author: Foti, J.

text:
    Frank X. Lo Sacco v. Debra M. Young et al.
    (5736)
    Dupont, C. J., Daly and Foti, Js.

      Argued May 12
    decision released September 19, 1989

      Frank X. Lo Sacco, pro se, the appellant (plaintiff).

      Joseph P. Petrucco filed a brief for the appellees (defendants).
   Foti, J.

The plaintiff appeals from the trial court’s

denial of his motion to set aside the verdict and for a new trial. The plaintiff claims that the trial court erred (1) in depriving him of a fair trial, (2) in permitting the defendants to cross-examine him with respect to two prior misdemeanor convictions, (3) in refusing to permit him to amend his complaint during the trial, (4) in failing to instruct the jury as requested, and (5) in other evidentiary rulings regarding damages. We find no error.

On November 5, 1985, the plaintiff instituted the present action for malicious prosecution against the three defendants, Debra M. Young, Lori Golab and Kim Billian, who are siblings. The court, with the consent of the parties, referred the matter to a state trial referee for a jury trial. On November 26, 1986, the jury returned a verdict in favor of the defendants, which was accepted by the trial court.

The jury could reasonably have found the following facts. The plaintiff and the defendant Young have joint custody of their son who was five years old on April 14, 1984. On that date, while his son was visiting the plaintiff, the defendants went to the plaintiff’s home. A dispute arose among the parties and, as a result, the defendants claimed that the plaintiff assaulted the defendant Billian. In response to a telephone call made by one of the defendants, the police arrived, took statements from the parties, and arrested the plaintiff for assault in the third degree in violation of General Statutes § 53a-61. In October, 1984, after a three day jury trial, at which the defendants testified, the plaintiff was found not guilty. Thereafter, the plaintiff brought the present action to recover damages against the defendants for malicious prosecution.

I

The plaintiffs first claim is that he was deprived of a fair trial by comments made to him by the trial court in the jury’s presence. He claims that these comments demonstrate that the trial court was biased against him because of his status as a pro se litigant.

We note initially that the plaintiff did not properly preserve this claim of judicial bias in that he did not move for a mistrial or disqualification of the trial judge. “As a general rule, even in cases alleging judicial bias, this court will not consider the issue on appeal where the party failed to make the proper motion for disqualification at trial. Practice Book § 4185; Cameron v. Cameron, [187 Conn. 163, 168, 444 A.2d 915 (1982)]; Trapp v. Trapp, 6 Conn. App. 143, 145, 503 A.2d 1187 (1986); Logical Communications, Inc. v. Morgan Management Corporation, 4 Conn. App. 669, 670, 496 A.2d 239 (1985).” Barca v. Barca, 15 Conn. App. 604, 607, 546 A.2d 887 (1988). Failure to request recusal or move for a mistrial can be construed as the functional equivalent of consenting to the judge’s presiding over the trial. Timm v. Timm, 195 Conn. 202, 205, 487 A.2d 191 (1985).

Although the plaintiff did not properly preserve his claim, because he represented himself during the trial and on appeal, we have reviewed the record to determine whether the plaintiff’s claim has any merit. See Rodriguez v. Mallory Battery Co., 188 Conn. 145, 149, 448 A.2d 829 (1982). We conclude that it does not. “Although we will not entirely disregard our rules of practice, we do give great latitude to pro se litigants in order that justice may both be done and be seen to be done. Cersosimo v. Cersosimo, 188 Conn. 385, 393, 449 A.2d 1026 (1982); LaBow v. LaBow, 13 Conn. App. 330, 336, 537 A.2d 157 (1988).” Cugini v. Cugini, 13 Conn. App. 632, 634, 538 A.2d 1060 (1988).

In support of his claim that the trial court’s conduct was biased against him and denied him a right to a fair trial, the plaintiff points to a number of instances in the transcript where the trial court made comments or “admonished” him in the presence of the jury in a manner that, he maintains, unjustly prejudiced him in the jury’s eyes because of his status as a pro se litigant. In addition, he claims that the court never advised the jury to disregard such admonishments made by the court to the plaintiff with regard to any procedural rulings or other conduct.

A trial judge, as a minister of justice, should be both cautious and circumspect in his language and conduct and should conduct a trial with the highest degree of impartiality. Barca v. Barca, supra, 606.‘A judge . . . should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.’ . . . The trial judge should be the exemplar of dignity and impartiality. United States v. Cruz, 455 F.2d 184, 185 (2d Cir.), cert. denied, 406 U.S. 918, 92 S. Ct. 1769, 32 L. Ed. 2d 117 (1972).” Swenson v. Dittner, 183 Conn. 289, 297, 439 A.2d 334 (1981). The trial court is responsible for maintaining a calm demeanor and the decorum of the courtroom. State v. Gordon, 197 Conn. 413, 425, 504 A.2d 1020 (1985). In this vein, the court should not make comments indicative of favor; LaBow v. LaBow, supra, 334; and should “ ‘refrain at all times from indulging in any improper remarks that may injure a litigant in the eyes of the jury.’ Felix v. Hall-Brooke Sanitarium, 140 Conn. 496, 502, 101 A.2d 500 (1953).” Stone v. Bastarache, 188 Conn. 201, 206, 449 A.2d 142 (1982). “ ‘Not every departure from the norm, however, is reversible error. Prejudice to the unsuccessful party, or at least the possibility of it, must appear to have occurred before this court will be justified in depriving the successful party of the result of the litigation which, so far as it was affected by his actions, he has obtained by fair means.’ ” Loda v. H.K. Sargeant & Associates, Inc., 188 Conn. 69, 86, 448 A.2d 812 (1982), quoting Felix v. Hall-Brooke Sanitarium, supra. “The controlling standard is whether a reasonable person who is aware of all the circumstances surrounding the judicial proceeding would question the judge’s impartiality.” LaBow v. LaBow, supra.

The plaintiff’s claim of judicial bias relates to his status as a pro se litigant. Where a party appears pro se, as he has every right to do, his rights and claim should “ ‘receive the same consideration as if he had been represented by an attorney.’ Martin v. Martin, 188 Neb. 393, 397, 197 N.W.2d 388 (1972).” Cersosimo v. Cersosimo, supra, 394. Our courts attempt to be “solicitous of the rights of pro se litigants and . . . will endeavor to see that such a litigant shall have the opportunity to have his case fully and fairly heard . . . .” Conservation Commission v. Price, 193 Conn. 414, 421 n.4, 479 A.2d 187 (1984). Although we are lenient to parties who represent themselves, such leniency should not be invoked as to affect adversely the other parties’ rights. LaBow v. LaBow, supra, 336. Furthermore, we will not wholly disregard our rules of practice, “adherence to which is necessary in order that the parties may know their rights and in order that the real issues in controversy may be presented and determined.” Rodriguez v. Mallory Battery Co., supra, 150 n.8.

Our review of the record indicates that although the trial court was mindful of the plaintiff’s status as a pro se litigant, its action and rulings did not demonstrate bias. Rather, the transcript indicates the court’s attempt to conduct the trial in a fair manner in order to protect the rights of all parties.

The trial court is permitted to take those steps necessary to ensure the orderly progress of the trial. LaBow v. LaBow, supra, 334. The transcript reveals that most of the comments by the court that the plaintiff finds objectionable related to proper procedure and the relevancy of certain evidence, or were made in response to objections. The trial court’s comments did not indicate a personal negative view of the plaintiff’s claim; Stone v. Bastarache, supra; or its opinion as to the plaintiff’s truthfulness; id.; nor did it show any “actual animosity” toward the merits of the plaintiff’s case. State v. Gordon, supra, 426. In addition, the court cautioned the jury not to penalize the parties for its rulings and comments. Although the trial court at times demonstrated frustration and impatience with the plaintiff, we conclude that its statements were not adversarial but rather, were consistent with its role as an impartial arbiter, and did not deprive the plaintiff of a fair trial.

II

The plaintiff’s second claim is that the trial court erred in permitting the defendants to question him during cross-examination about two criminal misdemeanor convictions. The following facts are relevant to this issue. During cross-examination, the defendants asked the plaintiff about his work history. The plaintiff responded that he had “hardly worked at all” since April, 1982, and he voluntarily explained that he was unable to work as a result of two other arrests “precipitated” by the defendants. When the defendants queried further into this matter, the plaintiff explained that on two prior occasions involving the defendants he was falsely arrested but that those arrests did not result in convictions. When the defendants proceeded to question the plaintiff further, the plaintiff objected. After a brief recess, the trial court permitted the defendants to impeach the plaintiff by questioning him about the two prior misdemeanor convictions. The scope of the defendants’ inquiry was limited to the fact that the plaintiff was convicted and the defendants did not elicit information related to the underlying details of the offenses.

As a general rule, misdemeanor convictions are not admissible to impeach a witness’ credibility. See General Statutes § 52-145; State v. McDermott, 190 Conn. 20, 25, 458 A.2d 689 (1983). In addition, judgments in criminal cases are not admissible in civil proceedings to prove the acts charged. Page v. Phehps, 108 Conn. 572, 588, 143 A. 890 (1928). Where, however, a party initiates testimony on a particular subject, which would ordinarily be inadmissible on other grounds, he is said to have “opened the door” to cross-examination by the adverse party on that subject. See State v. Graham, 200 Conn. 9,13, 509 A.2d 493 (1986). Under these circumstances the court may, in its discretion, permit further inquiry into a subject where the initiating party has made “unfair use of the evidence.” Id. “This rule ‘operates to prevent a [party] from successfully excluding inadmissible . . . evidence and then selectively introducing pieces of the evidence for his own advantage, without allowing [the adverse party] to place the evidence in its proper context.’ ” Id., quoting United States v. Lum, 466 F. Sup. 328, 334 (D. Del. 1979).

