 Offices, Administrative and Executive: An office facility which is designed to serve a headquarters or central administration type function and is not designed or oriented to provide goods or services directly to the local public. Any such facility shall be occupied by not more than three separate businesses or firms and parking facilities shall be used on a non-transient basis.
      “220.50 Offices, Business and Professional: An office structure which supplies office space for businesses and professional persons who primarily provide goods and services directly to the local population. Such facility is generally subdivided into multiple units and typical tenants include doctors, lawyers, real estate agents, architects, engineers, and similar office uses. Requirements for pedestrian access and parking reflect the largely transient nature of the business activities.”

       The second count, claiming that Hill was estopped from denying the issuance of a certificate of occupancy, is not involved in this appeal.

       The cases cited to the contrary in the plaintiff’s brief are inapposite. The trial court in this case rendered judgment declaring the two sections invalid not only as to the subject premises but also in general. In Horwitz v. Waterford, 151 Conn. 320, 197 A.2d 636 (1964), and Corthouts v. Newington, 140 Conn. 284, 99 A.2d 112 (1953), the complaint in each case sought a declaratory judgment only as to the particular premises. In Lebanon v. Woods, 153 Conn. 182, 215 A.2d 112 (1965), the judgment sought was of general application but the issue of notice was not raised.


author: Daly, J.

text:
    State of Connecticut v. Keith Marshall
    (2984)
    Hull, Spallone and Daly, Js.
    Argued November 6, 1984
    decision released January 8, 1985

      Louis S. Avitabile, for the appellant (defendant).

      Marcia B. Smith, for the appellee (state).
   Daly, J.

The defendant was found guilty by a jury of larceny in the second degree in violation of General Statutes § 53a-123 (a) (3). The defendant has appealed from the judgment rendered on the verdict, and claims that the court erred in its charge to the jury concerning alibi and specific intent. The defendant further submits that the court erred in admitting into evidence a police photograph of him without deleting certain data contained thereon.

The jury could reasonably have found the following facts: On June 5,1983, around 4 p.m., the complainant was a passenger in the front seat of a motor vehicle which was stopped for a traffic light at the intersection of North Main, Cherry and North Elm Streets in Waterbury. The defendant reached into the vehicle and grabbed a necklace from the complainant’s neck. He ran in front of the vehicle and disappeared into the North Square Park area. On June 7, the driver of the motor vehicle in which the complainant was a passenger identified the defendant from photographs shown to her at the Waterbury police headquarters. On June 8, the complainant identified the defendant from an array of nine photographs.

The defendant first claims that the court erred in failing to instruct the jury in substantial compliance with the defendant’s request to charge on alibi. “Although an alibi is sometimes spoken of as a defense, it operates, in this state, to entitle an accused to an acquittal when he has so far proved the alibi that a reasonable doubt of his guilt is raised upon all the evidence.” State v. White, 155 Conn. 122, 123, 230 A.2d 18 (1967). An examination of the request to charge and the charge actually given indicates that it was virtually identical except for the addition of “[s]o if you believe their alibi, then you have to decide whether the state disproved the alibi beyond a reasonable doubt.” The defendant claims that the aforesaid sentence shifted the burden of proof concerning alibi from the state to the defendant.

It is the law of this state “ ‘that a refusal to charge in the exact words of a request will not constitute error if the requested charge is given in substance.’ ” State v. Cooper, 182 Conn. 207, 211, 438 A.2d 418 (1980). “Our general rule is that ‘[t]he appellate court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or an exception has been taken immediately after the charge is delivered by the party appealing.’ Practice Book §§ 854, 3063; see also Practice Book § 3060F (c) (1) and (2).” State v. Fullwood, 193 Conn. 238, 259, 476 A.2d 550 (1984). “The purpose of the rule is to alert the court to any claims of error while there is still an opportunity for correction in order to avoid the economic waste and increased court congestion caused by unnecessary retrials.” Id., quoting State v. Miller, 186 Conn. 654, 658, 443 A.2d 906 (1982). The defendant took no exception to the charge, but we will consider it as having been encompassed by the request to charge.

“To determine whether an error in a charge constitutes reversible error, the court must consider the whole charge. ... In considering the charge as a whole we eschew critical dissection . . . thereby not passing upon the instructions attached in ‘artificial isolation’ from the whole charge. . . . The charge must be considered from the standpoint of its effect on the jury in guiding them to a proper verdict.” State v. Reid, 193 Conn. 646, 660, 480 A.2d 463 (1984), quoting State v. Corchado, 188 Conn. 653, 660-61, 453 A.2d 427 (1983). After reviewing the charge, we conclude that the law on the defendant’s alibi was correctly stated in this case. “The charge read as a whole fairly presented the case to the jury and was correct on the law so that no injustice was done.” Frankovitch v. Burton, 185 Conn. 14, 25, 440 A.2d 254 (1981).

The disputed sentence taken into consideration with the rest of the charge did not shift the burden of proof on alibi to the defendant. The verdict indicates that the jury was satisfied with the victim’s account of what took place and her identification of the defendant as the culprit, and that they did not find the alibi evidence credible. These were questions for them to decide, and the evidence abundantly supported their conclusion. State v. White, supra, 124.

The defendant next claims that the court erred in charging the jury that they mandatorily had to infer specific intent if they found that the act of taking the necklace had occurred beyond a reasonable doubt. Larceny requires the existence of a felonious intent in the taker to deprive the owner of it permanently. State v. Marra, 174 Conn. 338, 342, 387 A.2d 550 (1978). “[I]ntention is a mental process, and of necessity it must be proved by the statement or acts of the person whose act is being scrutinized.” State v. Jacobowitz, 194 Conn. 408, 416, 480 A.2d 557 (1984), quoting State v. Mazzadra, 141 Conn. 731, 735, 109 A.2d 873 (1954). The acts involved here include the seizing of the necklace from the person of the victim and the fleeing from the scene with it.

