text:
    Simon Ostolaza v. Warden
    (9612)
    Norcott, Lavery and Maiocco, Js.
    Argued December 2, 1991
    decision released February 25, 1992

      Susan M. Hankins, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (petitioner).

      Julia DiCocco Dewey, 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 (respondent).
   Norcott, J.

The petitioner, Simon Ostolaza, was found guilty after a jury trial of eight counts of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1), and eight counts of risk of injury to a minor in violation of General Statutes § 53-21. On February 27, 1987, the trial court sentenced the petitioner to seven years imprisonment for each count, to run consecutively, for a total effective sentence of 112 years. The facts regarding this particularly disturbing sexual assault of two minor boys are fully set out in State v. Ostolaza, 20 Conn. App. 40, 564 A.2d 324, cert. denied, 213 Conn. 808, 568 A.2d 793 (1989), and need not be repeated here.

On appeal from this judgment of conviction, this court affirmed all but one count of the petitioner’s conviction and reduced the petitioner’s sentence to 105 years. See State v. Ostolaza, supra.

On May 2, 1987, during the pendency of his direct appeal, the petitioner filed a petition for a writ of habeas corpus in the Superior Court for the judicial district of Tolland. The third amended petition alleged ineffective assistance of counsel during the petitioner’s trial. After a full hearing, the habeas court, Kaplan, J., denied the petitioner’s application for habeas relief. The petitioner now appeals to this court from the judgment of the habeas court, claiming that the habeas court failed (1) to find that the petitioner had ineffective assistance of counsel as to his decision not to testify at trial, (2) to find that trial counsel had incompetently investigated the case and prepared a defense, (3) to find that the trial court had improperly closed the court during a witness’ cross-examination, and (4) to reopen the evidence. We affirm the judgment of the habeas court.

It is axiomatic that “[t]he petitioner, as the plaintiff in a habeas corpus proceeding, bears a heavy burden of proof”; Lubesky v. Bronson, 213 Conn. 97, 110, 566 A.2d 688 (1989); see also Hayes v. Maggio, 699 F.2d 198 (5th Cir. 1983); and that the claimed error of law must constitute “a fundamental defect which inherently results in a miscarriage of justice. . . .” Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 7 L. Ed. 2d 417 (1962). Habeas corpus provides an extraordinary legal remedy for illegal detention; McClain v. Robinson, 189 Conn. 663, 668, 457 A.2d 1072 (1983); and should be available to those “ ‘whom society has grievously wronged.’ ” Kuhlman v. Wilson, 477 U.S. 436, 447, 106 S. Ct. 2616, 91 L. Ed. 2d 364 (1986). It is against these standards that we measure the petitioner’s claims.

The petitioner first makes a broad attack on the effectiveness of his trial counsel. His first two claims are somewhat interrelated in that he argues that the habeas court failed to find (1) that his trial counsel rendered ineffective assistance with respect to his decision not to testify at trial and (2) that counsel incompetently investigated the case and prepared an inadequate defense. Our Supreme Court has made clear that to succeed in his claim of ineffective assistance of counsel, the petitioner must show that his attorney’s performance was not “ ‘reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law’ State v. Clark, 170 Conn. 273, 283, 365 A.2d 1167, cert. denied, 425 U.S. 962, 96 S. Ct. 1748, 48 L. Ed. 2d 208 (1976), quoting Gentry v. Warden, 167 Conn. 639, 646, 356 A.2d 902 (1975); and that this “ ‘lack of competency contributed to the conviction.’ ” State v. Clark, supra; Levine v. Manson, 195 Conn. 636, 639, 490 A.2d 82 (1985). Furthermore, our Supreme Court has adopted the two-pronged test for ineffectiveness of counsel set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). That test requires a conclusive showing that (1) the attorney’s performance was so deficient and the errors made by counsel were so egregious that the attorney was not functioning as counsel; id., 687; and (2) there exists “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id., 694. Thus, added to the petitioner’s heavy burden of proof is the requirement that there be a showing of prejudice that had an effect on the judgment. United States v. Frady, 456 U.S. 152, 170, 102 S. Ct. 1584, 71 L. Ed. 2d 816 (1982).

As part of his first argument, the petitioner attacks the habeas court’s refusal to find that his trial counsel should have filed a pretrial motion in limine which, he contends, would have aided him in his decision whether to testify at trial. As a corollary to this argument, the petitioner claims that the habeas court wrongfully con-eluded that his counsel did not abandon his duty to advise him properly on the decision whether to testify. Neither of these claims has merit.

I

Trial Counsel’s Pretrial Decisions and Advice

The petitioner’s first claim is that his trial counsel’s failure to file a motion in limine in order (1) to obtain a ruling concerning the admissibility of his prior convictions and (2) to assess the exercise of his right to testify constituted ineffective assistance of counsel to his prejudice. After a full hearing, the habeas court found no merit to these claims. We agree.

At the habeas trial, the court heard all of the petitioner’s evidence relevant to this claim and concluded that “trial counsel’s advice concerning the admissibility of the prior convictions and the ‘pros and cons’ of testifying constituted sound professional judgment.” When the conclusions of the habeas court are attacked on appeal, they are reviewed to determine whether they are legally and logically supported by the facts or involve an erroneous application of law materially relevant to the case. Parham v. Warden, 172 Conn. 126, 131, 374 A.2d 137 (1976); Tyson v. Warden, 24 Conn. App. 729, 736, 591 A.2d 817, cert. denied, 220 Conn. 909, 597 A.2d 340 (1991).

Here, the habeas court reviewed the relevant law regarding the impeachment of the defendant as a witness by proof of prior convictions of crimes for which imprisonment may be more than one year. See General Statutes § 52-145 (6); State v. Hamele, 188 Conn. 372, 383, 449 A.2d 1020 (1982); State v. Nardini, 187 Conn. 513, 521, 447 A.2d 396 (1982). It then applied that law to certain relevant facts before it and concluded that “some evidence of the prior convictions would have been allowed to impeach Ostolaza’s testimony.” More relevant were the facts that (1) the petitioner had initially given his trial counsel a false name (Simon Robles) and (2) his record reflected recent convictions for murder and robbery. The habeas court also reasoned that the petitioner’s robbery conviction, in particular, would have been admissible to attack his credibility because such a crime has long been held to bear on the credibility of one who has been convicted of it. State v. Harrell, 199 Conn. 255, 263, 506 A.2d 1041 (1986). Furthermore, the habeas court determined that the probative value of such convictions often outweighs any prejudice engendered by their admission. We find nothing improper in the habeas court’s conclusion that the trial counsel’s advice concerning the admissibility of the prior conviction constituted adequate professional judgment.

Similarly, we find that the court’s conclusion as to trial counsel’s advice that the defendant should not testify is fully supported by the record. It is the right of every criminal defendant to testify on his own behalf; Rock v. Arkansas, 483 U.S. 44, 49, 107 S. Ct. 2704, 97 L. Ed. 2d 37 (1987); and to make that decision after full consultation with trial counsel. See State v. Davis, 199 Conn. 83, 93, 506 A.2d 86 (1986). Equally axiomatic is the proposition that an accused must take some affirmative action regarding his right to testify. United States v. Systems Architects, Inc., 757 F.2d 373, 375 (1st Cir.), cert. denied, 474 U.S. 847, 106 S. Ct. 139, 88 L. Ed. 2d 115 (1985); State v. Paradise, 213 Conn. 388, 405, 567 A.2d 1221 (1990).

It is clear from a review of the record that the habeas court correctly determined that this claim was merit-less. First, the petitioner never evinced any desire to testify at trial. The habeas court found that trial counsel’s advice regarding the pros and cons of the decision to testify was sound: “If Ostolaza did choose to testify, he would have been subject to attack based upon (1) his robbery conviction, (2) the fact that he was working under an assumed name and false social security number while collecting workman’s compensation, (3) claims of burglary and tampering with a witness that allegedly occurred during the trial, and (4) the possibility of some reference to his murder conviction.” Second, because the nature of the petitioner’s attack on the integrity of the trial is collateral in nature, he must establish that he was deprived of due process and that a fundamental defect existed at trial concerning this claim that “inherently result[ed] in a complete miscarriage of justice . . . .” Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 7 L. Ed. 2d 417 (1962). This the petitioner cannot do here.