We emphasize that it was the plaintiff and not the defendants who placed before the jury evidence of the plaintiff’s prior arrests. Moreover, the plaintiff introduced evidence of other arrests of his own volition and not in response to a particularized question by the defendants intended to elicit such evidence. By his own testimony, the plaintiff invited cross-examination by the defendants to correct both the record and the false impression given to the trier of fact. Because the plaintiff initiated the discussion into his prior convictions, he cannot now be heard to complain that it caused him an injustice. If a litigant chooses this course, he should be obliged to suffer the consequences of his indiscreet testimony. Accordingly, the trial court did not abuse its discretion in permitting the defendants to cross-examine the plaintiff with respect to his prior convictions.

III

The plaintiff next claims that the trial court erred in failing to grant his motion to amend his complaint during the trial to add a paragraph alleging deprivation of his constitutional rights and a claim for punitive damages in his prayer for relief. The court denied the motion, finding that the amendment constituted a new cause of action and was, therefore, untimely and inappropriate.

“ 'While our courts have been liberal in permitting amendments; Johnson v. Toscano, 144 Conn. 582, 587, 136 A.2d 341 (1957); this liberality has limitations. Amendments should be made seasonably. Factors to be considered in passing on a motion to amend are the length of delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment. Cummings v. General Motors Corporation, 146 Conn. 443, 449-50, 151 A.2d 884 (1959). The motion to amend is addressed to the trial court’s discretion which may be exercised to restrain the amendment of pleadings so far as necessary to prevent unreasonable delay of the trial. Freccia v. Martin, 163 Conn. 160, 164, 302 A.2d 280 (1972).’ Beckman v. Jalich Homes, Inc., 190 Conn. 299, 302-303, 460 A.2d 448 (1983). . . . It is within the discretion of the trial court to grant or deny an amendment, and a decision to deny an amendment during a trial will not be disturbed unless there is a clear abuse of that discretion. Lawson v. Godfried, 181 Conn. 214, 216, 435 A.2d 15 (1980).” Farrell v. St. Vincent’s Hospital, 203 Conn. 554, 561-62, 525 A.2d 954 (1987). Our review of the record in this case and the plaintiff’s proposed amendment indicates that the court acted within its broad discretion in denying the plaintiff permission to amend his complaint during the trial.

IV

The plaintiff’s next claim is that the trial court erred in failing to charge the jury as he requested and that the charge as given misled the jury. In his request to charge, the plaintiff requested an instruction on false arrest or imprisonment. The plaintiff, when asked by the court what he considered to be his cause of action, replied: “There’s no title to this. This is whatever it says in the complaint.” On another occasion, the plaintiff admitted that his cause of action alleged malicious prosecution. The trial court denied the plaintiff’s request for an instruction on false imprisonment, and instructed the jury on the plaintiff’s complaint brought for a cause of action sounding in malicious prosecution.

Although the plaintiff has a constitutional right to a jury trial on the cause of action alleged in his complaint; Conn. Const., art. I, § 19; Wochek v. Foley, 193 Conn. 582, 586, 477 A.2d 1015 (1984); he may not allege one cause of action and recover upon another. Web Press Services Corporation v. New London Motors, Inc., 203 Conn. 342, 359, 525 A.2d 57 (1987); Malone v. Steinberg, 138 Conn. 718, 721, 89 A.2d 213 (1952). We have reviewed the plaintiffs complaint and agree with the trial court that it alleges a cause of action for malicious prosecution and not false arrest or imprisonment. Accordingly, we conclude that the trial court correctly instructed the jury.

We reach this result after reviewing the plaintiffs complaint. “False imprisonment, or false arrest, is the unlawful restraint by one person of the physical liberty of another. Felix v. Hall-Brooke Sanitarium, [supra, 499].” Green v. Donroe, 186 Conn. 265, 267, 440 A.2d 973 (1982). False imprisonment is categorized as an intentional tort for which the remedy at common law was an action for trespass. Id., 268. “[I]n the case of a false imprisonment the detention must be wholly unlawful . . . .” McGann v. Allen, 105 Conn. 177, 188, 134 A. 810 (1926). To prevail on a claim of false imprisonment, the plaintiff must prove that his physical liberty has been restrained by the defendant and that the restraint was against his will, that is, that he did not consent to the restraint or acquiesce in it willingly.

“An action for malicious prosecution against a private person requires a plaintiff to prove that: (1) the defendant initiated or procured the institution of criminal proceedings against the plaintiff; (2) the criminal proceedings have terminated in favor of the plaintiff; (3) the defendant acted without probable cause; and (4) the defendant acted with malice, primarily for a purpose other than that of bringing an offender to justice.” McHale v. W.B.S. Corporation, 187 Conn. 444, 447, 446 A.2d 815 (1982).

The distinction between malicious prosecution and false imprisonment has been described in the following manner. “Malicious prosecution is the groundless institution of criminal proceedings against the plaintiff. False imprisonment fell within the action of trespass, as a direct interference with the plaintiffs person, while malicious prosecution was regarded as more indirect, and the remedy for it was an action on the case. The distinction between the two lies in the existence of valid legal authority for the restraint imposed. If the defendant complies with the formal requirements of the law, as by swearing out a valid warrant, so that the arrest of the plaintiff is legally authorized, the court and its officers are not his agents to make the arrest, and their acts are those of the law and the state, and not to be imputed to him. He is therefore liable, if at all, only for a misuse of legal process to effect a valid arrest for an improper purpose. The action must be for malicious prosecution, upon proof of malice and want of probable cause, as well as termination of the proceeding in favor of the plaintiff. The weight of modern authority is that where the defendant has attempted to comply with legal requirements, and has failed to do so through no fault of his own, false imprisonment will not lie, and the remedy is malicious prosecution. The policy is to give the defendant the privilege of making reasonable efforts to bring his case properly before the court, without liability unless his ultimate purpose is an improper one.” W. Prosser, Torts (4th Ed.) § 11.

Because malicious prosecution and false arrest or imprisonment are separate and distinct causes of action, each must be pleaded by separate counts in a complaint. Practice Book § 138; see Burns v. Koellmer, 11 Conn. App. 375, 387-88, 527 A.2d 1210 (1987); Gach v. Franolich, 10 Conn. App. 677, 681-82, 525 A.2d 525 (1987). The plaintiffs substitute complaint contains four counts. The second, third and fourth counts incorporate the first count and allege in each that the three defendants conspired with the other defendants to cause maliciously his false arrest and prosecution. The plaintiffs complaint alleged that he was arrested by the Middle-town police as a result of the defendants’ statements and filing of a complaint against him. Because the law is clear that a cause of action for false imprisonment cannot be sustained where the plaintiff’s arrest results from the defendants’ institution of and compliance with proper legal authority, the allegations of the plaintiff’s complaint are insufficient to set up a cause of action for false imprisonment. We conclude, therefore, that the trial court properly denied the plaintiff’s request for an instruction on false arrest, and correctly concluded that the plaintiff’s complaint alleged a claim of malicious prosecution.

We now turn to that portion of the plaintiffs claim maintaining that the charge on malicious prosecution was misleading. We find no error.

“In determining whether the court erred in its charge to the jury, the charge must be read as a whole and the instructions claimed to be in error read in that context.” Giglio v. Hamilton Heights, Inc., 1 Conn. App. 165, 167, 469 A.2d 416 (1984), citing Matthews v. F.M.C. Corporation, 190 Conn. 700, 704, 462 A.2d 376 (1983) . The adequacy of the instructions must be determined in light of their overall impact on the jury. State v. Lenczyk, 1 Conn. App. 270, 271, 470 A.2d 1240 (1984) . The charge must be examined to determine whether it fairly presents a case to the jury. Ubysz v. DiPietro, 185 Conn. 47, 57, 440 A.2d 830 (1981).

We have reviewed the court’s instructions to the jury and conclude that it is not reasonably possible that the jurors were misled. The plaintiff was entitled to, and received, an instruction adequately suited to his claim of malicious prosecution as supported by the evidence he presented. See Grecki v. New Britain, 174 Conn. 200, 203, 384 A.2d 372 (1978); Mei v. Alterman Transport Lines, Inc. 159 Conn. 307, 313, 268 A.2d 639 (1970).

V

The plaintiff’s remaining claims challenge two evidentiary rulings by the court concerning the admissibility of certain evidence to establish damages. Because we have found no error on the plaintiff’s other claims and the jury returned a verdict for the defendants, thereby finding no liability, it is unnecessary for us to review the plaintiff’s claims of error as to damages.

There is no error.

In this opinion the other judges concurred.

       In Lo Sacco v. Young, 13 Conn. App. 827-28, 539 A.2d 149 (1988), we affirmed the trial court’s denial of the plaintiff’s motion to set aside the verdict and for a new trial. There, we determined that because the plaintiff’s motion was untimely, our review was limited to ascertaining whether the trial court committed plain error. After reviewing the record and briefs, we concluded that the trial court had not. Id., 828. Our Supreme Court reversed, concluding that the five day filing limitation for motions to set aside the verdict and for a new trial is procedural rather than jurisdictional and that we erred in raising the issue of timeliness sua sponte and in restricting our review of the plaintiff’s claims to plain error. Lo Sacco v. Young, 210 Conn. 503, 508-509, 555 A.2d 986 (1989). Accordingly, the case was remanded to this court with direction to decide the appeal on the briefs already filed by the parties in this court.