The defendant, relying on Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979), claims that the trial court’s instructions violated his constitutional rights. “In the ordinary case we would refuse to review error claimed in jury instructions which, as here, was not brought to the attention of the trial court. Practice Book §§ 315, 3063. We have, however, previously held that because the type of error claimed falls within the ‘exceptional circumstances’ rule of State v. Evans, 165 Conn. 61, 69-70, 327 A.2d 576 (1973), we will reveiw it despite the lack of objection and exception below.” State v. Johnson, 185 Conn. 163, 167, 440 A.2d 858 (1981), aff’d, 460 U.S. 73, 103 S. Ct. 969, 74 L. Ed. 2d 823 (1983).

At the outset, it should be noted that the Sandstrom language, “every person is conclusively presumed to intend the natural and necessary consequences of his act,” is lacking in our case. The issue presented is whether the court’s instructions on intent as an element of the crime charged and on the inferences and presumptions which the state relied upon to prove intent could have been interpreted by the reasonable juror as either a conclusive or a burden-shifting presumption thereby undermining the jury’s responsibility as factfinders at trial to find the ultimate facts beyond a reasonable doubt on the basis of evidence adduced by the state. State v. Arroyo, 180 Conn. 171, 176, 429 A.2d 457 (1980). “If the court’s instructions could have been so interpreted, they deprived the defendant of due process of law and there is error. . . . If, on the other hand, the instructions made it clear that the jurors were permitted but not required to infer criminal intent from the defendant’s conduct, then the instructions do not violate the defendant’s fourteenth amendment guarantees.” (Citations omitted.) Id.

The challenged sentences of the charge, when considered within the context of the court’s charge on larceny, its prefatory instructions and circumstantial evidence, and the charge as a whole, could not be reasonably construed to require a conclusive presumption or a shifting of the burden of proof and did not deprive the defendant of his due process right to a fair trial. Furthermore, the defendant apparently did not contest the fact that the offense had been committed, only that he did not participate therein. We find no error in the charge.

The defendant’s final claim is that the court erred in permitting a mug shot of the defendant to be admitted into evidence without first eliminating therefrom data pertaining to a prior arrest. In determining whether the trial court has abused its discretion in admitting such evidence, our Supreme Court has held that such photographs are admissible if they are relevant and material and if their probative value outweighs their prejudicial tendency. State v. Peary, 176 Conn. 170, 175, 405 A.2d 626 (1978), cert. denied, 441 U.S. 966, 99 S. Ct. 2417, 60 L. Ed. 2d 1072 (1979). Although we must caution against the indiscriminate use of “mug shots” for identification, in light of the circumstances of this case (the defendant testified as to the prior arrest and the trial court instructed the jury to ignore such prior arrest), we cannot say that the trial court erred in admitting this evidence. See State v. Albin, 178 Conn. 549, 553, 424 A.2d 259 (1979).

There is no error.

In this opinion the other judges concurred.

       The defendant requested the following charge on alibi: “In this case the Defendant has raised what lawyers call a defense of alibi. The word alibi carries with it its ordinary meaning and you as laymen are probably already familiar with it. It is proof that at the time the crime in question was being committed at a particular place, the Defendant was elsewhere, and thus incapable of committing it. Alibi evidence is evidence which is inconsistent with the guilt of the accused. Alibi evidence which raises a reasonble doubt as to guilt entitles the Defendant to an acquittal. In the final analysis the State, in addition to its ordinary burden of proving the essential elements of its case beyond a reasonable doubt, has as well the burden of disproving the alibi evidence beyond a reasonable doubt. State v. White, 155 Conn. 122(230 A.2d 18] (1967), State v. Bill, 146 Conn. 693 (155 A.2d 752] (1959), 53a Conn. Gen. Stat. 12.”

       The pertinent part of the trial court’s instruction on alibi was as follows: “All right. Now, the public defender referred to the word ‘alibi’ in his summation to you. The word ‘alibi’ carries with it its ordinary meaning, and you as lay persons are probably already familiar with what it is. It is proof that at the time the crime in question was being committed at one particular place the defendant was elsewhere and thus could not possibly have committed the crime.
      “Alibi evidence is always evidence that is inconsistent with the guilt of the accused. It raises a reasonable doubt as to guilt and, therefore, entitles the defendant to an acquittal.
      “In the final analysis, the State in addition to its other burden of proving the essential elements of its case beyond a reasonable doubt has also the burden of disproving the alibi evidence beyond a reasonable doubt.
      “One of the important issues in this case—Well, to get back to that, the testimony—And I don’t mean to emphasize anything—the testimony as to when Mr. Marshall mentioned to his friends he was being accused, the testimony as to when the pictures were looked at—or the photo array, the testimony of the detective when he applied for the warrant or when he saw the defendant to tell him he was a suspect, et cetera.
      “Okay. So if you believe their alibi, then you have to decide whether the state disproved the alibi beyond a reasonable doubt.”

       The pertinent part of the court’s charge on intent was as follows: “Now, at most times you have to infer intent. It’s largely a matter of inference. In this case there isn’t the type of defense that said, I didn’t mean to do it. It was a mistake or something like that. There is a total denial, an alibi defense. . . . So if you find, in fact, that Professor Yarborough had a necklace or pendant taken, you have to find or make an inference that it was done intentionally. As I said, you also have to find that it was done with the intent of depriving her of her property . . . .”


author: Borden, J.

text:
    State of Connecticut v. Larson Jackson
    (3128)
    Dupont, C.P.J., Borden and Spallone, Js.
    Argued November 7, 1984
    decision released January 8, 1985

      Raymond B. Dunn, special public defender, with whom, on the brief, was Lucia B. Brooks, for the appellant (defendant).

      C. Robert Satti, Jr., assistant state’s attorney, with whom, on the brief, were David Newman, assistant state’s attorney, and Shaun Splan, law student intern, for the appellee (state).
   Borden, J.

The defendant was convicted of burglary in the third degree in violation of General Statutes § 53a-103 and of larceny in the sixth degree in violation of General Statutes § 53a-125b. This appeal raises two claims, neither of which has merit.

