text:
    Leslie Srager et al. v. Kenneth Koenig
    (14043)
    Dupont, C. J., and Foti, Landau, Schaller and Spear, Js.
    Considered November 9
    decision released December 27, 1994

      Bernard Green, in support of the motion.

      John Timbers, in opposition to the motion.
   Spear, J.

The plaintiffs, Leslie Srager and Joan Srager, appeal from the order discharging a notice of lis pendens. The defendant asserts in his motion to dismiss that this court lacks subject matter jurisdiction over the appeal because it was filed after the expiration of the seven day appeal period specified by General Statutes § 52-325c (b). We agree.

The plaintiffs brought a breach of contract action seeking damages and an injunction compelling the defendant to convey to them certain property located in Fairfield in accordance with an agreement between the parties. The plaintiffs recorded a notice of lis pen-dens in the Fairfield town clerk’s office on September 16,1993. Pursuant to General Statutes § 52-325a (c), the defendant filed a motion in the trial court for a discharge of the notice of lis pendens on the ground that there was no probable cause to sustain the validity of the plaintiffs’ claims. The trial court granted the defendant’s motion and notice of the court’s order was issued to the parties on September 14,1994. The plaintiffs appealed from the order on September 27, 1994.

Our Supreme Court recently considered the effect of statutory appeal periods on an appellate court’s subject matter jurisdiction in Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 628 A.2d 1303 (1993). The dispositive issue in Ambroise was whether an appeal from the denial of a prejudgment remedy may be taken after the expiration of the seven day appeal period specified by General Statutes § 52-278l. The court stated that “the proper analysis of a statutory time limitation on the right to appeal devolves into a question of statutory construction: did the legislature, in imposing the time limitation, intend to impose a subject matter jurisdictional requirement on the right to appeal?” Id., 764. The court reviewed the language, historical background and purpose of § 52-278l and concluded that the legislature did so intend. As the failure to take an appeal within the time constraints of the statute deprived the court of subject matter jurisdiction, dismissal was required.

Our review of General Statutes § 52-325c, informed by the Ambroise analysis, leads us to conclude that the failure to appeal within the specified time period deprives this court of subject matter jurisdiction. The language of § 52-325c (b) is clear and is virtually the same as the language of § 52-278l (b), which the Supreme Court held to impose such a jurisdictional requirement. In Ambroise, the court also stated that “[t]he literal reading of § 52-278l (b) is buttressed, moreover, by reference to § 52-278l (c), which reverses the ordinary rules regarding automatic stays on appeal by mandating that the order is not stayed by an appeal unless the party appealing posts a sufficient surety bond.” Id., 765-66. Likewise, a literal reading of the seven day appeal period in § 52-325c (b) is buttressed by the stay provisions set forth in that statute. Subsections (b) and (c) of § 52-325c require the appellant to post a bond if a stay is granted beyond the seven day appeal period.

The purpose of a notice of lis pendens also supports a conclusion that the legislature intended to make the seven day appeal period jurisdictional. That purpose is to ensure “that the plaintiffs’ claim cannot be defeated by a prejudgment transfer of the property.” Williams v. Bartlett, 189 Conn. 471, 479, 457 A.2d 290, appeal dismissed, 464 U.S. 801, 104 S. Ct. 46, 78 L. Ed. 2d 67 (1983). The notice of lis pendens affects the defendant’s right to transfer his interest in the real property in question because the notice binds any subsequent purchaser or encumbrancer as if he were made a party to the action described in the lis pendens. See General Statutes § 52-325 (a) as amended by Public Acts, Spec. Sess., October, 1993, No. 93-4, § 1; see also Dunham v. Dunham, 217 Conn. 24, 34, 584 A.2d 445 (1991).

The manifest purpose of the seven day appeal period following the discharge of a notice of lis pendens is to inform the parties within a very brief period of time whether that order is final or will be challenged. If no appeal is taken during the seven day period, the defendant property owner can transfer his interest in the property free of the notice of lis pendens. A conclusion that the seven day appeal period is lengthened beyond that period would undermine that legislative purpose.

In this case, the plaintiffs appealed from the discharge of the notice of lis pendens thirteen days after the notice of that order was issued. The court lacks subject matter jurisdiction over this untimely appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       General Statutes § 52-325c provides in relevant part: “(a) Any order entered as provided in subsection (b) of section 52-325b shall be deemed a final judgment for the purpose of appeal.
      “(b) No appeal shall be taken from such order except within seven days thereof. . . .”

       General Statutes § 52-325a (c) provides in relevant part: “If the action for which notice of lis pendens was recorded, is pending before any court, the property owner may at any time . . . move that such notice of lis pen-dens be discharged of record.”

       It is axiomatic that parties cannot confer subject matter jurisdiction on this court by waiver, nor can this court confer such jurisdiction on itself. Simms v. Warden, 229 Conn. 178, 185, 640 A.2d 601 (1994).

       General Statutes § 52-325c provides in relevant part: “(b) No appeal shall be taken from such order except within seven days thereof. The effect of such order shall be automatically stayed for such seven-day period. If an appeal is taken within such seven-day period, the party taking such appeal may, within such period, file an application with the clerk of the court in which such order was issued, requesting a stay of the effect of such order pending such appeal, which application shall set forth the reasons for such request. A copy of such application shall be sent to the adverse party by the applicant. Upon the filing of such application, the effect of such order shall be further stayed until a decision is rendered thereon. A hearing on such application shall be held promptly. Such order shall be stayed if the party taking such appeal posts a bond, as provided in subsection (c) of this section.
      “(c) Upon the hearing on such application, the court shall: (1) Upon motion of the party taking the appeal set an amount of bond with surety for the stay of such order as provided in subsection (b) of this section, which amount shall be as the court deems sufficient to indemnify the adverse party for any damages which may result from the stay. If the party taking the appeal gives such bond the order shall be stayed; or (2) grant the stay; or (3) deny the stay; or (4) condition the granting of the stay upon the giving of such a bond.”

       “The time limited by law for commencing appellate proceedings on the decision, order, decree, denial or ruling shall date from the time when such notice is issued by the clerk.” General Statutes § 51-53 (b); see also Practice Book § 398.


source: Caselaw Access Project

author: O’Connell, J.

license: Public Domain

text:
    State of Connecticut v. Tyrone Adams
    (12650)
    O’Connell, Heiman and Spear, Js.
    Argued September 19
    decision released December 27, 1994

      Elizabeth M. Inkster, assistant public defender, for the appellant (defendant).

      Rita M. Shair, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, Michael Pepper, assistant state’s attorney, and William Westcott, law student intern, for the appellee (state).
   O’Connell, J.

The defendant appeals from his conviction, after a jury trial, of two counts of aiding and abetting manslaughter in the first degree in violation of General Statutes §§ 53a-8 and 53a-55 (a) (l).

On appeal, the defendant claims that the trial court improperly (1) instructed the jury concerning the use of prior inconsistent statements, (2) denied him his right of cross-examination, and (3) instructed the jury on consciousness of guilt. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. At approximately 3 a.m. on September 21,1991, police responded to a report of shots fired at the Athenian Diner on Whalley Avenue in New Haven. At the scene, the police found a hostile crowd of fifty to 100 people surrounding two wounded men lying on the ground. These two men, Hury Poole and Andrew Paisley, were later pronounced dead at a hospital. Another victim, Christopher Roach, had been shot in the arm.

An altercation had originated in the diner and continued outside. A crowd gathered, including the defendant; his friend Daryl Valentine, who was the shooter; and Byron McFadden, who would later testify at trial.

As Roach, Poole and Paisley joined the crowd, Roach heard the defendant shout, “Shoot him, shoot him, f___it, shoot him.” Valentine shot Poole and Paisley, ran to a car parked in the driveway of the diner and got in on the passenger side. Roach ran after him. As Roach approached the car, Valentine fired at him, hitting him in the arm. The car with Valentine in it sped away, followed shortly thereafter by the defendant, who drove off in his own car. Additional facts are included in the analysis.

I

The defendant first claims that the trial court improperly instructed the jury that it could consider the prior inconsistent statements of two witnesses in weighing the witnesses’ credibility. The defendant argues that the court should have instructed the jury that the prior statements could be used for substantive purposes as well as for impeachment. State v. Whelan, 200 Conn. 743, 752, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).