       The following are examples of comments by the court that the defendant found objectionable:
      During direct examination of himself, the following discussion took place:
      “By Mr. Lo Sacco:
      “Q. Mr. Lo Sacco — Will you give us some of your background?
      “A. I was bom in 1931.1 have a brother, a younger brother, and an older sister, mother—
      “The Court: (Interposing) Well, now, we’re starting. I don’t think it is necessary for the jury to know whether you have an older brother or sister or mother or father. This is not relevant to this case.
      “Mr. Lo Sacco: Is there an objection, Your Honor?
      “The Court: Well, I thought—
      “Mr. Patrucco: If Your Honor wants an objection, I was going to make an objection anyway, but, here again, I’m at a terrible loss if Your Honor pleases.
      “The Court: Well, I thought we were going to avoid this. Based upon our discussion before the jury came in, we were going to get all of your background, to that extent.
      “Mr. Lo Sacco: Alright. May I have an exception, Your Honor?
      “The Court: Exception is noted.”
      Later, during direct examination of himself and after the defendants objected, the court stated: “You can’t be both a counsel and a witness and be everything all at once, Mr. Lo Sacco. When Mr. Patrucco raises an objection, it seems to me that he should be permitted to explain his objection without your interrupting him.”
      After an objection by the plaintiff the following colloquy occurred:
      “The Court: Don’t start talking constitutional rights to me, please? Because you try to buttress every little thing with a constitutional right.
      “Mr. Lo Sacco: Yes.
      “The Court: Just don’t — it’s beginning to wear on me.
      “Mr. Lo Sacco: I’m sorry, Your Honor.
      “The Court: There’s no constitutional right involved here. Sustain the objection.
      “Mr. Lo Sacco: May I have an exception, Your Honor?
      “The Court: Exception is noted. I feel offended that the constitution is being used in this kind of situation. Go ahead.”
      In response to the defendants’ objection to the plaintiff’s cross examination the following colloquy ensued:
      “Mr. Patrucco: Between cross-examination and constitution, Your Honor,
      I presume he can ask any question he wants.
      “Mr. Lo Sacco: I object to that, Your Honor, that remark.
      “The Court: Well, his point is well taken. You have no unlimited right to cross-examine. There are certain stringent rules within which you are able to cross-examine but you just cannot ask any question that comes out of your head on the basis that it is cross-examination.”

       Although the plaintiff claims that the court never cautioned the jury to ignore its comments to counsel, the record discloses the court did, in fact, caution the jury. The court explained to the jury:
      “The Court: . . . With all the experience I’ve had — and I’ve had a lot of it — this is the first time I’ve encountered a plaintiff who represents himself on the witness stand and I’m having some problems handling it, so don’t hold it against Mr. Lo Sacco; don’t hold it against Mr. Petrucco. I just want you to understand the situation we find ourselves in now.”

       Canon SC of the Code of Judicial Conduct provides in pertinent part: “disqualification. (1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where: (a) he has a personal bias or prejudice concerning a party . . . .”

       During cross-examination, the plaintiff testified as follows:
      “Q. By the way, Mr. Lo Sacco, have you worked since April, 1982 . . . .
      “The Witness: I have worked, hardly at all, because of the other arrests.
      “By Mr. Patrucco:
      “Q. I’m sorry?
      “A. Because of the other arrests. The other arrests that they precipitated, I was in court after October.
      “Q. You mean this arrest?
      “A. No.
      “Q. This April 14 arrest?

        “A. No, the other arrests that your clients also precipitated against me.
      “Q. You mean there are other arrests of you, sir?
      “A. Yes.
      “Q. Is that what you’re trying to say?
      “A. Two others, yes.
      “Q. Two others?
      “A. Yes. False arrests.
      “Q. And, what kind — what did you say?
      “A. False arrests.
      “Q. False arrests?
      “A. Yes.
      “Q. And, sir, have those cases been disposed of?
      “A. Yes, they have.
      “Q. And, were they nolled?
      “A. They — the prosecutor refused to prosecute. A year after I was arrested.
      “Q. You have never been found guilty of any criminal act, is that what you want to tell the jury?
      “A. Those two arrests, the prosecutor refused to, and that’s the two that I’m talking about, prosecutor refused to prosecute.”

       The trial court permitted the following questions with respect to Mr. Lo Sacco’s prior convictions:
      “Q. Mr. Lo Sacco, I simply want to go back, if I may, to what you testified earlier, I don’t believe it was in response to any of my questions but you did testify that apart from the case in which we are involved with now, where you had been arrested, that there were two other occasions that you had been arrested. Is that correct? Did you testify to that?
      “A. I did, that there were two others, yes.
      “Q. And that, in each case, the prosecutor refused to prosecute those cases, is that correct?
      “A. Approximately a year later, yes.
      “Q. Now, sir, let me refer to a case of State v. Frank Lo Sacco, which was tried in this court, and the case number is CR9-71332; and it involved a charge—

        “Mr. Lo Sacco: Objection, Your Honor.
      “The Court: Objection is overruled. Let him ask his question.
      “By Mr. Patrucco:
      “Q. —and the case was — involved criminal trespass in which you were found—
      * ** *
      “Q. —in which you were found guilty. Do you recall that case?
      * * *
      “A. Yes.
      “Q. And, I direct you further to an additional case of State v. Frank Lo Sacco, in this court again, CR9-71333. And that was for disorderly conduct, Sir. And, you were found guilty of disorderly conduct. Is that not true?
      “Mr. Lo Sacco: Objection, Your Honor.
      “The Court: Objection is overruled.
      “Mr. Lo Sacco: May I have an exception, Your Honor?
      “The Court: Exception is noted.
      “By Mr. Patrucco:
      “Q. Will you answer the question?
      “A. Yes, it is true.
      “Q. So that your prior statement to the effect that the State refused, in the only two other cases which you were prosecuted, refused to prosecute, is not accurate, is it?
      “A. Your question is not accurate. . . .
      “The Court: You may answer that one yes, or no. And if you have an explanation for that, you will be allowed, later on, after Mr. Patrucco finishes with his cross-examination, you will be allowed then to make your •statement. So you may answer this one yes or no. . . .
      “Mr. Lo Sacco: Objection, Your Honor.
      “The Court: I’m not listening to any objections, you answer that question yes or no.
      “The Witness: I can’t answer it yes or no, Your Honor. It’s mischaracterizing—
      “The Court: You answer it yes or no and you will make your explanation later on.
      “Are we on record now?
      “The Monitor: Yes, we are.
      “The Court: You answer that yes or no.
      “The Witness: No.”
      The plaintiff argued that his conviction record had been misrepresented at trial. The plaintiff has been before this court on two prior criminal matters. In one case, after a jury trial, the defendant was acquitted of criminal trespass in the first degree and convicted of disorderly conduct. On appeal, this court upheld the plaintiff’s conviction for disorderly conduct. State v. Lo Sacco, 11 Conn. App. 24, 525 A.2d 977 (1987). In a separate action, the plaintiff was convicted of criminal trespass in the first degree, and on appeal we found that there was insufficient evidence to support the conviction and remanded the case to the trial court with direction to render a judgment of acquittal. State v. Lo Sacco, 12 Conn. App. 172, 529 A.2d 1348 (1987). During oral argument in this court, the plaintiff conceded that the trial court gave him the opportunity to explain to the jury that in the second case his conviction for criminal trespass was overturned, but that he chose not to as part of his trial strategy.

       The plaintiff proposed the following amendment to his complaint: “As a further direct and proximate result of the acts of the defendants, and each of them, as described herein, the plaintiff was deprived of Ms constitutional rights, which rights are secured to Mm by the provisions of the United States constitution under various amendments, and which rights that have been violated are as follows: freedom from illegal seizure of Ms person; freedom from illegal detention; freedom from malicious prosecution; freedom from intimidation and humiliation; equal protection of the laws; freedom to enjoy life, liberty, and property; the right as parent to the care, custody and nurture of his son.”

       During the course of the plaintiff’s direct examination, after an objection by counsel for the defendants, the court asked:
      “The Court: Of what relevance is this? This is a suit for malicious prosecution, is it not?
      “Mr. Lo Sacco: Yes, Your Honor. Also a deprivation of constitutional rights in which I claim the constitution right—
      “The Court: (Interposing) There is no constitutional right here that’s involved, so let’s get that squared away.”

       Practice Book § 138 provides: “ — separate counts
      “Where separate and distinct causes of action, as distinguished from separate and distinct claims for relief founded on the same cause of action or transaction, are joined, the statement of the second shall be prefaced by the words Second Count, and so on for the others; and the several paragraphs of each count shall be numbered separately beginning in each count with the number one.”

       The following portions of the plaintiff’s complaint are relevant to this claim: “8. As a result of the aforementioned acts by the defendants the Middletown police were summoned to the plaintiff’s residence whereupon each and all of the defendants requested to the police that the plaintiff be arrested and each and all of the defendants complained and made statements to the police alleging that the plaintiff had assaulted defendant Billian.
      “9. As a direct result of the aforementioned complaints and statements of each and all of the defendants, the police handcuffed the plaintiffs wrists behind his back in the full view and gaze of plaintiff’s minor child and placed the plaintiff under arrest at approximately 1:00 p.m. to 1:30 p.m., April 14, 1984, and thereafter removed the plaintiff from Ms home to the police station and booked and charged the plaintiff with the crime of assault in the third degree in violation of Connecticut General Statutes 53a-61.”


source: Caselaw Access Project

license: Public Domain

text:
    Ebenstein and Ebenstein, P.C. v. Smith Thibault Corporation
    (7728)
    Dupont, C. J., Spallone and Foti, Js.
    Argued June 22
    decision released September 19, 1989

      Lester Katz, for the appellant (plaintiff).

      Mary A. Glassman, with whom, on the brief, was Allan J. Kleban, for the appellee (defendant).
   Foti, J.

The dispositive issue in this appeal is whether the trial court’s order, denying the plaintiff’s request for a permanent and temporary injunction to enjoin the defendant from proceeding with arbitration, was a final judgment. Because we find that the trial court’s order did not constitute a final judgment, the plaintiffs appeal is dismissed sua sponte.