The defendant first argues that the trial court erred in ruling on his motion in limine which sought to preclude the state from using his seven prior convictions to impeach his credibility in the event he testified. These prior convictions were as follows: Burglary in the third degree, on February 4, 1976; burglary in the third degree, on June 29,1977; burglary in the third degree and larceny in the second degree, on September 1, 1978; robbery in the first degree, on February 27,1979; burglary in the third degree, on July 27,1979; and burglary in the third degree, on February 8, 1983. After jury selection but before the state began to present its evidence, the court ruled that the state would be permitted to use only four of the convictions, namely the convictions in 1978 for burglary in the third degree and larceny in the second degree, the conviction in 1979 for robbery in the first degree, and the conviction in 1979 for burglary in the third degree. The defendant took no exception. The trial court then revised its ruling to permit only the conviction in 1977 for burglary in the third degree, the conviction in 1979 for robbery in the first degree and the conviction in 1979 for burglary in the third degree. The defendant took an exception to this ruling. The next day, after the state had begun presenting its evidence, the court, sua sponte, further revised its ruling to permit only the conviction in 1979 for robbery in the first degree, the conviction in 1979 for burglary in the third degree and the conviction in 1983 for burglary in the third degree. The defendant took no exception to this ruling.

The defendant did not testify. The defendant’s counsel, in arguing the motion in limine, represented that he felt it necessary for the defendant to testify and that the purpose of the motion was to insulate him from undue prejudice in that event. The court agreed that, because of the extensiveness of the defendant’s record and the similarity of the prior convictions to the crimes charged in this case, use of the convictions would be prejudicial. It also properly noted, however, that the defendant’s record was not the fault of the state, and that the prejudicial effect of the convictions had to be weighed against their probative value. Before resting his case, the defendant testified in the absence of the jury that he declined to testify on the advice of his counsel. Although the defendant could have stated the reason for his decision more crisply, and although in advancing his motion he made no attempt to indicate to the court the nature of the evidence in the case, including what his testimony would be if he took the stand; State v. Binet, 192 Conn. 618, 624 n.4, 473 A.2d 1200 (1984); we assume arguendo that he made a sufficient showing of “the specific harm that will occur if the convictions are introduced”; State v. Braswell, 194 Conn. 297, 308, 476 A.2d 568 (1984); and that his failure to testify was motivated by the ruling of the court on his motion. State v. Iasevoli, 188 Conn. 325, 328, 449 A.2d 996 (1982).

The defendant’s failure to take an exception to the trial court’s final ruling is fatal to his claim on appeal. “An exception to [a] ruling [on the admission of evidence] must be taken in order to make it a ground of appeal.” Practice Book § 288. Evidentiary rulings ordinarily must be preserved for appellate review by an exception. State v. Hoffler, 174 Conn. 452, 461, 389 A.2d 1257 (1978). “The purpose of requiring an attorney to except is not merely formal. An exception serves the important function of alerting the trial court to error while there is time to correct it without ordering a retrial.” State v. Jones, 193 Conn. 70, 88, 475 A.2d 1087 (1984). The defendant does not claim, nor has he demonstrated, deprivation of a fundamental constitutional right which would permit appellate review in the absence of an exception. Cf. State v. Cook, 174 Conn. 73, 75-76, 381 A.2d 563 (1977).

The defendant claimed in oral argument in this court that his exception to the court’s second ruling sufficed as an exception to the court’s ultimate ruling because it was a “continuing exception.” This argument is without merit. Our practice does not countenance a continuing exception, at least in the absence of something specific in the record indicating that the court is permitting it in the interest of economy. This record is barren of any such indication. The ruling to which he did except was made on a different date and at a different stage of the proceedings from that which the court ultimately made. When the court made its ultimate ruling, “the defendant could then have reminded the court of his previous exception . . . and reiterated his exception if he found the court’s [ruling] insufficient” to protect his rights. State v. Jones, supra.

The defendant’s second claim is that the court erred in denying his motion for a mistrial, which was based on his assertion that one of the jurors, while using the telephone in a hallway during a break in the proceedings, saw him in handcuffs. The defendant was incarcerated in lieu of bond during the trial. He could not identify which juror saw him, but asserted that it was not one of the alternates. The court indicated that the defendant was not prejudiced, and that “the situation was rather innocuous.”

The defendant declined the court’s invitation, made after it denied his motion for a mistrial, to ask the jurors if any of them did in fact see him, but he accepted the court’s suggestion that a curative instruction be given in general terms as part of the charge to the jury. The defendant submitted such an instruction, which the court adopted.

A mistrial should be granted “only where it is apparent to the court that as a result of some occurrence during trial a party has been deprived of the opportunity for a fair trial.” State v. Ubaldi, 190 Conn. 559, 562, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983). “Because of the trial court’s broad discretion in passing on motions for mistrial”; State v. DeMatteo, 186 Conn. 696, 704, 443 A.2d 915 (1982); “its determination as to the fairness of the defendant’s trial must be afforded great weight.” State v. Ubaldi, supra, 563. Because of the uncertainty of whether a juror did see the defendant in handcuffs, the trial court’s assessment of the likely lack of prejudice, and the wholly adequate curative instruction, we find no abuse of discretion in the denial of the motion for a mistrial.

There is no error.

In this opinion the other judges concurred.

       The judgment of conviction was rendered on January 30, 1984. The defendant mistakenly appealed to the Supreme Court, which transferred the appeal to this court pursuant to Practice Book § 3076.

       Furthermore, a limited review of the ruling, undertaken in order to be sure that no injustice was done to this defendant, indicates that the court did not err. The prior convictions which it permitted, namely robbery and burglary, are associated with larceny, imply dishonesty and have, therefore, a direct bearing on credibility. State v. Carter, 189 Conn. 631, 643, 458 A.2d 379 (1983). The record also makes clear that the trial court scrupulously performed its weighing task and minimized the prejudice to the defendant by permitting only three of his seven prior convictions.