“ ‘For many years Connecticut followed the common-law rule; namely, prior inconsistent statements were inadmissible hearsay when offered for substantive purposes. In 1986 Connecticut altered its rule to admit certain prior inconsistent statements if given under “prescribed circumstances reasonably assuring reliability.” . . . Rather than adopt a rule admitting all such statements, however, [Whelan] restricted the new exception to “prior written inconsistent statements signed by the declarant who has personal knowledge of the facts stated, when the declarant testifies at trial and is subject to cross-examination.”. . .’ ” (Citations omitted; emphasis in original.) State v. Holloway, 209 Conn. 636, 649, 553 A.2d 166, cert. denied, 490 U.S. 1071, 109 S. Ct. 2078, 104 L. Ed. 2d 643 (1989). It is not disputed that the witnesses’ statements in the present case qualify under Whelan.

Although the defendant filed a written request to charge in connection with the prior statements, he did not include a request that the statements could be used for substantive purposes, nor did he take exception to the charge as given. Practice Book § 852. Because the defendant did not preserve the claim for review, we will consider it only if it qualifies under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

Under Golding, a defendant can assert a constitutional claim not preserved for trial, only if all of the following conditions are met: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” Id. If any one of the conditions is missing, the defendant’s claim will fail. Id., 240.

The second Golding prong, which requires the defendant to show that the unpreserved claim was of constitutional magnitude, is implicated here. This is not a case of first impression. The defendant acknowledges that on more than one occasion our Supreme Court has declared that failure to give a proper Whelan instruction presents an evidentiary and not a constitutional claim. State v. Wooten, 227 Conn. 677, 701, 631 A.2d 271 (1993); State v. Tatum, 219 Conn. 721, 738, 595 A.2d 322 (1991); State v. Holloway, supra, 209 Conn. 650-51.

Despite the foregoing precedents, the defendant urges us to reconsider the matter and to determine that an erroneous Whelan instruction constitutes a matter of constitutional dimension. This, we cannot do. We will not reexamine or reevaluate Supreme Court precedent. Whether a Supreme Court holding should be reevaluated and possibly discarded is not for this court to decide. Greger v. Greger, 22 Conn. App. 596, 599, 578 A.2d 162, cert. denied, 216 Conn. 820, 581 A.2d 1055 (1990). Accordingly, the defendant is not entitled to Golding review of this issue.

The defendant fares no better under his claim for plain error review. Such “review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” State v. Boles, 223 Conn. 535, 551, 613 A.2d 770 (1992). The failure by the trial court to give, sua sponte, an instruction that the defendant did not request, that is not of constitutional dimension and that is not mandated by statute or rule of practice is not such an obvious error that it will affect the fairness and integrity of and public confidence in the judicial proceedings.

We decline to review this unpreserved claimed instructional error.

II

The defendant next claims that the trial court improperly limited his cross-examination of Roach in violation of his confrontation rights under amendments six and fourteen to the United States constitution, and article first, § 8, of the Connecticut constitution. The defendant furnished a separate analysis of his claim under the state constitution.

Roach gave two statements to the police. In the first statement, given on September 30, 1991, a few days after the shooting, he said that he had been very drunk at the time of the crime but was certain that the defendant’s involvement had been limited to a fight with the two victims before they were shot. He also said that he did not remember having seen the defendant’s car that night.

On October 5, 1991, Roach was involved in a shooting that resulted in his being arrested and charged with attempted assault in the first degree, criminal use of a firearm, reckless endangerment and unlawful discharge of a firearm. The complainant in that case was the defendant in this case.

Thereafter, on February 16, 1993, Roach gave the police a second sworn statement in which he remembered the details of the incident at the Athenian Diner. Specifically, he remembered having seen the defendant’s car parked immediately in front of Valentine’s vehicle.

The trial court allowed the defendant to cross-examine Roach concerning the nature of the charges against him and the fact that the defendant was the complainant. The trial court, however, would not allow the defendant to cross-examine the witness concerning the details of the incident giving rise to Roach’s arrest, including such matters as the exact circumstances of the crimes, methods of committing the crimes and the relationship of a particular witness to the defendant. The court ruled that such details were not necessary for the jury to assess any bias or motive that the witness might have in testifying in the present case.

“It is firmly established that cross-examination regarding motive, bias, interest and prejudice is a matter of right and may not be unduly restricted. . . . The right to cross-examine adverse witnesses is not absolute, however, and limitations on the scope of cross-examination are within the sound discretion of the trial court, as long as the defendant has been allowed sufficient cross-examination to meet the requirements of the confrontation clause. . . . The defendant’s constitutional right to confrontation is satisfied if he is given the opportunity to expose facts from which the jury can appropriately draw inferences concerning a witness’ reliability.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Cobb, 27 Conn. App. 601, 611-12, 605 A.2d 1385 (1992).

Restrictions on the scope of cross-examination are within the sound discretion of the trial court. State v. Castro, 196 Conn. 421, 425, 493 A.2d 223 (1985). Every reasonable presumption should be given in favor of the correctness of the trial court’s ruling. State v. Johnson, 21 Conn. App. 291, 296-97, 573 A.2d 1218 (1990). “To establish an abuse of discretion, it must be shown that restrictions imposed on cross-examination were clearly prejudicial.” Id., 297. No prejudice was shown to have occurred in this case.

Ill

In his final claim, the defendant contends that the trial court’s jury instruction concerning consciousness of guilt was not supported by the evidence. There were two categories of consciousness of guilt evidence at trial, inconsistencies between the defendant’s two sworn statements and evidence of flight.

In seeking to introduce evidence of a defendant’s consciousness of guilt, “[i]t is relevant to show the conduct of an accused [e.g., flight], as well as any statement made by him subsequent to an alleged criminal act, which may be inferred to have been influenced by the criminal act.” (Emphasis added.) State v. Burak, 201 Conn. 517, 533, 518 A.2d 639 (1986), citing State v. Reid, 193 Conn. 646, 655, 480 A.2d 463 (1984). Once the evidence is admitted, if it is sufficient for a jury to infer from it that the defendant had a consciousness of guilt, it is proper for the court to instruct the jury as to how it can use that evidence. It is then for the jury to consider any ambiguity in the evidence. State v. Knighton, 7 Conn. App. 223, 508 A.2d 772 (1986).

Turning first to the flight aspect, the defendant argues that an instruction on flight as consciousness of guilt is not warranted unless the defendant knew he was wanted by the police. That is not the law in this state. State v. Piskorski, 177 Conn. 677, 723, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979). The standard is whether the evidence is relevant. Id.

“Generally speaking, all that is required is that the evidence have relevance, and the fact that ambiguities or explanations may exist which tend to rebut an inference of guilt does not render evidence of flight inadmissible but simply constitutes a factor for the jury’s consideration.” Id.

At trial, McFadden testified that he had seen the defendant get into his car and leave the scene. A police officer testified that he had seen the defendant driving rapidly down Whalley Avenue away from the shooting scene minutes after the incident. The testimony of both witnesses was relevant because it explained why the defendant was not at the crime scene when the police arrived.

The other facet of consciousness of guilt was the defendant’s inconsistent sworn statements to police. “In the present case, the defendant’s statements were relevant because they were made subsequent to an alleged criminal act and they may be inferred to have been influenced by that alleged act. Those statements were, therefore, properly admitted. The defendant’s statements . . . were [also] sufficient to allow the jury to infer that the statements were influenced by the alleged criminal act. Thus, the trial court was correct both in admitting them and, subsequently, in giving a consciousness of guilt instruction to the jury regarding them. It was then for the jury to consider possible alternative explanations for the statements.” State v. Aleksiewicz, 20 Conn. App. 643, 653, 569 A.2d 567 (1990).

There was sufficient evidence to support the consciousness of guilt instruction. It was proper to instruct the jury that if it found that the defendant intentionally made false statements concerning the crime that the jury could conclude that such statements showed a guilty connection with the crime. Id., 652.

Sufficiency of evidence was the sole objection to the consciousness of guilt instruction that the defendant raised in the trial court. A party is not entitled to have a claim reviewed on appeal on grounds different from those presented at trial. State v. Braman, 191 Conn. 670, 684-85, 469 A.2d 760 (1983). To hold otherwise would result in trial judges’ being found to have erred on questions never fairly presented to them. State v. Brice, 186 Conn. 449, 457, 442 A.2d 906 (1982). Accordingly, we will not consider any other claims asserting impropriety of the trial court’s consciousness of guilt instruction.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was initially charged with two counts of aiding and abetting murder in violation of General Statutes §§ 53a-8 and 53a-54a and one count of aiding assault in the first degree in violation of General Statutes §§ 53a-8 and 53a-59 (a) (1). The trial court granted the defendant’s motion for judgment of acquittal on the assault charge and, after the state filed a substitute information charging two counts of aiding and abetting murder, the jury found the defendant guilty of two lesser included offenses of aiding manslaughter in the first degree.