Finally, we find that the petitioner’s claim that the habeas court wrongfully concluded that he had waived his right to testify must fail. Consistent with our previous discussion regarding his right to testify, the record supports the habeas court’s conclusion that the petitioner, after hearing evidence relating to his prior felony convictions during the examination of certain defense witnesses, voluntarily and knowingly chose not to testify on his own behalf.

II

Adequacy of Pretrial Investigation

The petitioner next attacks the habeas court’s rejection of his claim that his counsel had conducted an inadequate pretrial investigation. He unsuccessfully argued to the habeas court that his trial counsel failed to investigate adequately potential witnesses who would have assisted in his defense and failed to conduct an adequate cross-examination of witnesses. In effect, the petitioner attacks the entire trial preparation, strategy and conduct of his counsel.

“Constitutionally adequate assistance of counsel includes competent pretrial investigation.” Siemon v. Stoughton, 184 Conn. 547, 554, 440 A.2d 210 (1981). The failure to conduct an adequate investigation cannot be excused in the penumbra of trial tactics. Id., 556. While it is incumbent on a trial counsel to conduct a prompt investigation of the case and “explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction”; id. n.3; counsel need not track down each and every lead or “ ‘personally investigate every evidentiary possibility before choosing a defense and developing it.’ Sullivan v. Fairman, [819 F.2d 1382, 1392 (7th Cir. 1987)].” Montgomery v. Petersen, 846 F.2d 407, 413 (7th Cir. 1988).

The habeas court found that the trial counsel adequately conducted a “thorough investigation of the facts relevant to the charges and defenses.” In a habeas corpus proceeding, the petitioner’s burden of proving that a fundamental unfairness had been done is not met by speculation but by demonstrable realities. Adams v. United States, 317 U.S. 269, 281, 63 S. Ct. 236, 87 L. Ed. 268 (1942). One cannot successfully attack, with the advantage of hindsight, a trial counsel’s trial choices and strategies that otherwise constitutionally comport with the standards of competence. Here, the record reveals many significant factors that support the habeas court’s conclusion that petitioner’s trial counsel adequately conducted an investigation and exhibited reasonable competence in this case.

The petitioner claims that his counsel’s representation was inadequate because he failed to investigate and prepare two possible defenses, namely, the so-called “church” or good character defense, and a “work” defense, in the nature of a partial alibi. The defenses were predicated on the alleged testimony of some four hundred witnesses and records allegedly left uninvestigated by trial counsel.

The church defense, in essence, was that the petitioner could demonstrate his good character and exemplary conduct with the victims and other young males during his involvement and participation in many church affairs. The habeas court, presented with very limited facts at the habeas trial, found this claim unavailing. Our review reveals that, in fact, two of the witnesses before the habeas court gave minimally relevant testimony that often related to irrelevant time periods. More important, two witnesses admitted that certain church records, on which parts of their testimony rested, had been altered by one of the witnesses who had conferred with the petitioner prior to the habeas proceeding. In sum, the habeas court received no specific evidence with respect to the names or substance of the almost four hundred missing witnesses whom trial counsel allegedly failed to contact. There also was no showing whatsoever that these witnesses and their testimony would be relevant and admissible, or that they were made available to trial counsel prior to trial. Under the circumstances, it is clear that the habeas court’s finding of fact that the petitioner’s counsel did not give him adequate representation with respect to the church defense must be affirmed.

Similarly, the petitioner’s attack on the habeas court’s finding regarding the so-called work defense also must fail. The habeas court found that counsel’s decision not to pursue a “partial work-alibi defense” was a competent and adequate trial strategy that fell within the Strickland standards. See Strickland v. Washington, supra, 690. The following facts presented to the habeas court support its rejection of the petitioner’s argument in this regard: (1) the petitioner’s work schedule constituted only a partial alibi that demonstrated his opportunity to commit the crimes charged on several of the days alleged in the information; (2) the petitioner had been working at the Clinton nurseries under an assumed name and a false Social Security number while simultaneously collecting workers’ compensation payments from Southern Connecticut State University; and (3) certain witnesses’ testimony regarding this defense was contradicted by the petitioner’s testimony at the habeas hearing.

The record here clearly supports the habeas court’s conclusion that trial counsel conducted a competent investigation and made informed strategic choices for the trial. The petitioner has failed to satisfy the burden of proof on appeal that the habeas court rejection of his argument that, but for counsel’s failure to pursue the aforementioned defenses, the result of the trial would have been different. Id., 694.

Ill

Closure of the Courtroom

A

The petitioner’s third claim is that the habeas court failed to find that he had ineffective assistance of trial counsel and appellate counsel as a result of its failure to find that the trial court improperly closed the courtroom, thereby denying him his sixth amendment right to a public trial. U.S. Const., amend. VI. Although we agree that the habeas court improperly failed to find that closure occurred, we cannot agree that such a finding would establish ineffectiveness of counsel under the circumstances here.

The following additional facts are necessary to our resolution of this claim. On the second day of trial, when one of the minor complainants was to resume his testimony after a lunch break, the trial court, after a sidebar conference with counsel, gave the following instruction: “Sheriff, because of the nature of the trial and the testimony of the minor, I am going to ask that the court be kept clear of the members of the public and the press. Would you post a note to that effect please?” The testimony of the petitioner’s trial counsel at the habeas proceeding indicates that the trial court’s action was prompted by the earlier entry into the courtroom of an attorney, with whom trial counsel was acquainted, while one of the minor complainants was testifying.

The record indicates that neither the petitioner nor the state requested that the courtroom be closed. It reveals that the trial court did not conduct a hearing on or make findings as to the necessity for closure prior to barring the public and the press. The petitioner's trial counsel also did not object to the court’s action or avail himself of the statutory remedy of an immediate appeal to this court, pursuant to General Statutes § 51-164x. Moreover, this claim was not raised on direct appeal, but was raised for the first time during the habeas proceeding.

In finding that no closure of the courtroom had occurred, the habeas court determined that “the trial court’s temporary and limited order, aimed at avoiding disruption and maintaining decorum in the courtroom, did not implicate” the petitioner’s right to a public trial. It found “no evidence that any persons who were then present in the courtroom were removed from the courtroom and thereby excluded from witnessing the proceedings.” Finally, the habeas court found that even if the petitioner’s right to a public trial was implicated, ‘there was a reasonable basis in fact for a determination that closure was required to maintain order in the courtroom and to foster full and truthful testimony” given the nature of the proceeding and the testimony of the minor complainant.

A defendant’s right to a public trial is guaranteed in all criminal proceedings by the sixth amendment to the United States constitution. Waller v. Georgia, 467 U.S. 39, 46-47, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984). This right is made applicable to the states through the fourteenth amendment; Duncan v. Louisiana, 391 U.S. 145, 148, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968); and also is encompassed in article first, § 8, of the Connecticut constitution. State v. Herring, 210 Conn. 78, 98-99, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989). Public trials vindicate an important public interest in the judicial system and help ensure testimonial trustworthiness. State v. Sheppard, 182 Conn. 412, 415, 438 A.2d 125 (1980). Openness of a criminal trial enhances both its basic fairness and the appearance of fairness, which is essential to public confidence in the system. Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 508, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984); State v. Herring, supra, 99. The right to a public trial, however, is not absolute. Waller v. Georgia, supra, 45; State v. Sheppard, supra. “An accommodation must sometimes be made between the individual’s right to a public trial and other societal interests that might justify closing the courtroom to the public.” State v. Sheppard, supra, 416. In light of these concerns, a court’s power to order a closure of the courtroom should “be sparingly exercised, and limited to those situations where closure is demonstrably necessary to further the administration of justice.” Id.; State v. Herring, supra.

Closure of a criminal trial, therefore, requires that a “compelling need” to exclude the public be demonstrated. State v. Frazier, 185 Conn. 211, 231, 440 A.2d 916 (1981), cert. denied, 458 U.S. 1112, 102 S. Ct. 3496, 73 L. Ed. 2d 1375 (1982); State v. Sheppard, supra, 417. In State v. Kelly, 208 Conn. 365, 545 A.2d 1048 (1988), our Supreme Court declared that “ ‘[t]he presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.’ ” Id., 372, quoting Press-Enterprise Co. v. Superior Court, supra, 510. Further, the closure must be no broader than necessary, and the trial court must first consider reasonable alternatives to closure. State v. Kelly, supra, 372; Waller v. Georgia, supra, 48. When a court fails to make findings adequate to support the closure, a closure order is improper. State v. Kelly, supra; Waller v. Georgia, supra.