       The court charged as follows: “Now, the fact that any person accused of a crime may be in custody or may have been in custody before or during any criminal trial, has nothing to do with the question of guilt or innocence. The only reason for custody or confinement in any criminal case before or during a trial is that the accused person cannot meet the terms of his bail. It has nothing to do with guilt or innocence.”


text:
    State of Connecticut v. Robert Russo, Jr.
    (2693)
    Dupont, C.P.J., Hull and Spallone, Js.
    Argued November 11, 1984
    decision released January 8, 1985

      John J. Keefe, Jr., with whom, on the brief, was Hugh F. Keefe, for the appellant (defendant).

      Steven M. Sellers, deputy assistant state’s attorney, with whom, on the brief, were JohnM. Massameno and Jane Brandfon, assistant state’s attorneys, for the appellee (state).
   Hull, J.

The defendant, Robert Russo, Jr., appeals from his conviction, after a jury trial, of one count of misconduct with a motor vehicle pursuant to General Statutes § 53a-57. Russo claims error in two rulings of the trial court in which it refused to exclude certain evidence at the trial. First, he claims that the admission of a hospital report containing incriminating evidence violated his right of confrontation provided by the sixth amendment to the United States constitution, and, second, that the testimony of a police officer as to statements made by Russo violated his right to remain silent provided by the fifth amendment to the United States constitution. The court admitted both items of evidence over the defendant’s objection. We find no error.

There was testimony from which the court, in making its two evidentiary rulings, could have found the following: At approximately 12:45 a.m. on March 30, 1980, the defendant was involved in an automobile accident on Middletown Avenue in New Haven. The defendant was driving a Cadillac northbound when he collided with a Camaro which was traveling southbound. It had been raining on and off throughout the night and, at times, the rain was heavy.

The owner of the Camaro, Judy Burke, was a passenger in the car and received relatively minor injuries. The driver was a friend of Burke’s named Shelley Glick. She died as a result of the accident.

Emergency apparatus and personnel arrived in a matter of minutes. Glick was pronounced dead at the scene by a doctor. Although Burke was thrown through the windshield, she was not seriously injured. Thus, the defendant became the focus of the attention of the emergency personnel. A firefighter, an emergency medical technician, an advanced life support technician and a police officer, all of whom came into close contact with the defendant at the scene, were of the opinion that he was intoxicated. Three of these people smelled alcohol on the defendant’s breath or in the Cadillac or both. All of them believed that the defendant’s behavior suggested that he had been drinking.

Although the defendant appeared to be intoxicated at the scene of the accident, he was at all times conscious. He was groggy, but had no difficulty conversing with those attending him. His eyes were open and the technicians at the scene observed only superficial bleeding on his face and scalp. None of his injuries was ever life threatening.

When first approached by emergency personnel, the defendant was abusive and told them not to touch him because he was “all right.” He eventually agreed to treatment and answered questions asked of him. At one point he told a nurse at the scene that he felt “O.K.” A firefighter noticed cans in the Cadillac, but did not know what kind of cans they were. Upon being extricated from his car, the defendant was fitted with a cervical collar and was strapped to a spinal board. He was then transported to the Yale-New Haven Hospital.

The defendant had last been seen at about 6:30 p.m., March 29, at the Rose Garden, a bar and restaurant located in Hamden, Connecticut. The bartender had refused to serve the defendant because “he looked as if he should not be served a drink. . . . [HJe didn’t look right.” Having been refused, the defendant left in a large car, possibly a Cadillac.

After the defendant had been taken to the hospital, Sergeant Michael Sweeney, a New Haven police officer, examined the interior of the Cadillac with his flashlight and saw a half-empty bottle on the front passenger seat. It appeared to be a liquor bottle about the size of a “fifth.” It had a label on its side and had a broken seal on its cap.

Sweeney then proceeded to the hospital where, at approximately 2 a.m., he interviewed the defendant in a hospital treatment room. Sweeney, who was in uniform, identified himself to the defendant as a police officer and then read to the defendant all of the warnings required by Miranda v. Arizona, 384 U.S. 436, 479, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). After each right was read, the defendant was asked by Sweeney whether he understood that right. The defendant told Sweeney that he understood each right.

Although the defendant appeared to Sweeney to be intoxicated, he was conscious at all times, was talkative and kept trying to sit up on the hospital bed. The defendant was somewhat confused about time and Sweeney observed injuries to his teeth and tongue. He did speak to Sweeney, who was of the opinion that Russo understood what was being said to him. Sweeney questioned the defendant for approximately twenty-five minutes, whereupon he left the hospital.

Sweeney later returned and he and another police officer arrested the defendant. After executing a written promise to appear, Russo was discharged from the hospital at about 8:30 a.m. on March 30, or about seven hours after he had been admitted, and was taken home by his father.

I

The defendant’s first claim of error relates to the trial court’s admission of one page of a hospital report made in the emergency room of the Yale-New Haven Hospital after Russo arrived there. The doctor who had made the report was originally expected to testify for the state. On the third day of trial, however, the state’s attorney announced that the doctor, who was in Providence, Rhode Island, would be unable to attend the trial until the following week. The hospital report was admitted into evidence pursuant to General Statutes § 4-104, without an authenticating witness. While the defendant does not contest the admission of the report as an exception to the hearsay rule, he does argue that, in this case, his sixth amendment right to confront the witness against him was effectively denied by its admission.

The state responds that the trial court’s implied finding, that the defendant’s right of confrontation was not violated, is not clearly erroneous. We agree.