       Valentine was charged separately and is not involved in this appeal.

       The jury instruction relating to prior inconsistent statements was as follows: “In assessing the credibility of a witness, you may consider whether a witness has on prior occasions made a statement or statements which are inconsistent with his testimony on the witness stand. As with all questions of credibility, however, it is exclusively your function to determine the extent to which any such inconsistency might affect the credibility of a particular witness.”

       Practice Book § 852 provides: “The supreme 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 exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of objection. Upon request, opportunity shall be given to present the exception out of the hearing of the jury.”

       Practice Book § 4185 provides: “The court on appeal shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. ...”

       “While the defendant made no offer of proof to support the evidence to which the state objected, the defendant did take proper exceptions to the court’s rulings and clearly stated that he was attempting to elicit evidence of bias. We are unaware of any of our cases, and the state has not presented us with any, requiring an offer of proof in order to preserve a claim of infringement on the right of cross-examination.” State v. Santiago, 224 Conn. 325, 330-31 n.6, 618 A.2d 32 (1992).

       The relevant portion of the court’s instruction was as follows: “Also, in this state the law recognizes a principle known as consciousness of guilt. When a person is on trial for a criminal offense, it is proper to show his conduct as well as any declarations made by him subsequent to the alleged criminal offense which may fairly have been influenced by that criminal act. The state here claims that the defendant made certain statements to investigators concerning his activities of September 21,1991, and the state further claims that these statements were false in whole or in part. If you find that the defendant intentionally made material false statements in connection with the alleged crime, you may find that such statements tend to show a guilty connection with the crime.
      “You have also heard testimony from which you may conclude that the defendant fled from the scene of the shootings. Unexplained flight may also tend to show consciousness of guilt. It is for you, however, to decide whether such conduct, if you find it to be proved, reflects consciousness of guilt and what weight if any is to be attributed to such conduct. You may consider all of the conduct of the defendant subsequent to the alleged event in determining whether any of such conduct justifies a finding of a guilty conscience. Those are general principles that apply to most cases and to this case in some circumstances.”


text:
    State of Connecticut v. Dennis Smith
    (12134)
    O’Connell, Foti and Landau, Js.
    Argued October 27
    decision released December 27, 1994

      Theodore C. Morris, with whom, on the brief were David J. Elliott, Monique Rowtham-Kennedy and Deanna Dixon, for the appellant (defendant).

      David J. Sheldon, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and John Waddock, assistant state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from the judgment of conviction, after a jury trial, of conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-59 (a) (l). The jury acquitted the defendant of assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and carrying a pistol without a permit in violation of General Statutes § 29-35.

The defendant claims that (1) the evidence was insufficient to support his conviction of conspiracy to commit assault in the first degree, (2) the trial court improperly refused to give a missing witness jury instruction or to require two witnesses to testify before the jury, and (3) the trial court improperly denied his motion to suppress pretrial identification of the defendant. We reverse the judgment of the trial court.

The jury could reasonably have found the following facts. Shortly after noon on April 8, 1991, the victim, Walter Traynham, accompanied by two friends, confronted Harold Smith concerning a motor vehicle accident and shooting that had occurred two weeks earlier. Harold Smith was also accompanied by two friends, Quinn Smith and an unidentified young male. The confrontation escalated until one of Traynham’s friends punched Harold Smith in the face.

After being punched, Harold Smith, went into a nearby auto parts store and returned with the defendant who persuaded the group to disperse. Traynham and his group left the vicinity of the auto parts store and walked up the street toward a convenience store. The Smith group, including the defendant, followed them. There was no conversation among the members of the Smith group, nor were any weapons visible as they walked up the street. Traynham’s group entered the convenience store followed shortly thereafter by the Smith group.

As soon as the defendant entered the store, he and Traynham began fighting. As the fray continued, Quinn Smith shouted, “Shoot him, shoot him,” pulled a gun and started shooting at two members of Traynham’s group. At this point, the defendant drew a revolver and shot Traynham, nonfatally, in the lower right abdomen.

The state charged the defendant with conspiring with Quinn Smith and Harold Smith to commit assault in the first degree. Additional facts are included with our analysis of the first issue.

The defendant argues that there was insufficient evidence to support a conspiracy conviction. More specifically, he contends that there was no evidence of an agreement between the defendant and any other person to commit the crime of assault in the first degree.

In reviewing a sufficiency of the evidence claim, this court first reviews “the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury.” State v. Gomez, 225 Conn. 347, 350, 622 A.2d 1014 (1993). The court then determines whether, on the facts thus established and the inferences drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt. Id., citing State v. Lewis, 220 Conn. 602, 606, 600 A.2d 1330 (1991), and State v. Jarrett, 218 Conn. 766, 770-71, 591 A.2d 1225 (1991).

“To establish the crime of conspiracy [to commit assault in the first degree], the state must show that there was an agreement between two or more persons to engage [in the crime of assault in the first degree] and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators. . . .” (Citations omitted; internal quotation marks omitted.) State v. Estrada, 28 Conn. App. 416, 420, 612 A.2d 110, cert. denied, 223 Conn. 925, 614 A.2d 828 (1992).

It is fundamental criminal jurisprudence that the state is not required to prove the existence of a formal agreement between the coconspirators. State v. Ghere, 201 Conn. 289, 299, 513 A.2d 1226 (1986). It is sufficient to show that they knowingly engaged in a mutual plan to do a forbidden act. State v. Holmes, 160 Conn. 140, 149, 274 A.2d 153 (1970). Because conspiracies by their nature are generally clandestine arrangements, a conviction is usually based on circumstantial evidence. State v. Vessichio, 197 Conn. 644, 656, 500 A.2d 1311 (1985), cert. denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed. 2d 187 (1986); State v. Stellato, 10 Conn. App. 447, 453, 523 A.2d 1345 (1987).

Conspiracy is a specific intent crime, with the intent divided into two parts: (1) intent to agree to conspire; and (2) intent to commit the offense that is the object of the conspiracy. State v. Beccia, 199 Conn. 1, 3-4, 505 A.2d 683 (1986). Accordingly, to sustain a conviction for conspiracy to commit assault in the first degree the state must show not only that the conspirators intended to agree but also that they intended to commit each of the elements of assault in the first degree. State v. Estrada, supra, 28 Conn. App. 421.

Thus, in the present case the state was required to prove, beyond a reasonable doubt, the intent to commit the following elements of assault in the first degree: (1) with intent to cause serious physical injury; (2) to another person; (3) the defendant caused such injury to that person; (4) by means of a deadly weapon. See State v. Johnson, 26 Conn. App. 433, 436, 602 A.2d 36, cert. denied, 221 Conn. 916, 603 A.2d 747 (1992). Intent is seldom susceptible of proof by direct evidence and must be proved by inference. State v. Morrill, 193 Conn. 602, 609, 478 A.2d 994 (1984).

It is the jury’s function to draw whatever inferences it deems reasonable and logical. State v. Dumlao, 3 Conn. App. 607, 616, 491 A.2d 404 (1985). The jury, however, may not pluck these inferences from the ether. There must be sufficient evidence to support the inferences, otherwise they are not reasonable inferences and cannot support a conviction. State v. Estrada, supra, 28 Conn. App. 422. Once an inference has been reasonably found, it can be used as the basis for further inference. Id.

The evidence here showed that the defendant was not present at the initial altercation outside the auto parts store. He came out of the store and joined the Smith group, following the Traynham group down the street. There is no evidence, nor any reasonable inference that can be drawn, that the defendant knew that any other person in the Smith group possessed a gun and intended to use it to cause serious physical injury to Traynham. These facts are wholly insufficient to support an inference that the defendant entered into an agreement with anyone to commit the crime of assault in the first degree. Mere presence at the scene of the crime is insufficient to establish guilt of conspiracy. State v. Lynch, 21 Conn. App. 386, 392, 574 A.2d 230, cert. denied, 216 Conn. 806, 580 A.2d 63 (1990).

Even if Quinn Smith’s statement, “Shoot him, shoot him,” could, by any stretch of the imagination, support an inference that he and the defendant had agreed to shoot Traynham, it would not be enough. A coconspirator’s statement by itself cannot be used to establish prima facie proof of conspiracy. Id., 391.

We agree with the defendant that the facts presented were not sufficient to permit the jury reasonably and logically to infer that the defendant had agreed to engage in assault in the first degree. Because our decision on the defendant’s first claim is dispositive of the appeal, we do not reach his other claims.