The facts are not in dispute. On August 13,1987, the parties entered into a construction contract, under which the defendant agreed to make certain improvements to the plaintiff’s leased office space in Hartford. According to the contract, all claims or disputes arising out of the contract were to be resolved by arbitration. Sometime after the defendant had begun construction, a dispute arose between the parties. Pursuant to the arbitration clause, the defendant filed a demand for arbitration with the American Arbitration Association (AAA). Subsequently, the plaintiff filed two actions in Superior Court. The first alleged that the defendant’s actions violated the Connecticut Unfair Trade Practices Act (CUTPA). General Statutes § 42-110a et seq. The second action, filed on November 17, 1988, sought a temporary and a permanent injunction to enjoin the defendant from proceeding with arbitration. On November 21, 1988, the defendant moved, pursuant to General Statutes § 52-409, to stay the CUTPA action pending the outcome of arbitration.

On December 12,1988, the trial court, by agreement of the parties, simultaneously considered the defendant’s motion for a stay and the plaintiff’s request for injunctive relief. At the outset of the hearing, the parties informed the court that they agreed that the hearing on the temporary injunction should be converted into a hearing on a permanent injunction. On December 22, 1988, the trial court granted the defendant’s motion to stay the CUTPA action and denied the plaintiff’s request for a temporary injunction. The court’s memorandum of decision did not include an order on the plaintiffs request for permanent relief.

Thereafter, the parties entered into a stipulation in which the plaintiff agreed to withdraw its appeal from the trial court’s order staying the CUTPA action. The parties further stipulated that because they had presented all of their evidence at the prior hearing, the court’s order on the temporary injunction should be considered final and thus, a denial of a permanent injunction. The trial court rendered judgment in accordance with the parties’ stipulation. The plaintiff appeals from the judgment denying injunctive relief.

It is rudimentary that the right of appeal is limited to parties aggrieved by final judgments. General Statutes §§ 51-197a, 52-263; Practice Book § 4000; Stroiney v. Crescent Lake Tax District, 197 Conn. 82, 84, 495 A.2d 1063 (1985); State v. Audet, 170 Conn. 337, 342, 365 A.2d 1082 (1976). Absent a statutory exception, an order granting or denying a temporary injunction is considered interlocutory and therefore is not an appealable final judgment. Doublewal Corporation v. Toffolon, 195 Conn. 384, 392, 488 A.2d 444 (1985). The parties argue that the judgment was final because it was rendered pursuant to their stipulation, which clarified their intention that the trial court’s order be considered an order denying a permanent injunction. Neither the parties nor the trial court, however, can confer jurisdiction upon this court. Stroiney v. Crescent Lake Tax District, supra; Doublewal Corporation v. Toffolon, supra, 390. We must therefore determine whether the trial court’s judgment denying injunctive relief was, in fact, an appealable final judgment.

This case is governed by Doublewal Corporation v. Toffolon, supra, which was cited by the parties at oral argument. According to Doublewal, although under certain circumstances, a temporary injunction may be transformed into a permanent injunction with the consent of the parties; see id.; Waterbury Hospital v. Connecticut Health Care Associates, 186 Conn. 247, 248-49, 440 A.2d 310 (1982); the trial court does not have the authority to render “permanent judgments on pending claims” where the pleadings are not yet closed. Doublewal Corporations. Toffolon, supra, 391. In the present case, the record reveals that the defendant did not file an answer to the plaintiffs complaint or amended complaint either before or after the hearing or before the court rendered its judgment in accordance with the parties’ stipulation. Therefore, it is evident that the pleadings were not closed. Id. Furthermore, the trial court’s memorandum of decision, filed after the hearing, considered only the question of a temporary injunction.

Accordingly, in view of the incomplete pleadings, no final judgment was rendered. The plaintiff has, therefore, appealed from an interlocutory order that is not yet ripe for appellate review.

The appeal is dismissed, sua sponte, for lack of jurisdiction.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 52-409. stay of proceedings in court. If any action for legal or equitable relief or other proceeding is brought by any party to a written agreement to arbitrate, the court in which the action or proceeding is pending, upon being satisfied that any issue involved in the action or proceeding is referable to arbitration under the agreement, shall, on motion of any party to the arbitration agreement, stay the action or proceeding until an arbitration has been had in compliance with the agreement, provided the person making application for the stay shall be ready and willing to proceed with the arbitration.”

       The parties agree that an order granting or denying an order made pursuant to General Statutes § 52-409; see footnote 1, supra; to stay proceedings pending the outcome of arbitration is not a final judgment. Schwarzschild v. Martin, 191 Conn. 316, 324, 464 A.2d 774 (1983); Gores v. Rosenthal, 148 Conn. 218, 221, 169 A.2d 639 (1961); KND Corporation v. Hartcom, Inc., 5 Conn. App. 333, 337, 497 A.2d 1038 (1985).


author: Norcott, J.

text:
    State of Connecticut v. Rodney Rollins
    (6858)
    (6859)
    Stoughton, Norcott and Foti, Js.
    Argued June 21
    decision released September 19, 1989

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

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Gary W. Nicholson, assistant state’s attorney, for the appellee (state).
   Norcott, J.

This is an appeal from the judgments of conviction in two cases that were consolidated for trial. In the case designated appeal No. 6859, the defendant was charged by information with the following crimes arising out of an incident involving the victim, Darryl Garrett, in Bridgeport: attempted murder in violation of General Statutes §§ 53a-49 and 53a-54a (a); attempted assault in the first degree in violation of General Statutes §§ 53a-49 and 53a-59 (a) (1); assault in the second degree in violation of General Statutes § 53a-60 (a) (2); and robbery in the first degree in violation of General Statutes § 53a-134 (a) (2). By separate information, in what is now appeal No. 6858, the defendant was charged with the crimes of attempted murder in violation of General Statutes §§ 53a-49 and 53a-54a (a), attempted assault in the first degree in violation of General Statutes §§ 53a-49 and 53a-59 (a) (1), assault in the second degree in violation of General Statutes § 53a-60 (a) (2), and attempted robbery in the first degree in violation of General Statutes §§ 53a-49 and 53a-134 (a) (2) for a separate incident involving another victim, Fonzie Davis, in a different section of Bridgeport on another day.

After a jury trial, the defendant was convicted of the crimes of assault in the second degree and robbery in the first degree in appeal No. 6859, and was sentenced to twelve years, execution suspended after nine years, with five years probation for the robbery conviction and three years concurrent for the assault conviction. In appeal No. 6858, the jury convicted the defendant of attempted assault in the first degree and assault in the second degree. The court sentenced the defendant to twelve years, execution suspended after nine years, with five years probation for the attempted assault and five years concurrent for the assault, the sentences in 6858 to run consecutively to the terms imposed in 6859. The total effective sentence was twenty-four years, suspended after eighteen years, and five years probation.

Appeal No. 6859

At trial, the jury could have reasonably found from the evidence in this case that, at approximately 12 a.m. on October 6, 1986, the defendant, Alan Fraser and Darryl Garrett became involved in an incident on a Bridgeport street that resulted in Garrett’s being robbed of $400 at gunpoint. In the course of the robbery, Garrett attempted to flee, he heard several shots fired behind him and was struck just below his right kneecap by one of the bullets. Edward Stark, Garrett’s treating physician, testified that the wound was not life threatening and involved no permanent damage.

The defendant claims that the trial court erred (1) in failing to instruct the jury on the essential element of operability of a gun under General Statutes § 53a-134 (a) (2), (2) in instructing the jury on an uncharged statutory alternative aggravating factor of robbery in the first degree, General Statutes § 53a-134 (a) (1), for which there was no supporting evidence, (3) in failing to instruct the jurors that they must be unanimous in their determination of which theory of liability the defendant’s conduct fell under in determining his guilt of robbery in the first degree, (4) in instructing on the statutory alternative of robbery set forth in General Statutes § 53a-133 (2) for which there was no supporting evidence, (5) in instructing the jury on two statutory alternatives for the underlying crime of larceny for which there was no supporting evidence, and (6) in admitting the defendant’s postarrest statement made during custodial interrogation in violation of his Miranda rights. Because we find error in the defendant’s last claim that requires a new trial in each case, we do not reach his other claims of error.

The defendant claims error in the admission of his postarrest statements to a Bridgeport police officer. The facts relevant to this claim are the following. On December 15,1986, Officer Michael J. Whitaker of the Bridgeport police department stopped a vehicle that had run a red light. The defendant was a passenger in that vehicle. A second police officer, Ronald Henderson, arrived on the scene very soon after the initial stop and identified the defendant, who had gotten out of the vehicle along with the other occupants, as the person wanted for attempted murder described on a poster he had in his car. Whitaker then noticed a bulge under the defendant’s shirt that turned out to be a nine millimeter handgun.

Thereafter, the defendant was arrested and taken to the Bridgeport police headquarters where he was given his Miranda warnings. At trial, Whitaker testified that a short time later he went to the holding cell to thank the defendant for not shooting him before he had discovered the gun. Whitaker then told the defendant that the word on the street was that the defendant had access to other guns, including an Uzi automatic machine gun. According to Whitaker’s testimony, when he asked the defendant what guns he had, the defendant denied ownership of an Uzi, but told Whitaker that he had “a .45, an automatic rifle, and some other handguns.” At this point in the conversation, another police officer interrupted the two men, and the conversation ended.

The defendant’s claim of error rests on his contention that because the state failed to present any evidence that the defendant had waived his Miranda rights, the trial court’s admission of his postarrest statement violated his privilege against self-incrimination.

We first note that although the defendant objected to this testimony on the basis of relevance, he failed to object or take exception to the admission of the postarrest statement on constitutional grounds. Having failed to preserve the precise claim for appeal, he now seeks Evans review. “While we generally do not review claims of error which have not first been presented to and ruled upon by the trial court, we will review unpreserved claims of error when the record adequately supports a claim that the defendant has been deprived of a fundamental constitutional right and a fair trial. State v. Smith, 200 Conn. 465, 475, 512 A.2d 189 (1986); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).” State v. Chung, 202 Conn. 39, 47, 519 A.2d 1175 (1987). We conclude that review is warranted on this claim.