In State v. Cosgrove, 181 Conn. 562, 436 A.2d 33 (1980), the court stated that “[a]s the Supreme Court has noted, its holding in Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 13 L. Ed. 2d 923 [1965], that ‘the Sixth Amendment’s right of an accused to confront the witnesses against him is ... a fundamental right . . . made obligatory on the States by the Fourteenth Amendment’ forms merely the beginning of an inquiry into whether an extrajudicial statement introduced at a state criminal trial violates the confrontation clause. Dutton v. Evans, 400 U.S. 74, 79, 91 S. Ct. 210, 27 L. Ed. 2d 213 [1970] . . . .” State v. Cosgrove, supra, 570-71. The court noted that the Supreme Court “has been careful to establish that the constitutional right of confrontation does not require that hearsay evidence can at no time be admitted. E.g., Parker v. Randolph, 442 U.S. 62, 73, 99 S. Ct. 2132, 60 L. Ed. 2d 713 [1979] (plurality opinion); Dutton v. Evans, supra, 80; Pointer v. Texas, supra, 407. On the other hand, neither is a particular declaration to be determined not violative of the right of confrontation of a criminal defendant solely because state law provides for its admission as an exception to its evidentiary rules governing hearsay. E.g., California v. Green, 399 U.S. 149, 155-56, 90 S. Ct. 1930, 26 L. Ed. 2d 489 [1970].” State v. Cosgrove, supra, 571.

The test for determining whether evidence such as the hospital report should be admitted without affording the defendant the right to confront its author is that there are “indicia of reliability” which minimize the possibility of harm in placing the evidence before the jury. Dutton v. Evans, supra, 89. We conclude that the evidence in question is highly reliable. The purpose of the report was to provide assistance in the diagnosis and treatment of the defendant as a patient. It was in both the doctor’s and the defendant’s interest that it be totally accurate. An examination of the report shows a medical summary of brief facts about the defendant himself, background pertinent to his treatment, results of a physical examination and medical recommendations about the course of treatment. Although the report was made in the hurried atmosphere of an emergency room setting, it was made by trained professionals accustomed to working in such an atmosphere and in drafting reports such as this under similar circumstances.

The court in State v. Cosgrove, supra, also noted a second aspect to this issue: “[It has been] suggested that the Supreme Court decisions in Mancusi v. Stubbs, 408 U.S. 204, 92 S. Ct. 2308, 33 L. Ed. 2d 293 [1972]; Dutton v. Evans, [supra]; Barber v. Page, 390 U.S. 719, 88 S. Ct. 1318, 20 L. Ed. 2d 255 [1968]; and Pointer v. Texas, [supra], lead to the conclusion that the government bears the burden of producing extrajudicial declarants, or of demonstrating their genuine unavailability whenever the extrajudicial statements being offered at trial are crucial to the government’s case or devastating. United States v. Oates, [560 F.2d 45, 83 (2d Cir. 1977)].” State v. Cosgrove, supra, 580. The court then left its decision on that issue for another day, concluding that the evidence there in question was “not crucial . . . nor [was] it devastating.” Id., 581.

Assuming, arguendo, that demonstrating the declarant’s unavailability is a prerequisite to the admission of the hospital report in this case, we conclude that the state made a good faith effort to produce the doctor as a witness and demonstrated his genuine unavailability as soon as it was discovered.

We conclude that the trial court’s decision to admit the hospital report was not clearly erroneous.

II

The defendant’s second claim of error is that the trial court erred in admitting into evidence Sweeney’s testimony as to his conversation with Russo at the hospital. This claim, in two parts, goes to the issue of whether the defendant voluntarily, understanding^ and knowingly waived his constitutional right to remain silent. The first part concerns the general voluntariness of the defendant’s statement. The second part raises the question of whether, under Miranda v. Arizona, 384 U.S. 436, 479, 86 S. Ct. 1601, 16 L. Ed. 2d 671 (1966), and State v. Harris, 188 Conn. 574, 579-80, 452 A.2d 634 (1982), cert. denied, 460 U.S. 1089, 103 S. Ct. 1785, 76 L. Ed. 2d 354 (1983), the defendant voluntarily, knowingly and intelligently waived his right to remain silent.

The ultimate test of the admissibility of the defendant’s statements is their voluntariness. State v. Stankowski, 184 Conn. 121, 131, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981). “ ‘The issue of whether a confession is voluntary and admissible is, in the first instance, one of fact for determination by the trial court in the exercise of its legal discretion. State v. Devine, 149 Conn. 640, 652, 183 A.2d 612 [cert. denied sub nom. State v. Cooper, 371 U.S. 930, 83 S. Ct. 303, 9 L. Ed. 2d 237] (1962). That discretion must, however, be exercised in accordance with constitutional standards of due process.’ State v. Derrico, 181 Conn. 151, 163, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980).” (Citation omitted.) State v. Stankowski, supra, 131-32.

“The ultimate test remains .... ‘Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.’ ” State v. Stankowski, supra, 132, quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973); see Townsend, v. Sain, 372 U.S. 293, 307, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963); State v. Derrico, supra, 163.

We must view the totality of the circumstances surrounding a confession in order to determine whether it was voluntary or was obtained by coercion or improper inducement. Haynes v. Washington, 373 U.S. 503, 513-14, 83 S. Ct. 1336, 10 L. Ed. 2d 513 (1963). The factual inquiry into voluntariness focuses primarily on the conduct of law enforcement officials. See Mincey v. Arizona, 437 U.S. 385, 399-400, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978).

In this case, the questioning of the defendant occurred in a hospital examining room, not in an interrogation room at police headquarters. The interview itself was only twenty-five minutes long. Evidence indicated that the defendant was not under intensive care. Rather, he received only intermittent treatment, which continued during his questioning. Further, the defendant’s injuries were sufficiently minor to allow his release only seven hours after he was first admitted to the hospital. The defendant was not deprived of medical assistance as a result of the interview nor was he told that cooperation was a condition to receiving medical treatment. Under these circumstances, the defendant’s statements were not, in any respect, coerced.

The only serious issue of voluntariness raised by the defendant is as to his intoxication and physical injury at the time of questioning. While the defendant was allegedly intoxicated at the time of his questioning at the hospital, he was not intoxicated to the point of incoherence, which his statements amply reflect. The defendant’s injuries did not impair his ability to think to any significant extent. There was conflicting evidence as to whether the defendant was in pain from his injuries. Further, the defendant was able to question whether he was required to submit to a blood test and, when advised of his rights, refused to allow such a test.