The judgment is reversed and the case is remanded with direction to render judgment of not guilty of conspiracy to commit assault in the first degree.

In this opinion the other judges concurred.

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”
      General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .”


author: Lavery, J.

text:
    State of Connecticut v. Pedro Torres
    (12442)
    Lavery, Landau and Hennessy, Js.

      Argued September 23, 1994
    decision released January 3, 1995

      Jeffrey A. Jones, with whom, on the brief, was Elena M. Gervino, for the appellant (defendant).

      Pamela S. Meotti, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Thomas E. Prior, assistant state’s attorney, for the appellee (state).
   Lavery, J.

The defendant, Pedro Torres, appeals to this court from the judgment of conviction, after a jury trial, of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278, and conspiracy to distribute narcotics in violation of General Statutes §§ 2 la-277 (a) and 53a-48 (a). The defendant claims (1) that the trial court improperly found that probable cause existed to issue a search warrant based solely on information from an informant after the court had excised two corroborating paragraphs from the warrant affidavits because it found that the police had conducted an unlawful surveillance of the defendant, and (2) that the trial court improperly denied the defendant’s motion to suppress evidence obtained during the warrantless search of the hallway. We affirm the judgment of the trial court.

As to the first claim, the following is set forth in the affidavits: On January 9, 1992, a confidential informant notified Detectives Robert Kanaitis and Richard Murzin of the Hartford police department that a “Dominican narcotic organization was actively dealing large quantities of heroin in the city of Hartford.” The informant, who had worked with the police for seventeen years and whose information had led to numerous seizures, arrests and convictions, stated that large quantities of heroin were being kept and sold from apartments C-4 and C-7 at 23 Marshall Street. The informant stated that he had observed “the purchase of 100 yellow bags of heroin from a Hispanic male known as Pedro [the defendant] who is described as being 5'5" tall, 140 pounds, short black hair, light complexion.” The sale occurred in apartment C-7, but the informant saw the defendant walk to apartment C-4 to retrieve the heroin.

Four days after the informant’s call, the detectives met with Robert Lipman, the owner of 23 Marshall Street. They dressed as maintenance persons and, with Lipman’s approval, conducted a surveillance of apartments C-4 and C-7. The detectives knocked on the door of C-7 and stated that they were from the maintenance office and were installing smoke alarms in the apartments. They were admitted by a short, Hispanic male, approximately 5 feet 5 inches tall and weighing 140 pounds, with short hair, a mustache and a light complexion, who was later identified as the defendant. The detectives observed a large amount of United States currency and two beepers. Two Hispanic women were in the apartment, one of whom quickly removed the money from the table and placed it in a gym bag. The detectives installed a new battery in the smoke alarm and left the premises.

The detectives then knocked on the door of C-4 and were admitted by the same man who had admitted them to C-7. He appeared to be nervous. The detectives noticed that the apartment had very little furniture. They began to clean debris from the bathroom fan motor and requested a plastic bag for the debris. The defendant brought them the kitchen garbage bag, in which the officers observed many empty boxes of plastic sleeves, all commonly used to bag heroin, empty tape cases, glassine bags, and small rubber bands, commonly used to bundle ten packs of heroin. On the kitchen counter, in plain view, the detectives noticed a bottle marked “lactose” and several glassine bags. An unidentified woman quickly placed the lactose bottle in the kitchen cabinet. The detectives left after cleaning the fan and tightening loose screws in an intercom.

On the basis of the informant’s tip and the corroborating evidence, the detectives sought and obtained search warrants for 23 Marshall Street, apartments C-4 and C-7. The warrants were issued on January 13, 1992, four days after the informant’s tip and the same day that the detectives had entered the apartments. That evening, the detectives executed the search warrants and arrested the defendant and four other individuals.

From apartment C-4, the detectives seized two bags containing a total of 61.3 grams of heroin and 300 glassine bags containing a total 6.5 grams of heroin, each stamped with the word “MORTAL” and a skull. They also recovered a scale, a sifter, a pestle, a .38 caliber gun with five rounds of ammunition, an ink pad and a stamp with a skull and the word “MORTAL,” tape, rubber bands, bags, boxes of empty bags and tape containers. A search of apartment C-7 yielded $13,800, two beepers and records of drug sales. Murzin testified that the heroin recovered in the search would be worth approximately $85,000 on the street.

The defendant filed a motion to suppress all evidence seized in the case, arguing that it was “obtained in violation of the defendant’s rights under the fourth and fourteenth amendments to the United States constitution and in violation of the defendant’s rights under article first, § 7, of the Connecticut constitution.” He then filed an amended motion to suppress all evidence seized under authority of the search warrants.

The defendant claimed that paragraphs three and four of the affidavits, which described the surveillance, should be excised from the affidavits because the search was unlawful. He argued that the remaining paragraphs would not support a finding of probable cause. In a second amended motion to suppress, the defendant sought an order barring testimony about the “police ruse,” in the event that the court struck paragraphs three and four of the affidavits but concluded that the remainder supported a finding of probable cause.

The court found that the defendant had not consented to the search of C-4 or C-7 and that it was unlawful. The trial court considered the warrant affidavits “exclusive of paragraphs three and four.” The court analyzed the remainder of the affidavits under article first, § 7, of the Connecticut constitution.

In its oral memorandum of decision, the trial court found that “the facts stated in paragraphs one, two and five provided a substantial basis for the magistrate’s conclusion that there was a fair probability that illegal drugs and proceeds of narcotic transactions would be found in the respective apartments on January 13, 1992.” The trial court articulated the following reasons for its conclusion. First, the court noted that the affiants had described the confidential informant as “most reliable,” that the informant had worked with the police for a period of seventeen years, and the informant’s information had led to many seizures, arrests and convictions. In addition, the informant personally observed the events and details described in paragraph one of the affidavits, satisfactorily indicating the informant’s basis of knowledge.

From the informant’s statement that large quantities of heroin were “being kept and sold at two separate apartments located at twenty-three Marshall Street C-4 and C-7 in Hartford,” the court inferred that the informant had not viewed an isolated transaction, but part of an ongoing pattern of narcotics activity. Finally, the court noted that the place to be searched was a residence, and stated, “the very nature of the enterprise wherein the narcotics were kept in one apartment and the proceeds in a different apartment connotes a certain sophistication intended to thwart effective police investigation and prosecution. This sophistication connotes other than an isolated sale.” The court therefore denied the defendant’s amended motion to suppress, but granted his second amended motion to suppress, thus striking paragraphs three and four from the affidavits and barring testimony describing the police ruse.

The trial court’s decision is not erroneous, despite the presence of improperly obtained evidence in the affidavit, if the lawfully obtained evidence considered by itself is sufficient to establish probable cause. State v. Ostroski, 201 Conn. 534, 544-45, 518 A.2d 915 (1986); State v. Arpin, 188 Conn. 183, 190-91, 448 A.2d 1334 (1982); State v. Palangio, 24 Conn. App. 300, 306, 588 A.2d 644, cert. denied, 218 Conn. 911, 591 A.2d 813 (1991); State v. Rogers, 18 Conn. App. 104, 556 A.2d 1030 (1989). “Probable cause to search exists if: (1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity; and (2) there is probable cause to believe that the items named will be found in the place to be searched.” State v. Barton, 219 Conn. 529, 548, 594 A.2d 917 (1991); State v. Sivri, 231 Conn. 115, 142, 646 A.2d 169 (1994).

In determining whether an affidavit established probable cause to issue a search warrant, the reviewing court applies the “totality of the circumstances” test set forth in State v. Barton, supra, 219 Conn. 544. The court “must make a ‘practical, nontechnical decision whether, given all the circumstances set forth in the warrant affidavit, including the “veracity” and the “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.’ ” State v. Rodriguez, 223 Conn. 127, 134-35, 613 A.2d 211 (1992).

“When a search warrant affidavit is based on information provided to the police by confidential informants, the magistrate should examine the affidavit to determine whether it adequately describes both the factual basis of the informant’s knowledge and the basis on which the police have determined that the information is reliable. If the warrant affidavit fails to state in specific terms how the informant gained his knowledge or why the police believe the information to be trustworthy, however, the magistrate can also consider all the circumstances set forth in the affidavit to determine whether, despite these deficiencies, other objective indicia of reliability reasonably establish that probable cause to search exists. In making this determination, the magistrate is entitled to draw reasonable inferences from the facts presented.” State v. Barton, supra, 219 Conn. 544. The reviewing court may consider only the information that was actually before the issuing judge at the time the warrant was issued. State v. Delmonaco, 194 Conn. 331, 337, 481 A.2d 40, cert. denied, 469 U.S. 1036, 105 S. Ct. 511, 83 L. Ed. 2d 401 (1984).