In this case, we disagree with the habeas court’s conclusion that no closure occurred. The trial court explicitly barred the public and the press from entry to the courtroom by having a notice posted to that effect. Although the state relies on State v. Herring, supra, in support of its contention that no closure occurred, the situation before us today is distinguishable. In State v. Herring, supra, the trial court ordered the sheriff to post a “Do Not Enter” sign and to lock the courtroom doors. Id., 98. The trial court informed the defendant, who had objected to the court’s actions, that the purpose of closing the courtroom was to ensure that the jury’s concentration would not be disturbed while it was listening to the court’s instructions. Id., 99. On appeal, our Supreme Court found that the trial court’s action did “ ‘not explicitly exclude anybody and [was] designed solely to regulate the ingress and egress of the spectators. . . . Locking the doors during the charge to avoid disruption—allowing those already present to remain—does not seek to exclude the public or frustrate the salutary purposes of public scrutiny.’ ” Id., 100, quoting People v. Colon, 71 N.Y.2d 410, 416, 521 N.E.2d 1075, 526 N.Y.S.2d 932, cert. denied, 487 U.S. 1239, 108 S. Ct. 2911, 101 L. Ed. 2d 943 (1988).

Here, however, the trial court explicitly excluded both the public and the press during a witness’ testimony. There is no indication in the record whatsoever that the trial court was merely seeking to regulate the ingress and egress of spectators or to ensure that the witness was not distracted. Aside from a general reference to “the nature of the trial and the testimony of the minor,” nothing in the record indicates that the trial court first considered reasonable alternatives to closure; State v. Kelly, supra; Waller v. Georgia, supra; or that it articulated specific findings that demonstrated a compelling need to override the petitioner’s right to a public trial. State v. Kelly, supra, 372-74; State v. Sheppard, supra, 417.

Because of the lack of findings, we decline to speculate as to the trial court’s reasons for its closure order. We note, nevertheless, that a substantial or compelling interest may exist in protecting young witnesses who testify in cases involving allegations of sexual abuse. State v. Sheppard, supra, 416-17; State v. Purvis, 157 Conn. 198, 207, 251 A.2d 178 (1968), cert. denied, 395 U.S. 928, 89 S. Ct. 1788, 23 L. Ed. 2d 246 (1969); see also Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607, 102 S. Ct. 2613, 73 L. Ed. 2d 248 (1982). The United States Supreme Court, however, has made clear that any simple blanket rule mandating closure in such cases violates the constitution. See Globe Newspaper Co. v. Superior Court, supra; see also State v. Sheppard, supra, 417 (“We are not prepared to say that every charge of rape involving a complainant who is a minor” warrants closure). The age of an alleged victim, the nature of the alleged offense and the potential for harm to the victim are factors to consider in determining whether closure is proper. United States v. Galloway, 937 F.2d 542, 546 (10th Cir. 1991). Here, however, the trial court did not articulate any findings whatsoever, thereby precluding a reviewing court from determining the propriety of the closure order. See State v. Kelly, supra, 374.

The trial court’s order also was overly broad; State v. Kelly, supra, 372; Waller v. Georgia, supra, 48; in that it excluded the press from hearing a portion of the minor complainant’s testimony when the press had not been barred from the courtroom during prior testimony by the same complainant. As with exclusion of the public from the courtroom, a compelling interest must be demonstrated in articulated findings to justify exclusion of the press. Globe Newspaper Co. v. Superior Court, supra, 606-607; Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 581, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980). We conclude, therefore, that the habeas court improperly failed to find that the trial court ordered closure of the courtroom.

B

We next consider whether the failure of the petitioner’s counsel to raise this claim on direct appeal constitutes ineffective assistance of appellate counsel, thereby requiring a new trial. We conclude that it does not.

We begin first by setting forth the scope of our review. In Valeriano v. Bronson, 209 Conn. 75, 546 A.2d 1380 (1988), our Supreme Court declared that ineffective assistance of appellate counsel claims automatically satisfy the deliberate bypass requirement. Id., 85. When this court reviews a claim of ineffective assistance of appellate counsel on appeal from the habeas court, “it is simpler and more appropriate to move directly to the Strickland test. . . . There is no need to confuse this process by utilizing the cause and prejudice test.” Id., 84-85. Recently, in Johnson v. Commissioner, 218 Conn. 403, 589 A.2d 1214 (1991), our Supreme Court adopted the federal “cause and prejudice” standard enunciated in Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977), for habeas review of constitutional claims not raised at trial.

We adhere to the Strickland test for review of ineffective assistance of appellate counsel claims on appeal from a habeas court for two reasons. First, our Supreme Court in Johnson v. Commissioner, supra, did not expressly or implicitly overrule Valeriano v. Bronson, supra, with respect to the standard of review for claims of ineffective assistance of appellate counsel. Second, the habeas court in this case issued its ruling prior to the time Johnson v. Commissioner, supra, was decided. We note, however, that under either standard— Strickland or cause and prejudice—the petitioner’s claim of ineffective assistance of appellate counsel is without merit.

Under Strickland v. Washington, supra, it must be shown that counsel’s performance was so deficient that he was not functioning as counsel. Id., 687. It must further be shown that a reasonable probability exists that counsel’s errors deprived the defendant of a fair appeal and caused an unreliable conviction to stand. Id.; Valeriano v. Bronson, supra, 82. The petitioner bears the burden to establish that counsel’s conduct falls below the Strickland standard. Quintana v. Warden, 220 Conn. 1, 5, 593 A.2d 964 (1991).

In this case, we must determine whether appellate counsel’s failure to raise the public trial issue on direct appeal fell below the reasonable competence exhibited by attorneys with ordinary training and skill in the criminal law. Levine v. Manson, 195 Conn. 636, 639, 490 A.2d 82 (1985); Giannotti v. Warden, 26 Conn. App. 125, 130, 599 A.2d 26 (1991). We conclude that the actions of the petitioner’s appellate counsel did not fall below that standard.

Whether an issue is raised on appeal is a matter of strategy and tactics that is between the petitioner and his counsel. It is not for a court to second-guess matters of strategy and tactics. Fair v. Warden, 211 Conn. 398, 407, 559 A.2d 1094, cert. denied, 493 U.S. 981, 110 S. Ct. 512, 108 L. Ed. 2d 514 (1989). “ ‘[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.’ ” Williams v. Warden, 217 Conn. 419, 434, 586 A.2d 582 (1991), quoting Strickland v. Washington, supra, 690. Judicial scrutiny must be highly deferential, and a reviewing court acts with a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Chace v. Bronson, 19 Conn. App. 674, 678, 564 A.2d 303, cert. denied, 213 Conn. 801, 567 A.2d 832 (1989).

Although petitioner’s counsel concedes error in failing to raise the public trial issue on direct appeal, the constitution does not guarantee that an attorney will recognize and raise every conceivable constitutional claim. Engle v. Isaac, 456 U.S. 107, 134, 102 S. Ct. 1558, 71 L. Ed. 2d 783 (1982). It also does not guarantee the assistance of an attorney who will make no mistakes. United States v. Campbell, 616 F.2d 1151, 1152 (9th Cir. 1980); Giannotti v. Warden, supra, 130. Defendants are entitled to reasonably professional assistance, not perfect representation. Chace v. Bronson, supra. We conclude that the petitioner has not sustained his burden under the Strickland standard of demonstrating that appellate counsel’s conduct fell below the standard of reasonably effective assistance as measured by the bar generally. Since the petitioner has not met the first prong of the Strickland test, we need not reach the second prong. Strickland v. Washington, supra, 697; Valeriano v. Bronson, supra, 86.