The effect of a defendant’s claim that he was unable voluntarily to waive his rights because he had indulged in alcohol or drugs has been clearly stated in Connecticut: “ ‘[T]he use of drugs or the ingestion of alcoholic beverages does not in and of itself render a subsequent admission inadmissible.’ . . . It is one factor to be considered in determining the voluntariness of a statement.” (Citations omitted.) State v. Stankowski, supra, 134. The evidence presented to the trial court, including evidence of the conduct of the police and of the defendant’s mental and physical condition at the time of questioning, adequately supports the trial court’s conclusion that the defendant’s statements were voluntary. Those statements were the product of an essentially free and unconstrained choice by their maker. See id., 132.

The other aspect of the defendant’s second claim is that he did not adequately understand and waive his Miranda rights. Although the defendant did state that he had heard his rights and that he understood them, he did not specifically state that he waived them.

Where “the record discloses no verbal utterance by the defendant that he wanted to rely on his rights or waive them,” the Connecticut Supreme Court has held that “the state must demonstrate: (1) that the defendant understood his rights, and (2) that the defendant’s course of conduct indicated that he did, in fact, waive those rights.” (Emphasis in original.) State v. Wilson, 183 Conn. 280, 284-85, 439 A.2d 330 (1981); State v. Williams, 190 Conn. 104, 112, 459 A.2d 510 (1983); see Tague v. Louisiana, 444 U.S. 469, 470, 100 S. Ct. 652, 62 L. Ed. 2d 622 (1980). An appellate court must make an independent judgment as to whether a valid waiver of constitutional rights has been made, based on the totality of the circumstances. Beckwith v. United States, 425 U.S. 341, 348, 96 S. Ct. 1612, 48 L. Ed. 2d 1 (1976); United States v. Parr, 716 F.2d 796, 817-18 (11th Cir. 1983). Deference of a reviewing court to the trial court’s findings of fact is qualified, in this area, “by the necessity for a scrupulous examination of the record to ascertain whether such a factual finding is supported by substantial evidence.” State v. Pellegrino, 194 Conn. 279, 288-89, 480 A.2d 537 (1984); State v. Harris, supra, 580; State v. Frazier, 185 Conn. 211, 219, 440 A.2d 916 (1981), cert. denied, 458 U.S. 1112, 102 S. Ct. 3496, 73 L. Ed. 2d 1375 (1982).

In this case, the defendant was twenty-six years old. He exhibited no intellectual impediments to his ability to understand the Miranda warnings. His interrogation was not lengthy, he was not held incommunicado, nor was there any violence or threat thereof incident to his arrest or questioning. See State v. Harris, supra, 581-82. The defendant was at all times conscious and talkative. His responses to Sweeney’s queries were coherent and not merely monosyllabic. See State v. Lavorgna, 37 Conn. Sup. 767, 771, 437 A.2d 131 (1981). He stated specifically that he understood his rights. We also note that the same circumstances which lead us to conclude that the defendant’s statements were voluntary also support the conclusion here that he understood his rights.

The state must also demonstrate that the defendant’s course of conduct indicated that he did, in fact, waive his rights. State v. Williams, supra, 112. As noted above, the defendant declined to submit to a blood test after questioning his obligation to do so and asking Sweeney about his constitutional rights.

This evidence indicates that the defendant’s course of conduct demonstrated a waiver of his Miranda rights. The defendant was aware that he did have certain rights with regard to the blood test. He asked Sweeney what those rights were and, once informed of his rights, refused the test. It is only logical to conclude that when he was told by Sweeney of his right to remain silent his subsequent conversation with Sweeney evidenced an intelligent, knowing and voluntary waiver of that right. Cf. State v. Pellegrino, supra, 289; State v. Williams, supra, 112-113. We conclude that the defendant, who was careful to preserve his rights as to the blood test, was equally careful in regard to his right to remain silent.

The defendant’s actions present us with more than mere silence as to the waiver of his Miranda rights. See State v. Pellegrino, supra, 289; State v. Williams, supra, 112-13. We do not presume waiver because a confession was, in fact, obtained. State v. Wilson, supra, 286. Rather, this is a case where “waiver can be clearly inferred from the actions and words of the person interrogated.” North Carolina v. Butler, 441 U.S. 369, 373, 99 S. Ct. 1755, 60 L. Ed. 2d 286 (1979).

We, therefore, conclude that the trial court did not err in admitting the hospital report and Sweeney’s testimony as it did.

There is no error.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. General Statutes § 51-199 (c).

       General Statutes (Rev. to 1979) § 53a-57 (a) provides: “A person is guilty of misconduct with a motor vehicle when, with criminal negligence in the operation of a motor vehicle or in consequence of his intoxication while operating a motor vehicle, he causes the death of another person.”

       The defendant’s brief does not comply with Practice Book § 3060F for a number of reasons, not the least of which is that it fails to set out the substance of the court’s rulings. Nonetheless, both parties treat the rulings as if they were properly before us and so we treat them accordingly.

       The report involved is the front page of a two page Emergency Service Visit Record signed by a Doctor Kollmen which states, in part, under “History/Exam/Treatment”: “Says he has been drinking and taking Quaaludes (driver).”

       General Statutes § 4-104 provides a narrow exception to the hearsay rule for hospital records made in the ordinary course of business. There is no dispute as to the state’s compliance with this provision.

       It should also be noted that, although the defendant was not required to do so, he could have moved for a continuance of the trial until the following week when the state could produce its witness. Further, the defendant could have, pursuant to General Statutes § 54-82Í (c), subpoenaed the witness himself rather than relying on the state to do so.

       This issue was first raised by the defendant’s motion to suppress the statements in question. The trial court ordered that the motion be heard at the time of trial. The state does not contest that the defendant was in custody at the time in question. Officer Edward Woods testified that the defendant was in custody and was not able to leave if he was physically capable of doing so.