In determining that the affidavit, excised of paragraphs three and four, did establish probable cause, the trial court first looked to the basis of knowledge and reliability of the informant. A fair reading of the affidavit shows a “most reliable informant” who for seventeen years had given information that led to many large seizures, arrests and convictions. The informant’s history of providing trustworthy information permitted the reasonable inference that the information in the affidavit was reliable. State v. DeFusco, 224 Conn. 627, 643, 620 A.2d 746 (1993). If an informant has a track record of providing reliable information, the issuing judge may credit the information given in a warrant application. State v. Morrill, 205 Conn. 560, 567, 534 A.2d 1165 (1987).

In addition, the redacted warrant affidavits establish the confidential informant’s factual basis of knowledge. The informant was present in apartment C-7 on January 9,1992, and personally observed “the purchase of 100 yellow bags of heroin from a Hispanic male known as Pedro who is described as being 5’5” tall, 140 pounds, short hair, and light complexion.” That during the sale of this heroin the informant observed “Pedro walk over to . . . C-4 . . . to get the heroin but left the money at . . . C-7.” An informant’s personal observation of the events set forth in the affidavit satisfies the basis of knowledge requirement. State v. Copeland, 22 Conn. App. 98, 102, 576 A.2d 567 (1990). The trial court also concluded that the signing of the search warrant four days after the observation of the sale satisfied the probable cause requirement that the narcotics were present at the time of the signing. The trial court noted that in paragraph one of the affidavit the informant claimed that there was a Dominican narcotics organization actively dealing large quantities of heroin in Hartford and that they were being kept and sold out of two separate apartments, apartments, C-4 and C-7, at 23 Marshall Street in Hartford.

We have recognized that the business of dealing in illegal drugs often involves a course of conduct that continues over a long period of time and is usually considered to be a regenerating activity. State v. Brown, 14 Conn. App. 605, 615, 543 A.2d 750, cert. denied, 208 Conn. 816, 546 A.2d 283 (1988). In addition, the fact that the places to be searched were residences indicated that they were “not merely ‘a criminal forum of convenience’ but rather a ‘secure operational base.’ ” State v. Johnson, 219 Conn. 557, 568, 594 A.2d 933 (1991). We conclude that the trial court properly found that probable cause existed to issue the search warrant based on the warrant affidavits without paragraphs three and four and based on the informant’s past history of reliability and his personal observations and the reasonable inferences deducted therefrom that there was an ongoing drug operation in apartments C-4 and C-7. See State v. Barton, supra, 219 Conn. 544.

The second claim is that the trial court should have granted the defendant’s motion to suppress evidence attained during the warrantless search of the hallway. The facts relevant to this claim are as follows: Kanaitis and Murzin conducted a surveillance of apartments C-4 and C-7 between 10 a.m. and 3 p.m. on January 13, 1992. Outside of the hearing of the jury, Kanaitis testified that the owner of the building had given them a key permitting them to enter the common areas in the building. The multiunit building has three floors, each with seven apartments, a locked hallway and a buzzer system. Apartments C-4 and C-7 are located on the third floor, at opposite ends of the hallway shared by the seven apartments. A key is required to enter the building, as well as the hallway on each floor. A buzzer system allows the tenants on each floor to admit guests through the locked doors.

The defendant sought to exclude all testimony concerning the surveillance, claiming that the defendant had a reasonable expectation of privacy in the hallway and that it was therefore illegal for the police to enter the hallway. The trial court overruled the defendant’s objection, noting that the owner of a building had given the detectives a key to a common area in which the defendant had no reasonable expectation of privacy. The defendant excepted to the trial court’s ruling.

The trial court permitted the detectives to testify that they observed the defendant and two other people walking back and forth between C-4 and C-7 and that the defendant answered when they knocked on the doors to apartments C-4 and C-7. In keeping with the trial court’s suppression ruling, however, the detectives did not indicate that they had entered the apartments during the surveillance.

The fourth amendment protects from unreasonable search and seizure only those areas in which a defendant can demonstrate a legitimate expectation of privacy. State v. Reddick, 207 Conn. 323, 330, 541 A.2d 1209 (1988). The court analyzes a defendant’s expectation of privacy on a case-by-case basis, employing the two part test set forth in Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) (Harlan, J., concurring). State v. Reddick, supra, 331. The test inquires as to (1) whether the defendant has exhibited an actual subjective expectation of privacy, and (2) whether that expectation is one that society recognizes as reasonable. Id. A trial court's finding that a defendant did not* have a reasonable expectation of privacy in the area searched may not be overturned by the reviewing court “unless it is legally or logically inconsistent with the facts found or involves an erroneous rule of law.” State v. Pittman, 209 Conn. 596, 601, 553 A.2d 155 (1989).

A tenant has a reasonable expectation of privacy “ ‘in areas where his use is exclusive, that is, where he has the legal right to control access and to exclude others.’ United States v. Holland, 755 F.2d 253, 255-56 [(2d Cir.), cert. denied, 471 U.S. 1125, 105 S. Ct. 2657, 86 L. Ed. 2d 274 (1985)] (legitimate expectation of privacy of apartment tenant exists only in an area subject to the tenant’s exclusive control); United States v. Arboleda, 633 F.2d 985, 991 (2d Cir. 1980) [cert. denied, 450 U.S. 917, 101 S. Ct. 1362, 67 L. Ed. 2d 343 (1981)] (apartment dweller’s legitimate privacy expectation exists in area where tenant has the right to exclude others); State v. Ragsdale, 381 So. 2d 492, 497 (La. 1980) (apartment dweller had reasonable expectation of privacy in completely enclosed patio outside his apartment unit); Commonwealth v. Hall, 366 Mass. 790, 794-95, 323 N.E.2d 319 (1975) (tenant has expectation of privacy in areas over which he can control access).” State v. Sealy, 208 Conn. 689, 693-94, 546 A.2d 271 (1988), quoting State v. Brown, 198 Conn. 348, 357, 503 A.2d 566 (1986).

We agree with the trial court that the defendant cannot establish a reasonable expectation of privacy in this case because he did not have exclusive control over the hallway and could not control access or exclude others from the hallway. In fact, “[a]t any time there might be deliverypersons, the landlord, his or her agents, visitors or residents of the other apartment[s] in that common hallway and the defendant could not lawfully have excluded them from the premises.” State v. Sealy, supra, 208 Conn. 694. “[A] common hallway in a [multifamily dwelling] is the means of ingress and egress to [all] apartments for visitors, deliverymen and tradesmen, among others, where one might reasonably expect to find an assortment of individuals.” State v. Reddick, supra, 207 Conn. 334 n.5.

The fact that the detectives needed a key to enter the hallway is insignificant in determining whether the defendant had an expectation of privacy. Here, as in State v. Sealy, supra, 208 Conn. 691, the building owner and the tenants shared the same access to the common hallway and the same means of admitting guests through the buzzer system. The mutual use and control of the property by the tenants and the building owner undermines the defendant’s asserted expectation of privacy.

The judgment is affirmed.

In this opinion the other judges concurred.