The defendant contends that Whitaker’s questioning amounted to custodial interrogation, the response to which was inadmissible without proof of a waiver of the defendant’s Miranda rights. “Custodial interrogation means questioning initiated by law enforcement officers after a person has been taken into custody or deprived of his freedom of action in any significant way.” State v. Vitale, 197 Conn. 396, 411, 497 A.2d 956 (1985), citing Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

It. is undisputed that the defendant was in custody and that Whitaker initiated the conversation with him. The state contends, however, that the questioning by Whitaker did not constitute interrogation. “[T]he term ‘interrogation’ under Miranda refers both to express questioning and any words or actions on the part of the police ‘ “that the police should know are reasonably likely to elicit an incriminating response from the suspect.” ’ [State v. Vitale, supra, 411-12], quoting Rhode Island v. Innis, 446 U.S. 291, 301-302, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980).” State v. Burak, 201 Conn. 517, 531, 518 A.2d 639 (1986). We would have to suspend reason to conclude that Whitaker’s express questioning of the defendant, who was a suspect in two shootings, concerning what guns the defendant had is not questioning “likely to elicit an incriminating response.” We conclude that Whitaker’s exchange with the defendant constituted custodial interrogation.

The state argues, however, that the defendant’s statement and his failure affirmatively to invoke his constitutional rights constituted a waiver of those rights.' “A statement made by a defendant during the course of a custodial interrogation is admissible upon proof that he knowingly, intelligently and voluntarily waived his rights to remain silent and to the presence of an attorney.” State v. Householder, 7 Conn. App. 1, 7, 507 A.2d 1012 (1986). “ ‘In order to prove that the defendant has effectively waived his privilege against self-incrimination, the state must prove, by a preponderance of the evidence; Lego v. Twomey, 404 U.S. 477, 489, 92 S. Ct. 619, 30 L. Ed. 2d 618 (1972); State v. Wilson, 183 Conn. 280, 286-87, 439 A.2d 330 (1981); State v. Derrico, 181 Conn. 151, 162, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980); that the defendant knowingly and intelligently waived his constitutional right to remain silent. North Carolina v. Butler, 441 U.S. 369, 373, 99 S. Ct. 1755, 60 L. Ed. 2d 286 (1979); Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938). Waiver is not conclusively established by demonstrating that Miranda warnings were given and understood.’ 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).]” State v. Gray, 200 Conn. 523, 533, 512 A.2d 217, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986). In addressing this issue, we must presume that the defendant did not waive his constitutional rights. Id. The state may prove waiver by a course of conduct as well as by an express statement. State v. Barrett, 205 Conn. 437, 450, 534 A.2d 219 (1987); State v. Wilson, 183 Conn. 280, 284, 439 A.2d 330 (1981). In Wilson, the Supreme Court reviewed the defendant’s course of conduct that resulted in an oral confession. The court held that “there is not one scintilla of evidence of any verbal or physical indication by the defendant that he either wanted to waive or did, in fact, waive his rights. . . . The only fact from which waiver might conceivably be inferred is the actual speaking of the inculpatory remarks by the defendant; but that is not enough. A valid waiver cannot be presumed ‘simply from the fact that a confession was in fact eventually obtained.’ Miranda, supra, 475.” (Citation omitted.) State v. Wilson, supra, 286.

This reasoning applies to the defendant’s statement at issue in the present case. There is nothing in the record, other than the alleged statement, to indicate that the defendant wanted to or in fact did waive his right against self-incrimination.

Although not raised by the state, there is another theory under which the defendant’s statements, although taken in violation of his Miranda rights, might be admissible at trial and that is for the purpose of impeaching the credibility of the defendant. “Statements of a defendant which have been obtained after a failure to comply with the requirements for an effective waiver of the right to counsel or the privilege against self-incrimination may be used in cross-examining him after he has taken the witness stand at the trial. United States v. Havens, 446 U.S. 620, 100 S. Ct. 1912, 64 L. Ed. 2d 559 (1980); Harris v. New York, 401 U.S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971).” State v. Nardini, 187 Conn. 513, 517-18, 447 A.2d 396 (1982). Such inculpatory statements may be used for impeachment purposes, however, only if “the trustworthiness of the evidence satisfies legal standards”; Harris v. New York, supra, 224; and the court gives a proper limiting instruction. Walder v. United States, 347 U.S. 62, 64, 74 S. Ct. 354, 98 L. Ed. 503 (1954); see also United States v. Havens, supra, 623; Harris v. New York, supra, 223.

It is clear from the state’s offer of proof that it intended to present Whitaker’s testimony to impeach the credibility of the defendant’s statement on cross-examination that the nine millimeter gun seized from him upon his arrest was the only gun he had. The defense introduced the gun seized from the defendant in response to expert testimony produced by the state. A ballistics expert had testified that although seven shell casings found at the scene of the Davis shooting were all from the same nine millimeter gun, and spent bullets found on the floor of Davis’ car and removed from Garrett’s knee were also nine millimeter, the gun seized from the defendant, although a nine millimeter, was not the gun that fired the casings and could not be proved to be the gun that fired either of the bullets. Thus, the defendant’s statement that he only had one gun, the one seized upon his arrest, which he testified was the one he had on his person but never fired during the Garrett shooting, was designed to show that he did not have the gun used in either shooting. Clearly, then, the statement that he did have other handguns could be viewed as affecting the jury’s opinion of the defendant’s credibility.

The “trustworthiness” standard appears to require that the statement admitted for impeachment purposes not be involuntary or coerced. See Oregon v. Hass, 420 U.S. 714, 716-17, 95 S. Ct. 1215, 43 L. Ed. 2d 570 (1975). There is no evidence before us on the issue of the voluntariness of the statement, but a determination of that issue is not required for the disposition of the defendant’s claim. Even assuming the statement was not coerced, we conclude that the trial court’s instruction concerning the defendant’s pretrial statement was constitutionally impermissible.

Although neither the defendant nor the state requested a jury instruction concerning the admission of the pretrial statement, the court gave the following instruction: “A statement made by a defendant, and there was a statement that you heard in testimony yesterday, other than that — a statement made by the defendant made at a time other than the trial may be an admission. An admission as applied to criminal cases is the avowal or acknowledgement of a fact or of circumstances from which guilt may be inferred intend[ed] to prove the offense charged when considered with the rest of the evidence but not amounting to a confession of guilt.

“The accused, in this case, took the stand and testified. In weighing the testimony of an accused person, you should apply the same principles by which the testimony of other witnesses is tested. And that, necessarily, involves a consideration of his interest in the outcome of the case. You consider the importance to him of the outcome of the trial. An accused person, having taken the witness stand, stands before you then just like any other witness and is entitled to the same consideration and must have his testimony measured the same way as any other witness including interest in the verdict which you are about to render.

“If an accused should attempt to make false statements respecting himself and his conduct concerning the matter on trial, you may consider this as evidence tending to show a guilty connection by the accused with the crime charged.”

This instruction, which clearly allowed the jury to consider the pretrial statement as evidence of guilt rather than for the proper limited purpose of impeaching the defendant’s credibility, was constitutionally impermissible. The state contends, however, that any error in admitting this statement was harmless. We disagree. “If [an] instructional error is constitutional, the state has the appellate burden of establishing that there is no reasonable possibility that the jury was misled. State v. Shifflett, [199 Conn. 718, 754, 508 A.2d 748 (1986)]; State v. Mason, [186 Conn. 574, 585-86, 442 A.2d 1335 (1982)]; State v. Greene, 11 Conn. App. 575, 581, 528 A.2d 855, cert. denied, 205 Conn. 804, 531 A.2d 938 (1987).” (Emphasis in original.) State v. Coleman, 14 Conn. App. 657, 678, 544 A.2d 194, cert. denied, 208 Conn. 815, 546 A.2d 283 (1988).

The jurors had the following evidence before them when the court instructed them on the law: (1) The defendant’s testimony that he was at the scene of the Garrett shooting with a nine millimeter gun in his belt which he never pulled out; (2) the defendant’s testimony that the gun seized from him upon his arrest was the same gun he had during the Garrett shooting; (3) the defendant’s testimony that that was the only gun he had; (4) the testimony of a ballistics expert stating that he could not link the portion of the nine millimeter bullet removed from Garrett’s knee to the gun seized from the defendant; and (5) Whitaker’s testimony that the defendant stated that he had “some other handguns.”

The erroneous instruction allowed the jury to consider the defendant’s pretrial statement as “an admission ... of a fact . . . from which guilt may be inferred, intend[ed] to prove the offense charged . . . .” This means that the jurors could find that the defendant “admitted” to having other handguns, and from this admission they could infer that he had another nine millimeter handgun that could have been used to shoot the victim. We conclude that the state has not sustained the burden of establishing that there is no reasonable possibility that the jury was misled by this erroneous instruction.

There is error and the judgment of conviction in appeal No. 6859 must be set aside and a new trial ordered.

Appeal No. 6858

In this case, the jury could have found the following facts. On the evening of October 7,1986, Fonzie Davis was driving on Stratford Avenue in Bridgeport looking for his friend, Glenda. Davis found Glenda, but noticed that she began to run away as he approached. Davis then noticed the defendant, a person he had known for approximately five years, near his car. Davis testified that an altercation immediately ensued during which the defendant demanded that Davis hand over the two gold chains he was wearing around his neck. Davis further testified that he foiled the robbery-attempt by speeding away in his car at which time the defendant fired nine or ten shots at him, one of which struck him in the shoulder area. Davis drove to Park City Hospital where he stayed for one and one-half days recuperating from the injury which was not life threatening. Davis later went to the police station and gave a written statement identifying the defendant as his assailant.

Police testimony at trial revealed that seven nine millimeter shell casings were found in the area of Hollister and Stratford Avenues where the shooting had taken place. The police also found a spent nine millimeter bullet on the floor of the victim’s car behind the driver’s seat. The defendant was subsequently arrested pursuant to a warrant for the shooting of Davis.