       The burden is on the state to prove, by a preponderance of the evidence, the voluntariness of the confession. Lego v. Twomey, 404 U.S. 477, 489, 92 S. Ct. 619, 30 L. Ed. 2d 618 (1972); State v. Stankowski, 184 Conn. 121, 131, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981). Once the trial court concludes that the state has met that burden, our review is limited by our “clearly erroneous” standard. Practice Book § 3060D.


author: Dupont, C.P. J.

text:
    State of Connecticut v. Willie Lee Bowman
    (2784)
    Dupont, C.P.J., Borden and Daly, Js.

      Argued October 11, 1984
    decision released January 15, 1985

      Joette Katz, for the appellant (defendant).

      William P. Mahoney, law student intern, with whom were Guy W. Wolf III, assistant state’s attorney, and, on the brief, Arnold Markle, state’s attorney, for the appellee (state).
   Dupont, C.P. J.

The defendant, after a trial to a jury, was convicted of sexual assault in the first degree, a violation of General Statutes § 53a-70. The issues of this appeal are whether the trial court erred (1) in giving jurors a continuing instruction permitting them to discuss the case in the jury room during the course of the trial, (2) in allowing the state to introduce testimony of alleged prior sexual misconduct of the defendant, (3) in denying the defendant’s motion for judgment of acquittal when the evidence presented by the state indicated that the crime occurred at a time different from that stated in the information, and (4) in failing to order a recording of closing arguments, thereby unconstitutionally depriving the defendant of his right to appellate review, effective assistance of counsel on appeal, due process, and equal protection of the law.

I

The defendant’s first claim of error is that the trial court should not have given the jury continuing instructions, during the trial, “not to discuss the case unless you are all together in the jury deliberating room.” The defendant did not object to the instructions. He now claims that they violated his constitutional right to a trial before an impartial jury. In State v. Washington, 182 Conn. 419, 438 A.2d 1144 (1980), an instruction similar to the one in the present case was given to the jury. The Supreme Court concluded that such an instruction allowing jurors to discuss a case and possibly form opinions before all the evidence was presented, constituted reversible error because it jeopardized the defendant’s right to an impartial jury in violation of the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. Unlike the defendant in the present case, the defendant in Washington objected to the instruction.

Since the defendant here failed to object to the instructions during the trial, he thereby waived his right to preserve the issue on appeal, unless his belated claim falls within one of two situations which may constitute “exceptional circumstances.” State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). The two exceptions are “where a new constitutional right not readily foreseeable has arisen between the time of trial and appeal,” or “where the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial.” Id.

The defendant contends that because Washington was not decided until nine months after the admonitions were given in the present case, he is asserting a new constitutional right which was not foreseeable at the time of his trial, and that he is therefore entitled to an Evans review. This contention is rebutted by the case of State v. Johnson, 188 Conn. 515, 467 A.2d 1237 (1982). Under similar circumstances, it was held that review of a claimed violation of a constitutional right not perfected at trial and to which no exception was taken is only justified under the first Evans test if the neglected claim was meritless at the time of trial due to long-standing precedent upon which litigants could rely. Id., 518A.

The Johnson court held that the decision of State v. Washington, supra, was in harmony with established state procedure which for at least 150 years had prohibited premature juror discussion. State v. Johnson, supra, 518A. Not having objected to the trial court’s instructions to the jury which allowed it prematurely to discuss the case, the defendant is now precluded from obtaining a review of those instructions. His claim is not the assertion of a constitutional right, unforeseen at the time of the trial.

The defendant also claims that the trial court’s admonitions to the jury are within the scope of the second Evans exception. This issue has been addressed by our Supreme Court in State v. Johnson, supra, 519. That case held that it is the defendant who must shoulder the burden of establishing, by a sufficiently complete record, that he has been deprived of a fundamental constitutional right and a fair trial. Our Supreme Court recently decided State v. Castonguay, 194 Conn. 416, 481 A.2d 56 (1984), wherein an instruction allowing premature discussion was given over the defendant’s objection. That court remanded the case to the trial court to allow the state an opportunity to establish beyond a reasonable doubt that the instruction was harmless error in accord with its previous holding in Washington. Id., 436. We are not confronted with this problem as the defendant here failed to object to the trial court’s instruction and therefore he, rather than the state, bears the burden of establishing the harmfulness of the instruction. We have reviewed the record and do not believe that it clearly indicates that the defendant has been deprived of a fundamental constitutional right and a fair trial.

II

The defendant’s second claim of error is that the trial court should not have allowed the state to introduce testimony of alleged prior sexual misconduct of the defendant with the complainant’s sister. Evidence of prior misconduct may not be admitted to prove the bad character or criminal tendencies of an accused, but such evidence is admissible (1) if it can be shown to be relevant and material on some element or issue of the case, and (2) if its probative value on this issue outweighs its general prejudicial tendency. State v. Howard, 187 Conn. 681, 684-85, 447 A.2d 1167 (1982); State v. Falby, 187 Conn. 6, 23, 444 A.2d 213 (1982).

The facts relevant to this claim were that the defendant was a friend of the victim’s family, that the victim was sixteen at the time of the crime with, which the defendant was charged, that her sister was thirteen at the time of the alleged prior sexual misconduct, that the victim and her sister were each allegedly assaulted in the defendant’s car, that each had entered his car after an offer of a ride to another sister’s home and that the alleged assaults were approximately two years apart in time.

The state claims that the evidence was admissible because it showed a common design or plan on the part of the defendant, and claims that it was sufficiently connected with the principal crime in terms of circumstances and peculiarity for substantiation of that crime. Evidence of prior sex offenses involving a third person is relevant and admissible if the prior behavior is not too remote in time, is similar to the behavior involved in the crime with which the defendant is charged and is committed upon a person in some way similar to the victim. State v. Esposito, 192 Conn. 166, 169-70, 471 A.2d 949 (1984). Although the victim and her sister share the similarity of family and youth, it is dubious whether the alleged touching of the victim’s sister in the defendant’s car in the presence of the defendant’s son, two years prior to the alleged assault of the victim, conforms to the Esposito standard for admissibility of evidence to show a common modus operandi between the uncharged prior misconduct and the charged misconduct. In determining the issue of admissibility of such evidence, an analysis of the particular sexual crime with which the defendant is charged is crucial. Id., 172. The alleged prior misconduct must show, in cases involving sexual assault in the first degree, that the common scheme involved the use or threatened use of force in order to compel sexual intercourse. The issue of admissibility on this ground, however, need not be reached in this case.