       The two warrant affidavits are identical except for the apartment numbers. The body of the affidavit submitted is as follows: “That the affiants Detective Robert Kanaitis and Detective Richard Murzin are both members of the Hartford Police Department with thirty-two years of combined police experience. That both affiants have participated and conducted numerous narcotic investigations that have subsequently led to arrests and convictions. That both affiants have attended many in service and narcotic schools. That Detective Robert Kanaitis was a sworn member of the Connecticut Statewide Narcotics Task Force for a period of sixteen months, a division of the Connecticut State Police.
      “(1) That on 01-09-92 the undersigned affiants received information from a most reliable confidential informant that a Dominican narcotic organization was actively dealing large quantities of heroin in the city of Hartford. That this informant who has been utilized as a confidential reliable informant for seventeen years and that his/her information has led to many large seizures, arrests and convictions. That this informant stated that large quantities of heroin was being kept and sold at two separate apartments located at 23 Marshall St. C-4 and C-7, Hartford, Connecticut. That the informant stated that he/she on 01/09/92 was at apartment C-7 with a Dominican male and observed the purchase of 100 yellow bags of heroin from a Hispanic male known as Pedro who is described as being 5’5” tall, 140 lbs., short black hair, light complexion. That during the sale of this heroin the informant observed ‘Pedro’ walk over to 23 Marshall Street C-4 Hartford, Connecticut, to get the heroin but left the money at 23 Marshall Street C-7 Hartford, Connecticut.
      “(2) That on 01-13-92 the undersigned affiants met with Robert Lipman owner of 23 Marshall Street, Hartford, Connecticut, who stated that he provided information that the persons living at 23 Marshall Street C-4 according to the application is a Hispanic male known as Manuel Cruz DOB-10-10-56 and that the persons listed for 72 Marshall Street C-7 is a Hispanic female known as Lydia Gonzales DOB-10-29-55. That these parties are possibly Dominicans placed at this building by a Gloria Martinez of Hispania Realty. That several persons that were in the past placed at 23 and 27 Marshall Street, Hartford, by Gloria Martinez have been arrested as Dominican drug dealers by these affiants.
      “(3) That the undersigned affiants with the approval of Robert Lipman disguised themselves as maintenance persons who were installing smoke alarms in the apartments for the purpose of an undercover purchase of heroin from 28 Marshall Street apartments C-4 and C-7 Hartford, Connecticut. That both affiants knocked on the door of 23 Marshall Street C-7 and that a short male, Hispanic, 5'5", 140 lbs., short hair, mustache, light complexion responded. Both affiants told this person that we were from the maintenance office and that we would be installing smoke alarms. That upon entrance to this apartment both affiants observed a large quantity of US currency sitting on the table and two beepers sitting on the table, there were two Hispanic females in the apartment, a heavy set female quickly took all the money off the kitchen table and placed it in a gym bag. At this time these detectives installed a new battery in the existing smoke detector and at no time searched any items or opened any drawers or looked other than open view. At this time these affiants left the premises with no suspicion from the suspects.
      “(4) That the undersigned affiants with the approval of Robert Lipman disguised themselves as maintenance workers and went to 23 Marshall Street C-4, Hartford, Connecticut, knocked on the door and again the same exact person who responded to 23 Marshall Street C-7 responded. He acted extremely nervous and again we stated that we were replacing the smoke alarm. That upon entrance it was noticed that this apartment had very little furniture. Detective Kanaitis noticed that the bathroom fan was opened and not functioning. At this time these affiants began to clean out the debris inside the fan motor and requested a plastic bag. The suspect known to these affiants as Pedro, took the kitchen basket bag and brought to these affiants who placed all debris into it. That at this time when these affiants looked into the surface of the garbage and noticed many empty boxes that normally contain 500 plastic sleeves that are commonly used to bag heroin, they also noticed many packages of empty scotch tape case and empty dispensers, many glassine bags, many small rubber bands normally used to bundle ten packs of heroin. That on the kitchen counter in open view both affiants observed a white plastic bottle marked ‘lactose’ and several empty glassine bags. This person known as Pedro was also in apartment C-4 with an unknown female who quickly placed the lactose in a kitchen cabinet. At the same time these affiants noticed that the intercom that was in the open area had two loose screws. Affiant Detective Murzin stated that it appeared that the intercom was defective. Pedro quickly stated, ‘No it’s fine.’ He was extremely nervous. Detective Kanaitis stated, T will tighten the screws.’ At this time both affiants left the apartment. At no time did the affiants search or look at any item that was not in the open or open any drawers or cabinets.
      “(5) That based on the information provided on this application that is all accurate and truthful and that based on information and personal observation by these affiants that there is ample probable cause to show the court that narcotics are being kept for distribution at the locations noted on this application. These affiants request that this application be granted.”

       The constitution of Connecticut, article first, § 7, provides: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.”


author: Landau, J. Hennessy, J.,

text:
    Robert LaRosa et al. v. Lawrence Kline et al.
    (12548)
    Landau, Hennessy and Freedman, Js.
    Argued October 24, 1994
    decision released January 3, 1995

      Thomas S. Hyman, with whom, on the brief, was Alan I. Saltzman, for the appellants (defendants).

      Frederick W. Krug, for the appellees (plaintiffs).
   Landau, J.

This is an appeal by the defendants Nancy Kline and Elizabeth DeLuca from a judgment rendered after a hearing in damages. The sole issue presented to this court is whether the trial court improperly awarded damages against the defendants in the absence of evidence as to the value of the property conveyed to them by their spouses, Lawrence Kline and Thomas J. DeLuca. It is important to note that the defendants do not assert lack of proof of damages. Rather, they maintain only that the plaintiffs failed to provide sufficient evidence to satisfy the appropriate measure of damages. They claim that the plaintiffs did not provide evidence of the value of the subject property and the value of the encumbrances thereon and, thus, that the trial court could not find damages in the amount that it did.

It is helpful to set out the procedural posture of the action. The plaintiffs are the holders of a promissory note in the amount of $50,000 executed by Lawrence Kline and Thomas DeLuca. By writ of summons and complaint dated October 13, 1992, the plaintiffs commenced suit when the makers of the note failed to make required payments. The first count of the complaint, directed solely against the makers, alleges that they were liable for the amount due under the terms of the note, plus interest, costs and attorney’s fees. Counts two through five allege, inter alia, that Lawrence Kline and Thomas DeLuca each fraudulently transferred real estate to their wives with the intent to prevent the property from being taken by legal process and with the intent to defraud the plaintiffs. These counts also allege that Nancy Kline and Elizabeth DeLuca knowingly aided, abetted and conspired with their husbands to defraud the plaintiffs. In their sixth and seventh counts, the plaintiffs seek damages pursuant to General Statutes § 42-110a et seq., the Connecticut Unfair Trade Practices Act, for the fraudulent transfers from the spouses to the defendants.

On December 15,1992, defaults were entered against all of the defendants for failure to plead. Additional defaults were entered on December 28, 1992, for failure to disclose a defense. The matter was scheduled for a hearing in damages before the court on May 26, 1993. On the same date, before the hearing in damages, the trial court, Licari, J., denied a motion filed only by Lawrence Kline and Thomas DeLuca to reopen the judgment of default. Following the denial of that motion, counsel representing the Klines and the DeLucas indicated to the plaintiffs’ counsel that he was returning to his office and did not intend to be present at the scheduled hearing in damages. After the presentation of evidence, the trial court, Mulvey, J., rendered judgment against the Klines and the DeLucas. This appeal followed.

A default “admits the material facts that constitute a cause of action”; Travelers Indemnity Co. v. Rubin, 209 Conn. 437, 445, 551 A.2d 1220 (1988); and “entry of default, when appropriately made, conclusively determines the liability of a defendant.” Ratner v. Willametz, 9 Conn. App. 565, 579, 520 A.2d 621 (1987). Despite the entries of default, had the defendants sought to challenge the right of the plaintiffs to maintain their action, or had they intended to prove any matter of defense, they would have been permitted to do so at the hearing in damages upon written notice to the plaintiffs. See Practice Book § 367. Moreover, pursuant to Practice Book § 374, the defendants would have been permitted to appear and offer evidence to reduce the amount of damages claimed without giving any notice.

In this case, Nancy Kline and Elizabeth DeLuca did not attempt to protect their rights in a timely fashion. They failed to plead, failed to disclose a defense, never filed a motion to open the judgment of default and, although notified that the hearing in damages was going forward, failed to appear at the hearing. Prudence dictated that they attend the hearing in damages, if for nothing more than to make certain that the trial court adopted the appropriate measure of damages. The burden of protecting any remaining rights with respect to the hearing in damages was on Nancy Kline and Elizabeth DeLuca. This case is not one in which a defendant failed to receive adequate notice and an opportunity to be heard on the question of damages. See Morelli v. Manpower, Inc., 34 Conn. App. 419, 642 A.2d 9 (1994) (adequate notice and opportunity to be heard must be accorded parties so as to comply with due process); see also Practice Book § 4185. Instead, Nancy Kline and Elizabeth DeLuca failed to follow the relatively simple rules and methodology set out in the rules of practice and merely suffered the consequences of their own inaction. Litigants cannot wholly ignore procedures established for the protection of their rights, as these defendants have done, and hope to receive the same treatment on appeal as that accorded to those who follow the rules of practice. Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 518, 508 A.2d 415 (1986). For this reason, we decline to review further the judgment of the trial court.

The judgment is affirmed.

In this opinion, Freedman, J., concurred.

Hennessy, J.,

concurring. I concur with the result reached by the majority but write separately to present an independent rationale for affirming the judgment of the trial court.

The thrust of the majority opinion is that you ignore procedure at your peril. The majority disregards the requirement that the burden of proving damages is on the party claiming them. Expressway Associates II v. Friendly Ice Cream Corp. of Connecticut, 218 Conn. 474, 476-77, 590 A.2d 431 (1991). Even if the defendant is absent from a hearing in damages, proof of damages is an essential element of the plaintiffs claim. Id.