Our conclusion is no different under a “cause and prejudice” analysis. “ ‘[T]he mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default.’ ” Johnson v. Commissioner, supra, 422, quoting Murray v. Carrier, 477 U.S. 478, 486-87, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986); Valeriano v. Bronson, supra, 83. The petitioner must establish cause and prejudice conjunctively in order to obtain relief. Murray v. Carrier, supra, 496-97; Johnson v. Commissioner, supra, 419. Because the petitioner has failed to demonstrate cause, his claim fails. Johnson v. Commissioner, supra; see also Valeriano v. Bronson, supra (petitioner whose claim fails to meet Strickland standard also fails to demonstrate cause).

Finally, the same analysis applies with equal force to the petitioner’s claim of ineffective assistance of trial counsel. The record clearly indicates that trial counsel was aware that our rules of practice contain a provision relating to closure of a courtroom. The record also shows that trial counsel not only did not object to the closure, but in fact agreed with the court’s action. Decisions concerning matters of trial strategy and tactics rest with counsel. “ ‘He, not the client, has the immediate—and ultimate—responsibility of deciding if and when to object. . . . Not only [does such a decision] rest with the attorney, but [it] must, as a practical matter, be made without consulting the client.’ ” (Emphasis in original.) State v. Davis, supra, 95, quoting Wainwright v. Sykes, supra, 93 n.1. The decision of a trial lawyer not to state an objection is not evidence of incompetency. Levine v. Manson, supra, 648. We do not second-guess tactical decisions. Fair v. Warden, supra.

We therefore conclude that the petitioner has not been denied effective assistance of trial counsel or appellate counsel in view of the context of the proceedings as a whole. The trial court’s failure to demonstrate a compelling need to close the courtroom and to make specific findings in support of its action does not automatically warrant a new trial. Cf. Waller v. Georgia, supra, 50 (“the remedy should be appropriate to the violation”). To obtain such relief in the context of this case would require a showing that the petitioner’s attorneys performed below the Strickland standard of reasonably effective assistance. This has not occurred.

IY

Motion to Reopen Evidence

The petitioner’s final claim that the habeas court wrongfully denied his motion to reopen the case after the habeas trial had concluded requires little discussion.

The factual setting of this claim is as follows. Approximately one month after the habeas trial had ended, the petitioner’s counsel conducted an ex parte deposition of one of the minor complainants. During this deposition, the minor allegedly recanted his trial accusations. About two months thereafter, the petitioner moved the habeas court to reopen the case. On February 27, 1990, the habeas court denied the motion, initially questioning the propriety of such a motion after a habeas corpus trial where the principal issue was whether counsel had been ineffective. Nonetheless, the habeas court specifically found that “there [was] no way that trial counsel could be placed on notice that [the] witness would later recant [his] testimony,” and that a petition for a new trial addressed to the trial court was the more appropriate procedural avenue for the petitioner to follow. We agree.

The decision to reopen testimony rests within the sound discretion of the trial court. State v. Sanchez, 200 Conn. 721, 729-30, 513 A.2d 653 (1986). Reversal of that discretion is appropriate where the proponent of the motion to reopen successfully carries the burden of proving that “ ‘an abuse of discretion is manifest or where an injustice appears to have been done.’ ” State v. Holmquist, 173 Conn. 140, 152, 376 A.2d 1111, cert. denied, 434 U.S. 906, 985 S. Ct. 306, 54 L. Ed. 2d 193 (1977). Here, the habeas court reasonably concluded that the respondent’s counsel, who had not participated in the deposition and had no notice of the alleged recanted testimony, would have been placed in an untenable and disadvantaged position. Further, the habeas court noted that one of the two minor complainants had died. The consideration of whatever complications this situation presented for the respondent’s habeas counsel was inherent in the court’s ruling.

Accordingly, we agree with the habeas court’s conclusion that the better remedy for the petitioner to pursue was a petition for a new trial. State v. Murdick, 23 Conn. App. 692, 704-705, 583 A.2d 1318 (1991). This claim does not involve an allegation of ineffective assistance of counsel. Under the circumstances of this case, a witness’ alleged recantation of trial testimony given years before does not require that the habeas court reopen the case. See United States v. DiPaolo, 835 F.2d 46 (2d Cir. 1987).

The judgment of the habeas court is affirmed.

In this opinion the other judges concurred.

       Prior to the jury verdict the trial court granted the petitioner’s motion for judgment of acquittal regarding a charge of tampering with a witness in violation of General Statutes § 53a-151.

       Recently, the Connecticut sentence review division further reduced the petitioner’s sentence to sixty-four years.

       The petitioner’s prison release dates for his prior convictions occurred within ten years of his trial. Therefore, both those convictions would satisfy the “remoteness in time factor” established by rule 609 (b) of the Federal Rules of Evidence and adopted by our Supreme Court. See State v. Hamele, 188 Conn. 372, 384 n.7, 449 A.2d 1020 (1982); State v. Nardini, 187 Conn. 513, 526, 447 A.2d 396 (1982).

       General Statutes § 51-164x provides: “appeal of order prohibiting attendance at court session, (a) Any person affected by a court order which prohibits any person from attending any session of court, except any session of court conducted pursuant to section 46b-ll, 46b-49, 46b-122 or 54-76h or any other provision of the general statutes under which the court is authorized to close proceedings, whether at a pretrial or trial stage, shall have the right to appeal such order by filing a petition for review with the appellate court within seventy-two hours from the issuance of such court order.
      “(b) No such order shall be effective until seventy-two hours after it has been issued, and the filing of any petition for review shall stay the order.
      “(c) The appellate court shall provide an expedited hearing on such petition in accordance with such rules as the judges of the appellate court may adopt, consistent with the rights of the petitioner and the parties to the case.”

       Practice Book § 895 provides: “[control op judicial proceedings]— EXCLUSION OP THE PUBLIC
      “(a) Upon motion of the prosecuting authority or of the defendant, or upon his own motion, the judicial authority may, when constitutionally permissible, order that the public, which may include the news media, be excluded from any portion of a proceeding when there is a substantial likelihood that the presence of the public, including the news media, would unduly inhibit any testimony, or endanger the safety of any witness, or interfere with the defendant's right to a fair trial or when exclusion is required by statute. In jury trials, the probability of publication of the evidence or of any argument adduced at a hearing outside the presence of the jury shall be a sufficient reason for excluding the public, including the news media, from that portion of the trial, upon the ground of interference with the right to a fair trial. The time and date of any such order shall be entered by the court clerk in the court file together with such order. With the exception of orders concerning any session of court conducted pursuant to Gen. Stat. §§ 46b-ll, 46b-49, 46b-122, 54-76h or any other provision of the general statutes under which the court is authorized to close proceedings, no order shall be effective until seventy-two hours after it has been issued.
      “(b) With the exception of orders concerning any session of court conducted pursuant to Gen. Stat. §§ 46b-ll, 46b-49, 46b-122, 54-76h or any other provision of the general statutes under which the court is authorized to close proceedings, any person affected by a court order issued pursuant to paragraph (a) shall have the right to appeal the order within seventy-two hours of its issuance by filing a petition for review with the appellate court pursuant to the appellate court rules. (See Gen. Stat. § 51-164x.)”


source: Caselaw Access Project

author: Foti, J.

license: Public Domain

text:
    State of Connecticut v. Keith Johnson
    (9851)
    Dupont, C. J., Norcott and Foti, Js.
    Argued December 11, 1991
    decision released February 25, 1992

      G. Douglas Nash, public defender, for the appellant (defendant).

      LeonF. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were C. Robert Satti, Sr., state’s attorney, and JohnPannone, assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction, after a jury trial, of the crime of possession of cocaine with intent to sell by a person who is not drug-dependent, as an accessory, in violation of General Statutes §§ 53a-8 and 21a-278 (b). He was sentenced to a term of ten years imprisonment, suspended after five years, with five years of probation. The sentence was to run consecutive to a sentence already being served. On appeal, the defendant argues that his conviction should be overturned because (1) a trace or residue of a narcotic substance does not constitute possession under the applicable statutes, and (2) the evidence was insufficient to support his conviction. We affirm the judgment.

The jury could reasonably have found the following facts. On May 3, 1989, two police officers, Keith Turgeon and Clemente Delacruz, were working undercover in an area of New London that is known to have a high incidence of drug trafficking, particularly the sale of crack cocaine. Both officers had had special training and had made numerous drug-related arrests.