The evidence was properly admitted because the defendant himself had induced the testimony. On direct examination, the victim’s sister testified that the victim had told her that she had been raped by the defendant to which the victim’s sister had responded, “[n]o he didn’t.” The state did not pursue the reply. On cross-examination, defense counsel asked the witness why she had said the defendant had not assaulted the victim, to which she replied, “I would think that he was a friend of the family, so he wouldn’t do a thing like that.” The witness, upon further questioning by the defense, reiterated that opinion. These questions provoked the questions of the redirect examination which led to the testimony relating to the alleged prior sexual misconduct. The latter testimony was given, without any elaboration, and occupied less than two pages in a trial transcript of well over 600 pages. Since the defendant had introduced the subject of whether the defendant was a family friend, unlikely to sexually molest one of its female members, the state was entitled to delve into the subject on redirect examination. The field of inquiry was opened by the defendant and he cannot complain if the state attempted to clarify that field, even if the evidence would otherwise be inadmissible. State v. Roy, 173 Conn. 35, 50, 376 A.2d 391 (1977); see State v. Glenn, 194 Conn. 483, 498-99, 481 A.2d 741 (1984). The defendant’s counsel, through his cross-examination of the complainant’s sister, attempted to characterize the defendant as a man who would not sexually assault members of the victim’s family, and the complainant as a liar. This line of questioning precipitated the testimony of the redirect examination as to whether the complainant’s sister believed and had reason to believe that the defendant would attack the complainant, and ultimately led to testimony about the prior sexual assault upon the witness.

Ill

The defendant’s third claim of error is that the trial court erred in denying his motion for a judgment of acquittal which had been based on the variance between the time of the crime as alleged in the information and the evidence introduced. According to him, the element of time was the “centerpiece” of his defense and its entire focus. He argues that, contrary to the allegations of the information, the complainant and the defendant were observed in a bar in the company of others at the particular time specified in the information, and that the requirement of specificity in criminal pleadings implicates a broad range of rights offered a criminal defendant under the fifth, sixth, and fourteenth amendments to the United States constitution, as well as under the constitution of Connecticut, article first, § 8.

The information charged that the sexual assault occurred at approximately 11:30 p.m. on July 22,1978, whereas, according to the trial testimony, it occurred between 1 a.m. and 2:30 a.m. on July 23, 1978. The court denied the state’s motion to amend the information to read that the events occurred between 1 a.m. and 2 a.m. on July 23, 1978. It is axiomatic that it is not necessary that a sexual assault be proved to have been committed on the precise date alleged, provided it is proved (1) that the crime was committed prior to the date of the complaint, (2) that the crime was committed within the period fixed by the statute of limitations, (3) that time is not an essential element of the crime charged, and (4) that the time is not otherwise a material factor in the defendant’s case. State v. Horton, 132 Conn. 276, 277, 43 A.2d 744 (1945); see State v. Ramos, 176 Conn. 275, 276-77, 407 A.2d 952 (1978); State v. Bitting, 162 Conn. 1, 8, 291 A.2d 240 (1971).

The fourth element, whether the defendant was prejudiced in the presentation of his defense, is the only question which need be addressed in this case. The other elements are not in issue. The victim testified that the assault occurred between 1 a.m. and 2 a.m. on July 23. Such testimony adequately conformed to the charge in the information which stated that the attack occurred “on or about the 22nd day of July, 1978, at approximately 11:30 p.m.” The discrepancy of a maximum of two and one-half hours did not prejudice the defendant in this case because other testimony, that of defense witnesses, could have led to the conclusion that the assault could have occurred at the time alleged in the information.

Credibility, not timing, was the focus of the defense. The discrepancy between the specific hour charged in the information and the testimony of the victim was irrelevant to the principal thrust of the defense presented.

IV

The defendant finally claims that because the closing arguments of counsel at trial were not recorded, he was deprived of certain constitutional rights, including the right to effective assistance of counsel and equal protection of the law. The defendant argues that General Statutes (Rev. to 1983) § 51-61 (a), which required court reporters to record all proceedings “except arguments of counsel,” unconstitutionally impedes the availability of an essential portion of the appellate record.

Recently, § 51-61 (a) was amended to provide for recording the arguments of counsel “upon the request of any party. ” (Emphasis added.) Public Acts 1984, No. 84-23. Also, the Supreme Court recently took judicial notice of the practice used in Connecticut trial courts to preserve closing arguments. State v. Vitale, 190 Conn. 219, 226, 460 A.2d 961 (1983). “[T]he court reporter remains in attendance during argument, prepared to record any objection or interruption which may occur in the course thereof, but does not record the remarks of counsel unless so directed by the court.” Id., 226. The court held that “it appears that no request was made by counsel that these arguments be recorded”; id.; and that, therefore, the defendant “must be deemed to have assented to that procedure.” Id. In another decision, the court reaffirmed Vitale, stating that “[ajbsent any clearly denied request by the defendants for the arguments to be recorded or any exception taken to the method employed, the defendants must be deemed to have assented to the procedure employed” and to have “waived their right to object to any impropriety.” State v. Killenger, 193 Conn. 48, 59, 475 A.2d 276 (1984). In the present case, the defendant did not request that final arguments be recorded, nor did he object to the failure to record.

There is no error.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. General Statutes § 51-199 (c).


text:
    Francis Hampton et al. v. Lewis S. Arruda et al.
    (3173)
    Dupont, C.P.J., Hull and Spallone, Js.
    Argued December 5, 1984
    decision released January 15, 1985

      Joseph J. Kempf, for the appellants (defendants).

      Aaron P. Slitt, with whom, on the brief, was Theresa A. Twigg, for the appellees (plaintiffs).
   Per Curiam.

There is no error.