In this case, at the hearing in damages, evidence in the form of an affidavit of debt and testimony concerning it was presented to the trial court. The defendants were not present. The court rendered judgment against all of the defendants.

There was no information in the transcript presented to this court that explained the distribution of damages among all the defendants. Nor did the transcript indicate the counts of the complaint for which damages were awarded. Without further facts, we decline the invitation of the defendants to look into the mind of the trial court to determine the method by which the trial court arrived at its decision. See State v. Rosedom, 34 Conn. App. 141, 145-46, 640 A.2d 634 (1994); Holmes v. Holmes, 32 Conn. App. 317, 319, 629 A.2d 1137, cert. denied, 228 Conn. 902, 634 A.2d 295 (1993).

       While the defendants’ appeal form indicates that Lawrence Kline, Nancy Kline, Thomas DeLuca and Elizabeth DeLuca all appealed from the denial of their motion to set aside the default and the judgment rendered at the hearing in damages, the only issue briefed was whether the trial court improperly assessed damages against Nancy Kline and Elizabeth DeLuca. Consequently, we deem all other claims abandoned; Practice Book § 4065; and hereinafter use “defendants” to refer to Nancy Kline and Elizabeth DeLuca only.

       Because the judgment had not been previously opened, we treat the motion as a motion to open. Pollio v. Conservation Commission, 32 Conn. App. 109, 110 n.1, 628 A.2d 20 (1993).

       Practice Book § 367 provides: “In any hearing in damages upon default suffered or after a denial of a motion to strike, the defendant shall not be permitted to offer evidence to contradict any allegations in the plaintiff’s complaint, except such as relate to the amount of damages, unless he has given notice to the plaintiff of his intention to contradict such allegations and of the subject matter which he intends to contradict, nor shall the defendant be permitted to deny the right of the plaintiff to maintain such action, nor shall he be permitted to prove any matter of defense, unless he has given written notice to the plaintiff of his intention to deny such right or to prove such matter of defense.”

       Practice Book § 374 provides: “The defendant may, without notice, offer evidence to reduce the amount of damages claimed.”

       Where the error is truly extraordinary and is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceeding, plain error review is warranted. Grayson v. Wofsey, Rosen, Kweskin & Kuriansky, 231 Conn. 168, 194, 646 A.2d 195 (1994). While such review is called for in the proper appeal, there is no manifest injustice present in this set of circumstances.


text:
    State of Connecticut v. Marion Lee Miller
    (13073)
    O’Connell, Landau and Heiman, Js.
    Argued September 28, 1994
    decision released January 3, 1995

      Susan M. Hankins, assistant public defender, for the appellant (defendant).

      Marjorie Allen Dauster, assistant state’s attorney, with whom, on the brief, was Michael Dearington, state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from the judgment of conviction, after a jury trial, of murder in violation of General Statutes § 53a-54a, felony murder in violation of General Statutes § 53a-54c and assault in the first degree in violation of General Statutes § 53a-59 (a) (l). The jury acquitted the defendant of reckless assault in violation of General Statutes § 53a-59 (a) (3).

The defendant claims that the trial court (1) improperly instructed the jury on the law of self-defense and (2) improperly sentenced the defendant on both intentional murder and felony murder. We reverse the judgment in part and remand the case for modification of sentence.

The jury could reasonably have found the following facts. On February 2,1991, the victim, Joseph Licari, owned and operated Joe’s Variety Shop on Whalley Avenue in New Haven. He was eighty years old, in poor health and walked with a cane. He usually worked alone, and a longtime friend, Nicholas Codianni, came to the store every evening to help him close.

At about 8 p.m. on February 2,1991, the defendant entered the store and soon became involved in an argument over a lottery ticket. The defendant pulled what turned out to be a toy gun from his pocket and announced, “This is a stickup.” While Codianni was attempting to knock what he believed to be a real gun from the defendant’s hand, Licari took his own pistol from behind the counter and fired toward the defendant, missing him. The defendant and Licari then engaged in a struggle for Licari’s gun. Codianni entered the fray, hitting the defendant on the head with a telephone. In the course of the struggle, the defendant and Codianni ended up in the shop’s back room where the defendant shot and wounded Codianni. The defendant then returned to the front of the store where he fired the lethal shot at Licari. The defendant left the store after picking up a $50 bill that had fallen to the floor during the struggle.

I

Self-defense was the principal defense offered by the defendant. He contended that he was the victim of an unprovoked attack by Codianni. The defendant makes two challenges to the trial court’s jury instruction on self-defense. First, that the instruction impermissibly replaced the subjective-objective test contemplated by the self-defense statute with a purely objective standard, and, second, that the instruction concerning initial aggression was tantamount to a directed verdict of guilty.

A

The state bears the burden of proving beyond a reasonable doubt that the defendant’s actions were not justified as self-defense. State v. Carter, 34 Conn. App. 58, 66, 640 A.2d 610, cert, granted on other grounds, 229 Conn. 916, 644 A.2d 915 (1994). The trial court read the relevant portion of the self-defense statute and then instructed the jury on the definitions of “reasonable” and “reasonable man.”

The standard for determining justification for the use of force is a subjective-objective one. “The statute focuses on the person . . . claiming self-defense. It focuses on what he reasonably believes under the circumstances and presents a question of fact. This subsection also makes clear that such a person may not use ‘deadly physical force’ unless he reasonably believes that the other person is either ‘using or is about to use deadly physical force’ or is ‘inflicting or about to inflict great bodily harm.’ ” (Emphasis in original.) State v. Corchado, 188 Conn. 653, 663, 453 A.2d 427 (1982). The jury must view the situation from the defendant’s perspective. State v. DeJesus, 194 Conn. 376, 389 n.13, 481 A.2d 1277 (1984). The starting point of a jury’s inquiry into whether reasonable force was used by the defendant is whether the defendant believed that deadly force was necessary to repel the attack. The bottom line is that ultimately the defendant’s belief must be found to be reasonable. Id., 390.

The defendant focuses on the portion of the instruction in which the trial court defined “reasonable” in terms of what “an ordinary prudent man” might perceive his situation to be. A correct instruction is what this particular defendant, as opposed to the hypothetical ordinary prudent man, believed his situation to be. The defendant, however, lifts the objective portion out of the instruction and views it in isolation. This excision skews the jury charge.

It is axiomatic that a jury charge is to be read as a whole and that individual instructions are not to be judged in artificial isolation from the overall charge. State v. Suggs, 209 Conn. 733, 755, 553 A.2d 1110 (1989); State v. Washington, 15 Conn. App. 704, 713, 546 A.2d 911 (1988). The test is whether the charge as a whole tended to mislead the jury. State v. Quintana, 209 Conn. 34, 44, 547 A.2d 534 (1988); State v. Boone, 15 Conn. App. 34, 55, 544 A.2d 217, cert. denied, 209 Conn. 811, 550 A.2d 1084 (1988).

When we view this instruction as a whole, it is apparent that the trial court correctly charged the jury on the subjective-objective standard. The defendant disregards the subjective portion of the charge and emphasizes the objective portion out of context. The court made it clear that “[t]he test is not what force is actually necessary to protect [the defendant] . . . rather the test is what force did he, acting as a reasonable man, believe to be necessary under the circumstances.” Seven times before and after the objective instruction the court expressly told the jury that unless the defendant reasonably believed that Licari or Codianni or both were about to inflict great harm on him he could not use deadly force in self-defense.

Considered as a whole, the jury charge adequately instructed the jury on self-defense in general, as well as the defendant’s subjective belief as to the force Licari was using or was about to use in particular. The jury was informed that it must look at what the defendant himself believed. It was also told to consider whether the defendant’s subjective belief that deadly physical force was necessary was ultimately reasonable, i.e., what a person of ordinary prudence and mental physical capacity in the defendant’s position would believe. The defendant’s belief was not left out of the equation. In directing the jury to consider what the defendant reasonably believed, the court stated the standard more than once in terms of the statute.

A proper self-defense instruction includes both subjective and objective aspects. In the present case, the trial court properly instructed the jury on both aspects.

B

The defendant next claims that the trial court’s instruction on the “initial aggressor” aspect of self-defense constituted either a directed verdict of guilty or created a mandatory presumption. During its deliberations, the jury sought clarification of the self-defense charge asking, “When a person is in the process of committing a robbery does he give up his claim to self-defense?” The court gave a supplemental charge. The short answer was “No, he does not give up his right to have [the jury] consider his claim of self-defense.”