The defendant raises the following claims of error: (1) the defendant’s convictions for both attempted assault in the first degree and assault in the second degree violated his federal and state rights against double jeopardy and his right to due process of the law under the Connecticut constitution and (2) the same evidentiary claim of error raised in appeal No. 6859, that the trial court erred in admitting the defendant’s postarrest custodial statement.

The defendant’s claim of error in the admission of his postarrest statement taken in violation of his Miranda rights is the same claim as that made and decided in appeal No. 6859, supra. Our conclusion that there was harmful error in the court’s instruction regarding the defendant’s statement applies to this appeal as well, and we therefore remand this case for a new trial.

The evidence before the jury in this case when it received the court’s erroneous instruction was (1) that the victim had been shot with a nine millimeter handgun, (2) that the defendant, when arrested, had a nine millimeter gun in his possession, (3) that the ballistics expert testified that the gun seized from the defendant was not the one that fired the shell casings found at the scene and that the spent bullet found in the victim’s car could not be linked with that gun, (4) that the defendant testified that the only gun he had was the one seized upon his arrest, and (5) that Whitaker testified that the defendant had told him he had a .45, a rifle and “some other handguns.” The jury also had before it the defendant’s testimony that he was not at the scene of the Davis shooting.

The erroneous instruction misled the jurors in this case as well by allowing them to consider the defendant’s pretrial statement as an admission from which they could infer his guilt by inferring that one of the other handguns the defendant said he had could have been the one used to shoot the victim. We again conclude that the state has not, and indeed on the facts of this case could not have, sustained its burden of proving that there is no reasonable possibility that the jury was misled by the erroneous instruction.

Because we cannot speculate as to how the state will charge the defendant on the retrial of this case, we do not reach the defendant’s double jeopardy and due process claims.

There is error on each appeal, the judgments are set aside and the cases are remanded for new trials in accordance with this opinion.

In this opinion the other judges concurred.

        Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       The defendant’s pretrial statement was not raised on cross-examination of the defendant, but rather by the state’s direct examination of Whitaker on rebuttal. This fact does not, however, affect the admissibility of the statement. See Oregon v. Hass, 420 U.S. 714, 716-17, 95 S. Ct. 1215, 43 L. Ed. 2d 570 (1975). Also, the fact that the defendant’s statement at trial, that he had no other guns, was elicited on proper cross-examination rather than on direct, is of no consequence to its admissibility. United States v. Havens, 446 U.S. 620, 627, 100 S. Ct. 1912, 64 L. Ed. 2d 559 (1980).


text:
    State of Connecticut v. Simon Ostolaza
    (5996)
    Daly, Stoughton and Norcott, Js.
    Argued June 9
    decision released September 19, 1989

      James J. Nixon, with whom, on the brief, was Penny Q. Seaman, for the appellant (defendant).

      Timothy J. Sugrue, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Juliett Crawford, assistant state’s attorney, for the appellee (state).
   Norcott, J.

The defendant appeals from the judgment of conviction rendered after a jury trial on an information alleging, in counts one through eight, sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1) and, in counts nine through sixteen, risk of injury to a child in violation of General Statutes § 53-21. He raises the following four claims of error on appeal: (1) the prosecutor’s misconduct during the trial deprived him of his constitutional right to an impartial jury and a fair trial; (2) the trial court erred in allowing the prosecution to raise the defendant’s prior conviction of robbery during the cross-examination of a noncharacter defense witness; (3) the trial court erred in its instruction to the jury by removing an essential element of the crime from its consideration; and (4) the trial court erred by failing to give the jury a fact specific unanimity charge. We find error in part.

The jury could reasonably have found the following facts. For several years, the defendant spent much of his time in the company of minor boys, including the two victims who testified at trial. He would allow the boys access to his house and the boys would go there frequently. He would take them to various places including church, the beach and the park.

On April 21,1986, thirteen year old J was alone with the defendant in the defendant’s bedroom. The defendant asked J to allow him to perform fellatio on him, and J permitted the defendant to do so. The defendant gave J $10 after the completion of the act. On April 30, in his living room, the defendant again performed fellatio on J. The defendant also asked J to engage in anal intercourse with him, but J refused.

During the months of March and April, 1986, the defendant performed fellatio on another thirteen year old victim, M, while they were alone in the defendant’s apartment. There were between five and twenty of these encounters. M, upon the defendant’s request, engaged in anal intercourse with the defendant on more than one occasion. The defendant sometimes would give M money after the acts were completed.

On April 30,1986, the date of one of the alleged sexual assault incidents involving J and the defendant, J’s mother and her friend went to the defendant’s house to find J. There they observed the defendant, J, and six or seven other children who appeared to be under the influence of alcohol or drugs. The women detected the odor of marihuana and observed beer cans in the apartment. J said that the defendant sent him to buy drugs. M said that while at the defendant’s home he had consumed beer and smoked marihuana.

Other minor boys who associated with the defendant testified that he never had acted in an inappropriate manner toward them, and they felt confident that he would not have done the things with which he was charged. In addition to the boys, several parents and grandparents testified that they had the utmost confidence in the defendant and, given their knowledge of and association with him, they would have no reservations in allowing their children to be in the defendant’s company.

I

The defendant first claims that the prosecutor’s misconduct, alleged to have occurred repeatedly throughout the trial and particularly during her summation, deprived him of his state and federal constitutional rights to a fair trial. The defendant concedes that he failed properly to preserve this claim during trial, but argues that it should be reviewed under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), or the plain error doctrine. Practice Book § 4185.

“Review of unpreserved claims of prosecutorial misconduct has been reserved for instances where the claimed misconduct was part of a pattern of misconduct repeated throughout the trial or was blatantly egregious. State v. Williams, 204 Conn. 523, 537, 529 A.2d 653 (1987); State v. Reddick, 15 Conn. App. 342, 354-55, 545 A.2d 1109, cert. denied, 209 Conn. 817, 551 A.2d 758 (1988).” State v. Horne, 19 Conn. App. 111, 128, 562 A.2d 43 (1989). Our review of the record with regard to all but one of the defendant’s asserted claims of misconduct does not convince us that the prosecutor engaged in “a pattern of repeated, strident and serious misconduct”; State v. Rodgers, 207 Conn. 646, 653, 542 A.2d 1136 (1988); or that the prosecutor’s comments and inferences constituted the type of “ ‘character assassination and vitriolic personal attacks that [our Supreme Court has] held to constitute a denial of the constitutional due process right [and] a fair trial.’ ” State v. Smith, 209 Conn. 423, 429, 551 A.2d 742 (1988), quoting State v. Rodgers, supra, 654.

One of the challenged remarks, however, implicates the defendant’s right to have the state prove his guilt beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). The defendant contends that the prosecutor, in her remarks to the jury, shifted the burden of proof of guilt from the state to the defendant.

In her closing argument, the prosecutor said, “The role of the defense counsel is to put doubt in your mind.” In her rebuttal, she reiterated, “Defense counsel’s role is to create some kind of doubt in your minds. He is creating confusion, and I think he is doing an admirable job.”

Although the defendant characterizes these remarks as having shifted the burden of proof, we conclude that, the comments, at worst, had the potential of misleading the jury on this issue. The two challenged remarks were only isolated instances in the state’s lengthy summation. Against these comments, the trial court gave the jury thorough and proper instructions on the burden of proof and the presumption of innocence. We conclude that any possible misleading effect of the prosecutor’s isolated remarks was cured by the court’s instructions and did not affect the fairness of the trial.

Because we conclude that the prosecutor’s actions did not rise to the level of an exceptional circumstance as contemplated in State v. Evans, supra, and its progeny, and that they did not precipitate a “truly extraordinary [situation] where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings”; State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985); in which plain error is noticed, we decline further review of this claim.

II

The defendant next claims that the trial court erred in permitting the prosecution to ask a defense witness if his opinion of the defendant would change if he knew that the defendant had been convicted of a felony. The defendant objected and excepted to this question. The defendant concedes that the defendant’s prior conviction is admissible on cross-examination of a character witness to test the credibility of that witness. He claims, however, that the defense witness questioned, Y, was not a character witness.

“Character may be proved by testimony concerning the accused’s general reputation in the community as to the trait. . . . The law in this state also allows proof of character by the testimony of those who have had an opportunity to form, and have formed, an opinion as to whether the accused possessed a particular character trait.” (Citation omitted.) State v. Martin, 170 Conn. 161, 163, 365 A.2d 104 (1976). Although the defendant claims that V was not a character witness, defense counsel established that V had enough knowledge of the defendant upon which to base an opinion about him. On direct examination, defense counsel asked V, “Ever since you have known him, would you believe he has done something wrong since you have known him,” to which V responded, “He would not do that.”

Although there is no talismanic question that marks a witness as a character witness, the context of the question and answer in the present case leads to our conclusion that the trial court properly concluded that the witness was a character witness. Defense counsel’s questions would have been irrelevant if he did not intend the witness’ responses to relate to the defendant’s character. Defense counsel was clearly asking V if, on the basis of his opinion of the defendant, he felt the defendant could have committed the alleged acts. We conclude that the defendant’s argument that V was not a character witness is without merit.

Having concluded that the trial court did not err in labeling V a character witness for the purpose of deciding the parameters of the cross-examination, we find no error in the admission of questions regarding the defendant’s convictions. “If the accused offers evidence of a trait of character as circumstantial evidence to prove that he acted in conformance with that trait and that it is unlikely he committed the crime charged, then the prosecution may offer evidence to disprove the existence of the trait.” State v. Martin, supra; State v. Apostle, 8 Conn. App. 216, 229, 512 A.2d 947 (1986). “When a character witness has given his opinion as to a particular trait, the state may cross-examine that witness concerning specific acts, not to prove the truth of such facts, but to test the credibility of the character witness by ascertaining his good faith, his source and amount of information and his accuracy. . . . When, on cross-examination, questions as to specific acts are asked for that purpose, they are not objectionable.’’(Citations omitted.) State v. Martin, supra, 165.