At approximately 6:20 p.m., the defendant called to the officers, who were sitting in a car in a parking lot. Waving and gesturing to them to come to him, he stated “Come here, you want something?” He was approximately fifteen to twenty yards away from the officers and Delacruz recognized him. Turgeon approached the defendant and was told to meet him in a nearby city building. Turgeon entered through the front door of the building while the defendant entered through the back door. They met in the back hallway of the first floor. Delacruz remained outside the building. The defendant asked Turgeon if he wanted any “bottles.” Turgeon understood this term to mean crack cocaine, and Turgeon responded that he would like two bottles. The defendant said “No” and again asked “How many do you want?” Turgeon responded that he wanted three bottles. The defendant then instructed Turgeon to accompany him to the parking lot to pick up the bottles.

They then walked to a small automobile parked approximately forty to fifty yards from the building. Two men, Fred Seaburg and Henry Covey, were in the front seat of the car. The defendant got into the back seat and told Turgeon that the price for the vials of crack would be $55. Seaburg, who was in the driver’s seat, reiterated that the price would be $55. When Turgeon displayed some money, Covey removed a vial from his pocket. Upon seeing the vial, Turgeon identified himself as a police officer. Covey exited the vehicle and ran a few steps, but stopped at Turgeon’s command. He then returned to the car and joined the defendant and Seaburg who had been ordered to exit the vehicle and lie facedown on the ground. While on the ground, Covey reached into his left pants pocket, pulled out the vial and tossed it underneath the car. When Delacruz arrived, Turgeon recovered the vial which was clear plastic and contained traces of a white rock substance. On the basis of his experience and training, Turgeon believed the substance to be crack cocaine. Delacruz field-tested the powder and observed a positive reaction for cocaine. The cocaine residue in the vial was not weighed. At trial, the toxicologist who testified on behalf of the state could not say definitively that the amount was sufficient to give someone a high. He noted, however, that the amount was not a normal dosage that someone would use to get high.

There was also testimony at trial that crack cocaine is packaged in small vials that sell for $20 to $25 each and that the street term for such a vial is a “bottle.” Sellers often approach potential buyers and ask if they are interested in purchasing anything. Sales typically take place in the hallways of buildings and parking lots.

The defendant first argues that a trace or residue of a narcotic does not constitute possession of that narcotic under General Statutes §§ 21a-277, 21a-278 or 21a-279. We have recently declined to require any minimum amount or any usability test for conviction for possession of cocaine in violation of General Statutes § 21a-279 (a). State v. McCarthy, 25 Conn. App. 624, 628-29, 595 A.2d 941, cert. denied, 220 Conn. 925, 598 A.2d 366 (1991). The defendant argues that in § 21a-279 the legislature used the phrase “any quantity of any narcotic substance” whereas in §§ 21a-277 and 21a-278, the legislature used the terms “a narcotic substance” and “any narcotic substance.” He argues that the omission of the phrase “any quantity of” from the “possession with intent” statutes is meaningful. We do not agree.

“[0]ur statutes proscribing illegal substances ‘reflect convincingly a strong legislative policy directed toward the complete suppression of narcotics such as heroin and cocaine.’ ” State v. McCarthy, supra, 630. Section 21a-278 (b) does not set forth a minimum amount necessary for conviction of possession of a narcotic substance with intent to sell, but does mandate that if the substance is a cannabis-type, a defendant possess at least one kilogram to be convicted. This distinction in language demonstrates the legislature’s intent that the amount of narcotic substance possessed is immaterial for conviction under this statute. We conclude that the state is required by statute to prove only that the narcotic substance that the defendant possessed and intended to sell be enough to be tested; the intent of the statutes is clear that any such amount will be sufficient to support a conviction. A person may be convicted of possession of a narcotic substance with intent to sell when that person knowingly possesses and intends to sell any narcotic substance, regardless of the amount or whether the amount is sufficient to give the buyer a “high.”

The defendant next argues that the state presented insufficient evidence to support his conviction of possession of cocaine with intent to sell as an accessory. He argues that the element of an intent to sell may be proved by evidence such as the amount of illegal drugs found, the manner in which the illegal drugs are packaged, the amount of money found on the suspects, the area in which the illegal drugs are located, and statements made by the suspects. The defendant argues that none of these evidentiary factors supports the inference that he had an intent to sell.

The standard of review of the sufficiency of the evidence at trial is well established. “When reviewing claims of insufficient evidence, this court employs a two part analysis. ‘First, we review the trial evidence, construing it in the most favorable manner reasonably possible to support the jury’s verdict. Second, we ascertain whether any jury could reasonably have concluded that the cumulative effect of the established evidence, and the inferences reasonably drawn from those evidentiary facts, established guilt beyond a reasonable doubt.’ State v. Bowens, 24 Conn. App. 642, 646, 591 A.2d 433 (1991); State v. King, 216 Conn. 585, 600-601, 583 A.2d 896 (1990).” State v. Taft, 25 Conn. App. 578, 581, 595 A.2d 918, cert. denied, 220 Conn. 921, 597 A.2d 343 (1991). We must review the evidence in the light most favorable to sustaining the jury’s verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Lynch, 21 Conn. App. 386, 400, 574 A.2d 230, cert. denied, 216 Conn. 806, 580 A.2d 63 (1990).

While the physical circumstances surrounding a person’s arrest may be important to determine whether an intent to sell may be inferred, so too are that person’s statements and actions. “Where there is sufficient evidence to support a reasonable inference that the defendant intended to commit the crime charged, whether such an inference should be drawn is properly a question for the jury to decide.” State v. Williams, 202 Conn. 349, 357, 521 A.2d 150 (1987). The evidence of the statements and actions of the defendant, Sea-burg and Covey, and the inferences to be drawn therefrom were such that the jury could reasonably have found that the men intended to sell crack cocaine to Turgeon.

Subsequent to his arrest, the defendant declared that he and his friends had planned to rob Turgeon, that is, to beat him up and take his money. He insists that his intent was to rob and assault Turgeon, not to sell him crack cocaine. Intent is a question for the trier of fact to decide. Saradjian v. Saradjian, 25 Conn. App. 411, 415, 595 A.2d 890 (1991). Here, the jury obviously found that the evidence indicated beyond a reasonable doubt that the defendant had an intent to sell crack cocaine.

The defendant entered the car, leaving Turgeon outside alone. When Turgeon displayed money, no one attempted to get out of the car to rob him. Neither the defendant nor his cohorts brandished a weapon, and Turgeon could have run away easily if challenged. From this evidence, or lack thereof, the jury could have reasonably concluded that the defendant and the other two intended to sell crack cocaine to Turgeon. The fact that only one vial was produced while Turgeon had agreed to purchase three did not prevent the jury from reasonably inferring an intent to sell.

The defendant further argues that a buyer of drugs would not want to purchase a vial containing only residue, and therefore a seller could not possibly sell one. From that premise, the defendant takes a big step in concluding that if there is no market for a vial with drug residue only, there cannot exist an intent to sell such a vial. Our function is not to speculate on what is a sale-able item in the drug market. Under our statute, the intent of the seller, not the buyer, is controlling. The evidence of intent was sufficient to support the defendant’s conviction as an accessory to the possession of a narcotic substance with intent to sell.

The judgment is affirmed.

In this opinion the other judges concurred.

       At the close of evidence but before the charge to the jury, the state withdrew a second count charging criminal attempt to commit robbery in the second degree in violation of General Statutes §§ 53a-135 (a) (1) and 53a-49 (a) (1). The jury found the defendant not guilty of a third count charging conspiracy to commit robbery in the second degree in violation of General Statutes §§ 53a-48 and 53a-135 (a) (1).

       During oral argument, the defendant recognized that State v. McCarthy, 25 Conn. App. 624, 595 A.2d 941 (1991), released subsequent to his briefs being filed, clearly would apply to straight possession cases but should not be applied or extended to sale or possession with intent to sell cases. He also asks that we reconsider our decision in McCarthy.

       General Statutes § 21a-279 provides in pertinent part.: “(a) Any person who possesses or has under his control any quantity of any narcotic substance . . . .”

       General Statutes § 21a-277 provides in pertinent part: “(a) Any person who . . . sells . . . or . . . possesses with the intent to sell ... a narcotic substance . . . .”