The court then reread the self-defense statute to the jury, noting that a person is not justified in using physical force when he is the initial aggressor. Addressing the issue of initial aggressor, the court said, “So, as it relates to your question, if you find that the defendant was in the process of committing a robbery, that is, attempting to commit a robbery, because the very nature of the act of robbery, that is, a stealing or attempted stealing by the use of force, you would necessarily have found that the defendant was the initial aggressor. . . . So, to recap, if you find proven beyond a reasonable doubt that the defendant was attempting to commit a robbery, he would be found to be the initial aggressor and his use of physical force would not have been justified unless he withdrew from the confrontation and effectively communicated his intent to do so to the other party and the other party notwithstanding continued or threatened the use of physical force upon him.”

“There is no question that ‘[t]he standard of review to be applied to a claim of an improper instruction on the elements of self-defense is whether it is reasonably possible that the jury was misled.’ ...” (Citations omitted.) State v. Jimenez, 30 Conn. App. 406, 411, 620 A.2d 817 (1993), rev’d on other grounds, 228 Conn. 335, 636 A.2d 782 (1994). “In evaluating the propriety of a supplemental charge, we must examine both the main and supplemental charge as a whole. State v. Williams, 199 Conn. 30, 41, 505 A.2d 699 (1986).” State v. Hopkins, 25 Conn. App. 565, 571, 595 A.2d 911, cert. denied, 220 Conn. 921, 597 A.2d 342 (1991).

The defendant argues that the supplemental instruction concerning initial aggression usurped the role of the jury as trier of fact by presenting it with what amounted to a directed verdict. The defendant notes that one can construct a scenario wherein one attempts robbery without being an initial aggressor. Therefore, by telling the jury that someone attempting robbery is perforce the initial aggressor, the court had improperly taken that determination from the jury.

The defendant might have a point if he had been charged with attempted robbery, but he was not. Nor was the court instructing on the technical requirements of such a charge. Rather, the court was responding to the jury’s question about whether one abrogates a self-defense claim when he is in the “process of committing a robbery.”

At trial, the jury was presented with essentially only two versions of the event. It could have believed that the defendant was the victim of an unprovoked attack as he left Licari’s store, or it could have believed that the defendant was attacked only after entering the store, brandishing what appeared to be a gun and telling Licari and Codianni that this was a holdup.

When the jury asked the court about the effect of being in the “process of committing a robbery” on a self-defense claim, it was obviously considering the latter scenario. In that context, “attempting” or “attempted” robbery refers not to the technical legal term “attempted robbery” and its appurtenant elements, but rather to the lay understanding of someone waving a gun around, clearly intent on taking money, but, as yet, not having actually finished the job.

Looking at the main and supplemental charges as a whole and in light of the factual issues raised at trial, the court neither directed the jury to reach a verdict nor created a mandatory presumption. The trial court focused the jury’s attention on the parties’ conflicting versions of the altercation, leaving the fact-finding and credibility determinations to the jury. The court merely informed the jury of the legal effect of crediting one of the alternative versions. “Indeed, the instructions comported with the requirement that an allusion to the evidence is necessary to furnish the jury with a practical guide as to how to apply the law to the evidence. Shea v. Tousignant, 172 Conn. 54, 60, 372 A.2d 151 (1976).” State v. Storlazzi, 191 Conn. 453, 467, 464 A.2d 829 (1983). The defendant cannot prevail on this claim because the charge was merely an instruction of law, leaving fact-finding to the jury.

II

As a consequence of killing Licari, the defendant was convicted of both intentional murder and felony murder. The trial court sentenced the defendant to fifty years on each conviction with the sentences to run concurrently.

The state and the defendant agree that sentencing on “multiple convictions for a single homicide under the felony murder statute and any other homicide statute” constitutes double jeopardy. State v. Chicano, 216 Conn. 699, 710, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991); State v. John, 210 Conn. 652, 696-97, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989); State v. Couture, 194 Conn. 530, 560, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985).

We must remand the case to the trial court with direction to combine the defendant’s convictions for felony murder and intentional murder and to vacate one of the sentences. Combining these sentences will not change the total effective sentence of imprisonment. State v. Chicano, supra, 216 Conn. 721-25; accord State v. Howard, 221 Conn. 447, 462-63, 604 A.2d 1294 (1992).

The judgment is reversed in part and the case is remanded with direction to combine the defendant’s murder conviction with his felony murder conviction and to vacate the sentence for one of those convictions. The judgment is otherwise affirmed.

In this opinion the other judges concurred.

       This appeal was taken originally to the Supreme Court. Pursuant to Practice Book § 4023, the Supreme Court transferred the appeal to this court.

       “[General Statutes] Sec. 53a-54a. MURDER, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . .”

       “[General Statutes] Sec. 53a-54c. felony murder. A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery . . . and, in the course of and in furtherance of such crime . . . he . . . causes the death of a person . . . .”

       “[General Statutes] Sec. 53a-59. assault in the first degree: class b FELONY, (a) A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .”

       The defendant also offered a defense of “accident,” claiming that the gun discharged accidentally while he and Licari were struggling.

       “[General Statutes] Sec. 53a-19. use of physical force in defense of person, (a) Except as provided in subsections (b) and (c) of this section, a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.
      “(b) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling, as defined in section 53a-100, or place of work and was not the initial aggressor, or if he is a peace officer or a private person assisting such peace officer at his direction, and acting pursuant to section 53a-22, or (2) by surrendering possession of property to a person asserting a claim of right thereto, or (3) by complying with a demand that he abstain from performing an act which he is not obliged to perform.
      “(c) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force, or (3) the physical force involved was the product of a combat by agreement not specifically authorized by law.”

       The relevant portion of the jury instruction follows: “It may be concluded from the statute that a man who is being assaulted or who reasonably believes that he is about to be assaulted may use force in such a degree as he reasonably believes is necessary for his defense. The moment he steps over the line and uses more force than he reasonably believes is necessary, then he becomes a wrongdoer and he becomes guilty of the crime himself. The test is not what force is actually necessary to protect himself from the use or imminent use of force, rather the test is what force did he, acting as a reasonable man, believe to be necessary under the circumstances.
      * ** *
      “Now, ‘reasonably’ means what an ordinary prudent man, a man of ordinary mental and physical capacity using his faculties in a normal manner might do or perceive in a given set of circumstances. A man of common sense acting in a common sense manner. A reasonable belief is a belief generated by the particular circumstances fairly created and honestly entertained. Now, in determining what the defendant reasonably believed, you should ask what would an ordinary prudent man, a man of ordinary mental and physical capacity, using his faculties in a normal manner, what might he do or perceive? That is, what would a man of common sense acting in a common sense manner do under the circumstances that you find that the defendant found himself in. The statute focuses on a person claiming self-defense, that is, what would a man in the position of Marion Miller reasonably believe under the circumstances. . . . You must view the situation from the perspective of the defendant and ultimately you must find that the defendant’s belief was reasonable under the circumstances.”

       In its main charge on self-defense, the trial court stated: “[A] person is not justified in using physical force if he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justified if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force.
      “Now, the defendant claims that he used no aggressive actions against either of the victims until forced to do so by the aggressive actions of both Nicholas Codianni and Joseph Licari under a reasonable belief that Joseph Licari would continue to use a pistol against him. He claims to have been the victim of an assault upon him by Mr. Codianni as he was leaving the premises after arguing with Mr. Licari over a lottery play. He claims further to have been shot at by Mr. Licari and hit in the right hand by a bullet fired by Mr. Licari.
      “The state claims, among other things, that by drawing a pistol, pointing it at Mr. Codianni and announcing that ‘This is a stickup,’ that that makes him the initiator and aggressor of the violent action that was directed at Mr. Codianni and Mr. Licari, and, as such, he was not entitled to use deadly force against either Mr. Licari or Mr. Codianni. While this defense is applicable to each crime charged and the lesser included crimes as it relates — and any lesser included crimes as it relates to the charge of felony murder, if you find beyond a reasonable doubt that the defendant did, in fact, intend to rob Joe’s Variety Store, pointed a gun, albeit one determined to be a toy gun, and announce ‘This is a stickup,’ then you effectively would have found that he was the aggressor or initiator of the aggression, and the state would have proved beyond a reasonable doubt that he was not justified in his actions unless the evidence showed that he withdrew, or attempted to withdraw from the encounter, and effectively communicated such to the other parties of his intent to do so.”

       For example, one could, with intent to rob, conceal a gun in one’s pocket and enter a store. At this point one has met the elements of attempted robbery without being the initial aggressor for purposes of the self-defense statute.