III

The defendant’s third claim of error is that the trial court erred in its instructions to the jury on the elements of risk of injury. The defendant claims that the trial court removed an essential element of the crime from the jury’s consideration. The defendant did not file a request to charge or except to the jury instructions. Acknowledging that this claim has not been properly preserved for appellate review, the defendant seeks review under State v. Evans, supra, claiming that he was denied his right to a fair trial. Because the defendant’s claim involves his fundamental right to a fair trial and the requirement that the state must prove each element of the crime charged, we review his claim under Evans. State v. Vessichio, 197 Conn. 644, 648-49, 500 A.2d 1311 (1985), cert. denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed. 2d 187 (1986); State v. Payne, 12 Conn. App. 408, 411-12, 530 A.2d 1110 (1987).

When the crime of risk of injury involves the allegation of an act, it requires proof beyond a reasonable doubt of the following elements: (1) that the victim was less than sixteen years old; (2) that the defendant perpetrated an act upon the victim; (3) that the act was likely to be injurious to the victim’s health; and (4) that the defendant had a general criminal intent to perform the act. See General Statutes § 53-21; State v. Martin, 189 Conn. 1, 7-8, 454 A.2d 256, cert. denied, 461 U.S. 933, 103 S. Ct. 2098, 77 L. Ed. 2d 306 (1983).

The defendant claims that the trial court erred in instructing the jury that “[i]t is the act itself which determines whether or not there has been a violation of the statute.” The defendant argues that this instruction removed from the jury’s consideration the issue of whether the act was likely to impair the morals and health of children. In order to determine whether the challenged statement was, in fact, error, we must look at the charge as a whole, without looking at any one statement in isolation. State v. Quintana, 209 Conn. 34, 51, 547 A.2d 534 (1988); State v. Petterson, 17 Conn. App. 174, 184, 551 A.2d 763 (1988).

The trial court’s instruction actually read as follows: “[T]he second class of conduct refers to doing an act likely to impair the health or morals of the child .... Under this part the defendant need not specifically intend to impair the health or morals of the child. It is the act itself which determines whether or not there has been a violation of the statute. The inquiry under the second provision is whether the defendant did any act which was likely to impair the morals of the child.” Examining the trial court’s challenged instruction in the context of the entire charge, we find that the trial court instructed the jurors that, if they found that the act was likely to impair the health and morals of the child, and the defendant intended the act, then the state had met its burden. It is clear that the trial court did not remove from the jury’s consideration the element that the act must be likely to impair the health and morals of the minor boys.

The defendant’s claim that this issue constitutes plain error is unpersuasive as well. As stated above, review under the plain error doctrine is reserved for extraordinary cases in which the error is so obvious that it affects the fairness and integrity of the trial. State v. Hinckley, supra, 87. That is not so in the present case, and we conclude that the claim of plain error is without merit.

IV

The defendant’s final claim is that the trial court erred in failing to instruct the jurors that they were required to agree unanimously on the defendant’s conduct that constituted risk of injury to a child in violation of General Statutes § 53-21. Once again, the defendant contends that this claim is reviewable under State v. Evans, supra, even though trial counsel did not properly preserve the claim for appeal by requesting a specific unanimity charge or excepting to the charge delivered by the court. Practice Book §§ 852, 854. Recently, our Supreme Court held that “because the right to a unanimous verdict is a fundamental right and implicates the defendant’s right to a fair trial, we will review an unpreserved claim that the trial court’s instructions violated the defendant’s right to a unanimous verdict. State v. Suggs, 209 Conn. 733, 760, 553 A.2d 1110 (1989); State v. Evans, [supra].” State v. Spigarolo, 210 Conn. 359, 388, 556 A.2d 112 (1989). We therefore review this claim to determine whether the defendant’s rights were violated and, if so, whether the judgment must be reversed.

The defendant was charged with, and the state presented evidence on, eight counts of risk of injury. On seven of those, the state attempted to show that the defendant had engaged in sexual acts with the victims. As to the remaining risk of injury count, the tenth count, however, the state presented evidence that the defendant had performed a sexual act with the victim, J, and that, on the same day, J had attended a party given by the defendant at which the defendant had provided a number of boys access to alcohol and marihuana.

The sixth amendment to the United States constitution guarantees criminal defendants charged with committing nonpetty offenses the right to a unanimous verdict when the jury consists of six members. Burch v. Louisiana, 441 U.S. 130, 138, 99 S. Ct. 1623, 60 L. Ed. 2d 96 (1979); State v. Bailey, 209 Conn. 322, 332, 551 A.2d 1206 (1988); State v. Benite, 6 Conn. App. 667, 671, 507 A.2d 478 (1986); see Practice Book § 867. “ ‘In essence, the unanimity requirement as enunciated in [United States v. Gipson, 553 F.2d 453 (5th Cir. 1977)] and its progeny requires the jury to agree on the factual basis of the offense. The rationale underlying the requirement is that a jury cannot be deemed to be unanimous if it applies inconsistent factual conclusions to alternative theories of criminal liability.’ State v. Bailey, supra, 334. ‘ “Where a trial court charges a jury that the commission of any one of several alternative acts would subject a defendant to criminal liability, a unanimity charge on a specific act is required only if two conditions are met: (1) the alternative acts are conceptually distinct from each other; and (2) the state has presented supporting evidence on each alternative act. State v. Benite, supra, 674-75.” (Emphasis in original.) [State v. Flynn, 14 Conn. App. 10, 38, 539 A.2d 1005, cert. denied, 488 U.S. 891, 109 S. Ct. 226, 102 L. Ed. 2d 217 (1988)].’ State v. Bailey, supra, 334.” State v. Spigarolo, supra, 389-90.

Our Supreme Court has construed General Statutes § 53-21 “ ‘to proscribe two general types of behavior likely to injure physically or to impair the morals of a minor under sixteen years of age: (1) deliberate indifference to, acquiescence in, or the creation of situations inimical to the minor’s moral or physical welfare . . . and (2) acts directly perpetrated on the person of the minor and injurious to his moral or physical well-being.’ (Citation omitted.) State v. Dennis, 150 Conn. 245, 250, 188 A.2d 65 (1963).” State v. James, 211 Conn. 555, 582, 560 A.2d 426 (1989).

By offering evidence that, on April 30, 1986, the defendant engaged in a sexual act with the victim, J, and also entertained J and other minor boys at a party at which alcohol and marihuana were made available, the state presented to the jury both types of conduct proscribed under § 53-21. Because the trial court did not charge the jury that they were required to agree unanimously on which of the two alleged types of behavior they found the defendant committed, or that the defendant committed both of the proscribed behaviors, a reasonable possibility remains that not all of the jurors convicted the defendant on the basis of the same actus reus.

There is error in part, the judgment of conviction on the tenth count alone is set aside and the case is remanded to the trial court for a new trial on that count.

In this opinion the other judges concurred.

       The defendant has launched a scattershot attack, claiming, for example, that in the prosecutor’s closing argument she “made highly inflammatory comments, referred to facts not in evidence, misstated pertinent evidence, vouched for the truthfulness of the victim’s stories, negatively opined as to the credibility of defense witnesses, inferred that defense witnesses had lied, suggested that the defendant and certain defense witnesses had coerced other witnesses not only to testify favorably for the defense but also to switch from being a state’s witness to a defense witness, shifted the burden of proof, and opined as to the guilt of the defendant.”

       The following are excerpts of the trial court’s charge to the jury: “Certain things are not evidence . . . you may not consider them in deciding what the facts are.
      “These things include the arguments and statements of the lawyers. . . .
      “The burden of proving the defendant guilty of the crimes with which he stands charged is upon the state. The defendant does not have to prove his innocence.
      “This means that the state must prove beyond a reasonable doubt, and I will define that term for you later, each and every element of the crime charged. . . .
      “As I said earlier in this case and in all criminal cases, the defendant is presumed to be innocent until proven guilty beyond a reasonable doubt. . . .
      “It is not enough for the state to make out a case of probable guilt, but the burden on the state, which never shifts, is to prove the accused guilty beyond a reasonable doubt. ...”

       During the direct examination, defense counsel asked foundational questions such as, “[h]ave you spent a lot of time with Mr. Ostolaza,” “[d]o you feel he was like a member of your family,” and “[w]ould you say that you know him pretty well?”

       “[General Statutes] Sec. 53-21. injury or risk of injury to, or impairing MORALS OF, CHILDREN. Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       Because the jury was presented with evidence only of sexual acts on the other seven counts in the information charging the defendant with committing the crime of risk of injury to a child, the defendant was not entitled to a specific unanimity instruction on those counts.

       Practice Book § 867 provides in relevant part: ‘The verdict shall be unanimous and shall be announced by the jury in open court.”


author: Borden, J.

text:
    Benjamin I. Tedesco v. City of Stamford et al.
    (7322)
    Dupont, C. J., Borden and Daly, Js.

      Argued June 7
    decision released September 19, 1989

      James V. Minor, assistant corporation counsel, with whom, on the brief, was Mary E. Sommer, corporation counsel, for the appellants-appellees (named defendant et al.).

      Christopher R. Bello, with whom were Thomas M. Cassone and, on the brief, Lawrence M. Lapine, for the appellee-appellant (plaintiff).
   Borden, J.

The defendants appeal from the judgment, after a trial to the court, awarding the plaintiff damages and attorney’s fees under 42 U.S.C. § 1983. In his cross appeal, the plaintiff claims that the trial court erred in its calculation of damages, and he further asserts that he is entitled to a new trial regarding damages if the defendants prevail on their appeal. The dispositive issue is whether the trial court erred in concluding that the plaintiff alleged and proved a cause of action under 42 U.S.C. § 1983, and in awarding damages and attorney’s fees therefor. We find error on the appeal, and dismiss the cross appeal as moot.