       General Statutes § 21a-278 provides in pertinent part: “(b) Any person who . . . sells . . . or . . . possesses with the intent to sell . . . any narcotic substance . . . .”


author: Freedman, J.

text:
    Bruce E. Chaput et al. v. Flora Clarke
    (10078)
    Daly, Foti and Freedman, Js.

      Argued January 7
    decision released March 3, 1992

      Jackson T. King, Jr., with whom, on the brief, was Jeffrey R. Godley, for the appellant (defendant).

      Barry D. Guliano, for the appellees (plaintiffs).
   Freedman, J.

This appeal arises from the plaintiffs’ action seeking an injunction barring the defendant from closing, obstructing, or interfering with the plaintiffs’ use of a right-of-way that crosses the defendant’s land. The trial court granted the injunction and awarded nominal damages to the plaintiffs. The defendant raises two issues on appeal: (1) whether the town of Scotland created an easement or right-of-way when it voted to close old Khourie Road on July 10,1947, and (2), if such an easement or right-of-way was created, whether the deed conveying the plaintiffs’ property to them was sufficient to pass rights to the right-of-way. We affirm the judgment of the trial court.

On November 26,1946, the plaintiffs’ predecessors in title, Alfred E. Fredette and Rose M. Fredette, purchased a twenty acre parcel of real estate on Khourie Road in the town of Scotland. At that time, a dirt driveway extended into the parcel from a sharp bend in Khourie Road. The defendant’s husband, JohnT. Clarke, owned a summer house that also bordered on Khourie Road.

On July 10, 1947, the town of Scotland voted to “close for Town use, a section of old road-bed beginning just past the Dr. Clarke place and leading into the pasture and woodland formerly owned by [the Fredette’s predecessor in title]; the same to become a road to be used by the owner or owners of said property.” The area that the town closed was an unpaved section of road shaped like an inverted “V” referred to by the parties as “old Khourie Road.” The eastern branch of the V and the upper part of the western branch formed part of the boundary between the Fredette and Clarke land. The lower portion of the western branch ran through the Clarke land from the boundary with the Fredette land to the new section of Khourie road created by the town after the 1947 vote. The only part of “old Khourie Road” that is in dispute is the lower portion, which lies wholly within the Clarke’s land.

In 1956, the Fredettes built a house on Khourie Road near the eastern end of old Khourie Road. The Fredettes continued to use both branches of old Khourie Road to reach a driveway extending into the remainder of the twenty acre tract, although with the construction of the house to the east, the western branch gradually became less used.

In 1963, John Clarke, who knew of and did not object to the Fredettes’ use of the western branch, married the defendant. Alfred E. Fredette continued to clear, mow and maintain the western branch until his death in 1970.

In 1972, Alfred M. Fredette, the son of Alfred E. Fredette, began building a house in the rear of the tract which was reached by the driveway leading to old Khourie Road. He testified that construction equipment and materials were delivered using both branches of Old Khourie Road, again with the defendant’s apparent knowledge and consent. Because his mother was ill, Alfred M. Fredette never resided in the new home, leaving it vacant until he sold it to the plaintiffs in 1986.

The western branch of old Khourie road became increasingly overgrown. Alfred M. Fredette testified that he attempted to use it in 1982 when the eastern branch was obstructed by repair work, and he found it nearly impassible. In 1986, the defendant’s daughter, placed a fence across the western branch near the boundary of her mother’s land and that of the Fredettes. At various times thereafter, she dumped manure and barn sweepings into the roadway.

On February 6,1990, the plaintiffs filed a complaint seeking an injunction alleging that the defendant was obstructing a right-of-way that their predecessors in title had obtained from the town of Scotland in 1947. Judgment was rendered for the plaintiffs on February 25,1991, following a two day trial. This appeal followed.

We note at the outset that the closing of old Khourie Road is not governed by General Statutes § 13a-55 which governs the rights of property owners bounding a discontinued or abandoned public way, because the town use of old Khourie Road was discontinued in 1947, twelve years before the enactment of that statute. Rudewicz v. Gagne, 22 Conn. App. 285, 287, 582 A.2d 463 (1990). We must then turn to the common law to determine whether the town of Scotland granted the plaintiffs’ predecessors in title an easement to use the discontinued roadway.

It is uncontested that the parcel in question was part of a public highway before its discontinuance. The town had no fee interest in the highway itself. Where a highway runs along the boundary between the parties’ land, they continue to be owners of the underlying soil to the middle of the way. Luf v. Southbury, 188 Conn. 336, 341, 449 A.2d 1001 (1982); Antenucci v. Hartford Roman Catholic Diocesan Corporation, 142 Conn. 349, 355-56, 114 A.2d 216 (1955). The existence of the public highway creates two easements: (1) the public easement of travel that permits the general traveling public to pass over the highway at will; and (2) the private easement of access that permits the landowners who abut the highway to have access to the highway and to the connecting system of public roads. Luf v. Southbury, supra; Antenucci v. Hartford Roman Catholic Diocesan Corporation, supra.

At the time the town voted to close the road, our common law was that the discontinuance of a public highway extinguished both the public easement of travel and the private easement of access. The adjoining landowners’ fee interest in the underlying soil to the middle of the discontinued road was no longer subject to either the public’s right of travel or the other adjoining landowner’s right of passage. If this total and permanent destruction of the right of access caused by the discontinuance of a public highway eliminated an abutting owner’s only practical access to the public highway system, it was compensable. Luf v. Southbury, supra, 342-43; Cone v. Waterford, 158 Conn. 276, 279-80, 259 A.2d 615 (1969).

The town was apparently aware of both the common law rule and the possibility that it might have to compensate an adjoining landowner for a lost right of access. At the same meeting that closed the portion of Khourie Road, the town also voted to close two other portions of disused highway. In both of those cases, the town stated that both road beds would go back to the adjoining owners from the center of the old roadbed. When the town voted to close the portion of roadbed adjoining the Clarke and Fredette properties, however, it made the same a road “to be used by the owner or owners of said property.” This action abandoned the public’s right of passage while continuing each abutter’s right of passage, a result that spared the town the risk of having to compensate the Fredettes or Clarkes for any impairment of their access to the public highway system. See Luf v. Southbury, supra.

The defendant argues that a deed or other writing is required in order for the town to convey an interest in real estate. We note that under General Statutes § 13a-49, governing the discontinuance of highways or private ways, and the prior common law, however, the selectmen of a town may discontinue a highway by a writing signed by them. The trial court reviewed the minutes of the town meeting and determined that the town had sufficiently complied with the then existing common law when it abandoned the highway. We agree that the town’s vote was not a conveyance, but merely preserved the abutters’ private easement of access. Therefore, no deed was required.

The defendant next contends that the trial court abused its discretion in determining that the deed from Alfred M. Fredette and Rose M. Fredette to the plaintiffs, dated December 4,1986, conveyed the easement to the plaintiffs. The defendant correctly states that neither the courses and distances set forth in the deed nor the “Subdivision Plan Cedar Hill Prepared for Alfred M. Fredette” specifically referenced in the deed includes the disputed portion of old Khourie Road. The court found that the deed language referring to the undisputed portion of old Khourie Road described a right of passage remaining after the closure of the road and was not intended to limit appurtenant easements to the right-of-way along the western branch of old Khourie Road. It also found that the habendum clause, which included the phrase “with appurtenances thereof” was sufficient to convey the Fredettes’ right-of-way over the disputed portion of old Khourie Road.

Our Supreme Court considered a defendant’s right to use a right-of-way across a plaintiff’s land that was not specifically conveyed in the deed to him in Ailing Realty Co. v. Olderman, 90 Conn. 241, 96 A. 944 (1916). In that case, the original owner of a large parcel had divided it into at least four parcels that were separated by a seventeen foot alleyway. The defendant owned two adjacent parcels of land, each of which had access to the alleyway. He had purchased one tract that had been created before the right-of-way existed and therefore contained no reference to it in its deed. The second parcel had been granted an express right-of-way over the alley, but that language was omitted in the deed from an intervening landowner to the defendant. The court affirmed the trial court’s findings that the defendant had an easement for both properties. With regard to the second parcel, it stated that the “deed to the defendant did not, in specific terms, convey the right of way, but it did expressly grant the land with its appurtenances, and, by the force of that language, the easement as appurtenant to the land conveyed passed to the defendant.” Id., 251.

In other cases, our courts have held that the phrase “with all the appurtenances” is sufficient for the passage of an appurtenant easement although it is not otherwise described. Blanchard v. Maxson, 84 Conn. 429, 434, 80 A. 206 (1911); see also Schroeder v. Taylor, 104 Conn. 596, 601, 134 A. 63 (1926); Vingiano v. Vitolo, 5 Conn. Cir. 360, 365, 253 A.2d 681 (1968). The boundaries described by the plaintiffs’ deed and the plan referenced therein do not limit the broad power of the habendum clause to convey easements which are not otherwise set forth.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 13a-55 provides: “Property owners bounding a discontinued or abandoned highway, or a highway any portion of which has been discontinued or abandoned, shall have a right-of-way for all purposes for which a public highway may be now or hereafter used over such discontinued or abandoned highway to the nearest or most accessible highway, provided such right-of-way has not been acquired in conjunction with a limited access highway.

       The warning of the meeting states that:
      “6—To see if the Town will vote to close for Town use a portion of old road-bed no longer needed by the Town, joining land of Mr. Lowe, Pappenheimer, and Mrs. Bowers; opposite and west and south of the Parkhurst entrance; the same to go back to the adjoining owners from the center of the old road-bed;
      “7—To see if the Town will vote to close a portion of old road-bed, no longer needed, in front of Miss Khourie’s house and leading west back to the new road-bed; the same to go back to Miss Khourie, the present owner.
      “8—To see if the Town will close for Town use, a section of old road-bed beginning just past the Dr. Clarke place and leading into the pasture and woodland formerly owned by William Monty; the same to become a road to be used by the owner or owners of said property.”
      All three items were approved.

       Since the valid granting of the access of easement to the adjoining landowners would insulate the town from having to compensate them for its loss, we find that there was consideration for the transfer and that article one, § 1, of our state constitution providing that “[n]o man or set of men are entitled to exclusive public emoluments or privileges from the community” was not violated.

       The deed language is as follows: “Together with all rights to the abandoned section of Khourie Road as shown on said plan . . .


author: Per Curiam.

text:
    Staci Forsberg v. New Hampshire Insurance Company et al. New Hampshire Insurance Company et al. v. Staci Forsberg
    (9327)
    Daly, Norcott and Landau, Js.
    Argued December 10, 1991
    decision released March 3, 1992

      Elizabeth A. Gallagher, for the appellant (plaintiff in the first case, defendant in the second case).

      George J. DuBorg, for the appellee (named defendant in the first case, named plaintiff in the second case).

      Daniel P. Scapellati, with whom, on the brief, was John W. Lemega, for the appellee (State Farm Mutual Automobile Insurance Company).
   Per Curiam.

This case returns to this court on remand from our Supreme Court so that we may reconsider our decision reversing the judgment of the trial court in light of the Supreme Court’s recent decision in Covenant Ins. Co. v. Coon, 220 Conn. 30, 594 A.2d 977 (1991).

The facts of the present case are set forth in Forsberg v. New Hampshire Ins. Co., 24 Conn. App. 655, 657, 591 A.2d 147, remanded for reconsideration, 220 Conn. 922, 597 A.2d 342 (1991), and do not warrant repetition here. The dispositive question before us in that case was “whether the trial court correctly determined that Staci Forsberg’s vehicle was an ‘under-insured motor vehicle’ under General Statutes (Rev. to 1987) § 38-175C (b) (2) (now § 38a-336 [d]). Id., 656. We determined that the vehicle was not an underinsured vehicle as defined by the relevant statute and that the plaintiff, Forsberg, should be allowed to stack her uninsured-underinsured motorist coverage under policies held by her individually and by her parents. Id., 659-61. Accordingly, we remanded the case to the trial court with direction to render judgment confirming the arbitration award, which was in accordance with our decision.

Subsequent to our decision, our Supreme Court decided in Covenant Ins. Co. v. Coon, supra, that, in determining the liability limit for purposes of underinsured motorist insurance, the relevant amount to be examined is the per person limit available to the victim, and that, for the purpose of determining whether a tortfeasor’s vehicle is underinsured, the uninsured motorist insurance statute, General Statutes § 38a-336, limits consideration of underinsured motorist coverage to each individual policy available to the claimant separately. Id., 34. Under this analysis, our decision in Forsberg, which directly conflicts with Covenant, must be changed to conform to that recent Supreme Court case.

The judgment of the trial court is affirmed.

       The parents’ policy covered the plaintiff as a member of her parents’ household.


text:
    Virginia D’Addario v. David D’Addario, Executor (Estate of F. Francis D’Addario), et al.
    (10228)
    O’Connell, Norcott and Foti, Js.
    Argued December 6, 1991
    decision released March 3, 1992

      Philip Baroff, for the appellants (defendants).

      Allan M. Cane, for the appellee (plaintiff).
   Foti, J.

This appeal arises out of the conveyance of an estate in land by quitclaim deed from F. Francis D’Addario (the grantor) to his daughter (the plaintiff). After the grantor’s death, the plaintiff brought this action to quiet title of the property. The trial court determined that the plaintiff owned the property in fee simple absolute. The defendants now appeal that decision, claiming that the trial court improperly found (1) that the estate conveyed to the plaintiff was a fee simple subject to condition subsequent, (2) that the power of termination remaining in the grantor was personal to him, and (3) that after the grantor’s death the plaintiff owned the land in fee simple absolute. We affirm the judgment of the trial court.

The undisputed facts are as follows. In December, 1982, the grantor executed a quitclaim deed of conveyance that provided: “Releasor grants all of the above described real property to Releasee for so long as and upon the condition that Releasee shall use the premises as her principal residence. In the event that Releasee does not use or ceases to use the above described real property as her principal place of residence, the above described real property shall automatically revert to Releasor or his heirs and assigns upon the recording by Releasor of the Affidavit attached hereto as Schedule B and it shall not be necessary for Releasor or his heirs or assigns to take any further action to effectuate the reverter.”

Attached to this deed was an affidavit form that, when recorded, would terminate the interest conveyed by the deed. This affidavit was never recorded. The affidavit form provided: “The undersigned being duly sworn, hereby deposes and says as follows:

“1. That he is the Releasor under a certain Quit Claim Deed to Virginia D’Addario as the Releasee, dated December 31, 1982 and recorded in volume_at Page _of the Land Records of the Town of Trumbull.

“2. That under such Quit Claim Deed Releasor granted certain real property described therein to Releasee for so long as and upon the condition that Releasee should use the premises as her principal place of residence, and furthermore, that if Releasee did not use or ceases to use the real property as her principal place of residence said real property would automatically revert to Releasor and his heirs upon the filing of this Affidavit in the Land Records of the Town of Trumbull.

“3. That to the best of the undersigned’s belief and knowledge, said Releasee has ceased to use such real property as her principal place of residence as of_ and this Affidavit is being recorded to effectuate the automatic reverter of the real property to the undersigned.”

The trial court found that the grantor envisioned a family compound around his Trumbull home. Prior to executing the quitclaim deed, he spoke with the plaintiff about her taking up residence at 75 Williams Street, a piece of property next to his home. She told him that she would move in only if he would give her title to the house. During their discussion, the grantor indicated that he would not do so. He told the plaintiff, “This property won’t be yours until I die.” Nevertheless, the grantor executed the above deed, conveying an estate in the property to the plaintiff. The plaintiff, however, was unaware of the conveyance until after her father’s death on March 5, 1986. The plaintiff never resided at 75 Williams Street and the trial court found that the grantor knew that the plaintiff never resided there. The trial court also found that the grantor knew that on the town land records, title to the property was in the plaintiff’s name. Additionally, the grantor paid certain bills on the property that were addressed to the plaintiff as title holder.

During his lifetime, the grantor never recorded the affidavit attached to the quitclaim deed. Subsequent to the grantor’s death, the defendants, as trustees under the grantor’s will, attempted to exercise the power of termination by executing and recording a similar affidavit on the Trumbull land records. This affidavit conformed to the one attached to the quitclaim deed. The defendants recorded this affidavit to effectuate the grantor’s right of reentry and to terminate the plaintiff’s interest in the land. In response, the plaintiff brought this action to quiet title.