The following facts were either found by the court or were not in dispute. The plaintiff was a trash collector employed in the sanitation department of the city of Stamford. His position was classified as “laborer I,” which meant that his primary responsibility entailed removing trash from the street curb and placing it in the truck. By virtue of his seniority and his holding a class II driver’s license, the plaintiff occasionally drove the truck when one of the regular drivers was unavailable. On September 11,1980, while in the performance of his duties, the plaintiff sustained a torn rotator cuff in his right shoulder. On January 30, 1981, after an unsuccessful course of nonsurgical treatment, the plaintiff underwent surgery. The plaintiff did not return to work after his injury, although he remained on the city payroll and received his full salary. When the arm failed to improve significantly, the plaintiff underwent a second operation, on November 30, 1981. On that same day, the city sent the plaintiff notice that his employment was terminated.

On December 7,1981, the plaintiff filed a grievance with the Teamsters Local Union No. 145 (union). On December 12, 1981, the plaintiffs union representatives met with the city officials responsible for terminating the plaintiff, in order to discuss the plaintiffs grievance. The plaintiff’s grievance was denied. Thereafter, the union refused to pursue the plaintiff’s grievance before the Connecticut board of mediation and arbitration because, in the union’s view, the plaintiff’s case was too weak. The plaintiff made numerous attempts to secure a hearing with the city regarding his discharge, pursuant to the employment appeals provision of the city charter, § 740.1. All of his requests were denied.

The plaintiff brought the present action by a complaint dated August 31, 1982. A jury trial was commenced April 21,1988. On the basis of legal arguments made to the court between April 21 and April 29, the court dismissed the jury and tried only the first count against the city of Stamford. During that first trial, the court ruled that the complaint stated a cause of action under 42 U.S.C. § 1983. That trial ended in a mistrial. After the first trial, the city moved for summary judgment, claiming, inter alia, that the plaintiff had no cause of action against the city under 42 U.S.C. § 1983 for substantive and procedural reasons.

The court denied the city’s motion for summary judgment, and a second court trial commenced July 14, 1988. The court again tried only the first count against the city of Stamford. During the course of that trial, the court dismissed the second and third counts of the complaint. See footnote 1, supra. The court, in oral decisions from the bench and in a subsequent written memorandum of decision, found that the city deprived the plaintiff of his constitutionally protected expectation to continued employment without affording him sufficient due process. The court rendered a judgment against the city, the personnel appeals board and James Rosecrans, awarding the plaintiff compensatory damages and attorney’s fees. See footnote 1, supra. The city appealed.

The city claims that the trial court erred in concluding that the first count of the amended complaint stated a cause of action against the city under the Civil Rights Act of 1871, 42 U.S.C. § 1983, and in awarding damages and attorney’s fees pursuant to that cause of action. We agree.

The first count of the plaintiff’s original complaint alleged that the city deprived the plaintiff of his rights to due process when it terminated his employment without permitting the plaintiff to appeal his termination to the city’s personnel appeals board. Specifically, in paragraphs eight and nine of the first count, the plaintiff quoted the sections of the city charter that set forth the appeal procedure, and in paragraph ten the plaintiff stated that the city’s personnel appeals board “refused to grant the Plaintiff a hearing under Section 740.1 despite the Plaintiff’s requests. ” See footnote 2, supra. In paragraph twelve, the plaintiff alleged that “the Personnel Appeals Board’s decision and action, in failing to hear the Plaintiff’s appeal, in failing to exercise its jurisdiction, and in failing to afford the Plaintiff a hearing . . . denies the Plaintiff his rights as an employee of the City of Stamford; it is in violation of the established employment practices of the City and it denies the Plaintiff due process of law, equal protection of the laws [and] violates Plaintiff’s rights under the United States Constitution, the Constitution of the State of Connecticut, the Charter of the City of Stamford [and] federal and state law . . . .”

“To state a claim under section 1983, the complaint must allege that the defendant deprived plaintiff of a right secured by the Constitution or laws of the United States and that such deprivation was committed by persons acting under color of state law. Gomez v. Toledo, 446 U.S. 615, 640, 100 S. Ct. 1920, 64 L. Ed. 2d 572 (1980) .... Where, as here, the right alleged to have been denied is protected by the fourteenth amendment, the plaintiffs must establish that the deprivation was without due process of law. Gendalia v. Gioffre, 606 F. Sup. 363, 366 (S.D.N.Y. 1985).” (Citation omitted.) Costello v. Fairfield, 811 F.2d 782, 784 (2d Cir. 1987). Moreover, in order to state a § 1983 claim against a municipality, the complaint must allege that the deprivation occurred through the operation of “ ‘a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers.’ Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690 [98 S. Ct. 2018, 56 L. Ed. 2d 611] (1978).” St. Louis v. Praprotnik, 485 U.S. 112, 121, 108 S. Ct. 915, 99 L. Ed. 2d 107 (1988). Under Monell, § 1983 also authorizes suit “ ‘for constitutional deprivations visited pursuant to governmental “custom” even though such a custom has not received formal approval through the body’s official decisionmaking channels.’ [Monell v. New York City Dept. of Social Services, supra] 690-91.” St. Louis v. Praprotnik, supra.

Thus, in order to have stated a valid cause of action under 42 U.S.C. § 1983, the plaintiffs complaint must have alleged facts to support each essential element of his § 1983 cause of action. See Burns v. Koellmer, 11 Conn. App. 375, 381-85, 527 A.2d 1210 (1987). “It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations in his complaint. Kowasaki Kisen Kaisha, Ltd. v. Indomar, Ltd., 173 Conn. 269, 272, 377 A.2d 316 (1977) .... Tacts found but not averred cannot be made the basis for a recovery.’ Malone v. Steinberg, 138 Conn. 718, 721, 89 A.2d 213 (1952).” (Citations omitted.) Francis v. Hollauer, 1 Conn. App. 693, 695, 475 A.2d 326 (1984); Seymour Housing Authority Tenants Assn. v. Housing Authority, 18 Conn. App. 393, 404 n.10, 558 A.2d 1002 (1989). Upon examining the complaint, we conclude that it does not state a cause of action under § 1983.

The complaint cannot be read to support a § 1983 cause of action because it failed even to imply, let alone affirmatively allege, that any deprivation that occurred was attributable to the operation of a municipal governmental policy, ordinance, regulation, or officially adopted and promulgated decision. See Monell v. New York City Department of Social Services, supra, 690. Indeed, the complaint alleges precisely the opposite, namely, that the city charter secured the plaintiff the right to an appeal process, but that city officials in this particular instance refused him access to that process “in violation of the established employment practices of the City . . . . ”

We note further that the complaint is devoid of facts that would support a “custom” theory and that the allegation in the complaint of a single act by the personnel appeals board in refusing to hear the plaintiff’s appeal will not suffice to prove that such an action was customary for that body. Appletree v. Hartford, 555 F. Sup. 224, 228-29 (D. Conn. 1983); Rivera v. Farrell, 538 F. Sup. 291, 297 n.10 (N.D. Ill. 1982).

The only issues raised in the plaintiffs cross appeal concern the trial court’s failure to calculate properly the compensatory damages awarded the plaintiff under his § 1983 cause of action. Because we find that the complaint did not state a cause of action under that statute and that the trial court erred in awarding damages based on that cause of action, the plaintiff’s claims of error regarding a deficiency in that damage award are moot.

There is error on the appeal, the judgment is set aside as to the first count and the case is remanded with direction to render judgment for the defendants, the city of Stamford, the personnel appeals board of the city of Stamford, and James Rosecrans, on the first count of the complaint. The cross appeal is dismissed as moot.

In this opinion the other judges concurred.

       The first count of the complaint, which is subtitled “As to the Defendant City of Stamford,” named as defendants the city of Stamford, the city’s personnel appeals board and James Rosecrans, the cochairman of the personnel appeals board. The complaint did not allege that Rosecrans, in his individual capacity, violated the plaintiff’s due process rights. “ ‘[OJffieial-capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent.’ Monell v. New York Department of Social Services, 436 U.S. 658, 690 n.55, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978).” Brandon v. Holt, 469 U.S. 464, 472 n.21, 105 S. Ct. 873, 83 L. Ed. 2d 878 (1985). Indeed, other than simply alleging that Rosecrans “is Co-Chairman of the Personnel Appeals Board of the City of Stamford,” the complaint is bereft of any allegations of conduct by Rosecrans. We therefore view Rosecrans, the personnel appeals board, and the city to be subsumed as defendants under the blanket concept of “the city”; id., 472; and we refer to them collectively as the city.
      The second count of the complaint alleged that the Teamsters Local Union No. 145 was liable for refusing to prosecute the plaintiffs grievance before the Connecticut board of mediation and arbitration. The third count was directed at both the city and the union. Both the second and third counts were dismissed by the trial court, and their dismissal has not been challenged on appeal. Thus, only the judgment on the first count is before us on this appeal, and the union has no further interest in this case.

       Section 740.1 of the Stamford city charter provides: “Wherever used in this Chapter, the word ‘employee’ shall mean all employees and officers of the City of Stamford, except elected officials and those persons appointed by the Mayor to serve at his pleasure. Any municipal employee may be suspended, demoted in rank or grade or discharged by the appropriate superior upon written notice specifically setting forth reasons. Notice in writing of such action shall be reported to the Personnel Director immediately. If such municipal employee intends to appeal the action, he shall notify, in writing, the Personnel Director and the Personnel Appeals Board of his intention within five working days of the date of such suspension or demotion. Within a reasonable time, which shall not exceed thirty (30) days of receipt of notification, the Board shall hold a hearing at which the employee may be represented by counsel. Said hearings shall be open or closed at the option of the employee.”

       This count of the original complaint was not altered despite subsequent amendments and additions to other portions of the complaint.