The trial court found that the estate conveyed to the plaintiff by the quitclaim deed was a fee simple subject to condition subsequent with a power of termination in the grantor. The court further found that according to the language of the deed, the power of termination was personal to the grantor. Thus, when the grantor died, the power of termination was extinguished and the plaintiff became the owner of the property in fee simple absolute. We agree with the trial court.

We begin our analysis by laying out the appropriate standard of review. “[W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980); McClintock v. Rivard, 219 Conn. 417, 426-27, 593 A.2d 1375 (1991). In this case, the defendants challenge the legal conclusions of the trial court.

I

The defendants first claim that the trial court improperly concluded that the grantor conveyed a fee simple subject to a condition subsequent to the plaintiff. At oral argument, the defendants asserted that the plaintiffs taking up residence at 75 Williams Street was a condition precedent and that because she never occupied the premises, no present estate ever vested in her. The defendants assert that at most, the plaintiff holds a life interest in the estate. Resolution of this issue turns on whether there was a present estate conveyed to the plaintiff and whether an estate remains vested in her. The narrower issue is whether the plaintiffs residency was a condition precedent or a condition subsequent to title vesting in her. “ Tf the act or condition required [does] not necessarily precede the vesting of the estate, but may accompany or follow it . . . then the condition is subsequent.’ ” Lewis v. Lewis, 74 Conn. 630, 634, 51 A. 854 (1902). An estate in fee simple subject to condition subsequent requires that the grantor take an affirmative action to divest the grantee of her estate. Oldfield v. Stoeco Homes, Inc., 26 N.J. 246, 254-55, 139 A.2d 291 (1958). On the other hand, a condition precedent is one that must be performed before the estate can vest. Warner v. Bennett, 31 Conn. 468, 475, (1863).

The relevant language of the deed here is: “Releasor grants all of the above described real property to Releasee for so long as and upon the condition that Releasee shall use the premises as her principal residence. In the event that Releasee does not use or ceases to use the above described real property as her principal place of residence, the above described real property shall automatically revert . . . .”

In determining whether this language creates a condition precedent or a condition subsequent, we recognize that “[i]t is a well established principle of construction that wherever possible each part of the scrivener’s phraseology should be given some import.” Peckheiser v. Tarone, 186 Conn. 53, 59, 438 A.2d 1192 (1982). “Every word, sentence and provision, if possible, is to have effect, and a construction which requires rejection of an entire clause is not to be admitted . . . .” 23 Am. Jur. 2d, Deeds § 227. Ambiguous deeds are construed in favor of the grantee and strongly against the grantor. Sweeney v. Landers, Frary & Clark, 80 Conn. 575, 579, 69 A. 566 (1908).

The defendants argue that the deed makes clear that no interest was transferred to the plaintiff unless and until she occupied the property as her principal place of residence. This interpretation of the language of the deed, however, makes the second sentence of the provision nugatory. If, as the defendants assert, the grantor intended to convey only a future interest that would vest upon the plaintiff’s taking up residence on the property, he would not have included a provision to effectuate defeasance if she did not move in. If the plaintiff could take title only by occupying the premises, no act on the grantor’s part would be necessary to terminate her interest if she failed to move in. Under the defendants’ interpretation of the deed, the words “in the event that the releasee does not use the above described property” have no meaning. Thus, their interpretation is contrary to the rules of construction that require us to give meaning to each part of the deed whenever possible.

Absent indication of a contrary intent, the language in a deed will be construed using its ordinary and natural meaning. Sweeney v. Landers, Frary & Clark, supra, 578-79. Traditionally, words such as “upon condition that” indicate an estate subject to condition subsequent. Oldfield v. Stoeco Homes, Inc., supra, 256. The grantor conveyed the property to the plaintiff “so long as and upon condition that” she use it as her principal residence. If she failed to do so, he had the right to take it away. This arrangement strongly resembles an estate in fee simple subject to a condition subsequent. Furthermore, “[a]s between conditions precedent and subsequent, the law favors conditions subsequent.” Lewis v. Lewis, supra, 633; see also United States v. Schaeffer, 319 F.2d 907, 911 (9th Cir. 1963). Thus, in this case, any ambiguity supports construction of the deed as creating a condition subsequent.

Construing the deed as granting a fee simple subject to condition subsequent is also consistent with the intent of the grantor as derived from the facts found by the trial court. The trial court found that the grantor intended that the plaintiff have the property when he died. Furthermore, the grantor knew that the plaintiff held title to the land and that she never occupied the premises, yet he never chose to exercise his power of termination. These facts tend to establish his intent that the conveyance created an estate subject to defeasance for condition broken.

II

The defendants next claim that even if a present estate was conveyed to the plaintiff, the grantor’s power of termination was not personal to him, and the defendants, as trustees under the grantor’s will, have the power to terminate the plaintiff’s estate.

The future interest remaining in the grantor of a fee simple subject to a condition subsequent is the right of entry for condition broken, also known as a power of termination. Oldfield v. Stoeco Homes, Inc., supra, 255. Breach of the condition does not itself cause a forfeiture of the estate. Nearing v. Bridgeport, 137 Conn. 205, 207, 75 A.2d 505 (1950); Chalker v. Chalker, 1 Conn. 79, 86 (1814). Actual entry for breach of condition is required in order to effectuate defeasance. Nearing v. Bridgeport, supra, 207. In the present case, the grantor reserved a right of entry in case the plaintiff never occupied the property or ceased to occupy it. The grantor could exercise the power of termination by recording the affidavit attached to the deed. During his lifetime, the grantor did not exercise his power of termination. The issue presented is whether the grantor’s heirs also have the right to exercise the power of termination. On this point, the salient language of the deed is: “In the event that the Releasee does not use or ceases to use the above described real property as her principal place of residence, the above described property shall automatically revert to Releasor or his heirs and assigns upon the recording by Releasor of the Affidavit attached hereto as Schedule B and it shall not be necessary for Releasor or his heirs and assigns to take any further action to effectuate the reverter.” (Emphasis added.)

The grantor uses the phrase “Releasor and his heirs and assigns” twice, first when denoting to whom the property would revert and then when explaining that no action other than recordation of the affidavit was necessary to effectuate the reverter. He does not use this phrase, however, in specifying who has the power to terminate the plaintiff’s interest. Rather, this provision states that “the above described property shall automatically revert . . . upon the recording by Releasor of the Affidavit.” (Emphasis added.) The grantor’s failure to include the term “and his heirs and assigns” in specifying who holds the power of termination implies that he intended that the power of termination be personal to him. A plain reading of the deed compels this conclusion. The grantor could easily have drafted this provision to include his heirs and assigns, but he chose not to. “[UJnless the heir is named, he cannot re-enter, though the condition is breached; the estate does not inure to his benefit.” Daggett v. Fort Worth, 177 S.W. 222, 223 (Tex. Civ. App. 1915). Thus, the defendants are unable to exercise the power of termination retained by the grantor.

Furthermore, as the trial court noted in the memorandum of decision, this interpretation is consistent with the evidence adduced at trial that the grantor was reluctant to delegate authority and that he intended that the plaintiff own the property after his death.

We conclude that the trial court’s legal conclusions are correct and are supported by the facts. Because the grantor never exercised the power of termination during his lifetime, it was extinguished upon his death. The affidavits filed by the defendants in an attempt to terminate the plaintiff’s interest in the land are ineffective. The plaintiff owns the property in fee simple absolute.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants are the executors of the grantor’s estate and the trustees of the testamentary trusts under his will.

       Although the defendants do not dispute that delivery occurred, it is noteworthy that the trial court found delivery, even though the plaintiff was unaware of the conveyance until her father’s death. The trial court also pointed out in the memorandum of decision that the plaintiff s actions after she discovered the conveyance, namely paying taxes on the land and bringing this action to quiet title, indicate her acceptance.

       We note that the defendants do not challenge the factual findings of the trial court.


text:
    Hoke Incorporated v. Circuits, Inc.
    (10507)
    Dupont, C. J., O’Connell and Freedman, Js.
    Argued January 16
    decision released March 3, 1992

      Leny K. Wallen-Friedman, with whom was Eric Lukingbeal, for the appellant (plaintiff).

      Katharine Goodbody, with whom, on the brief, were Mark Mininberg and Julie Harrison, for the appellee (defendant).
   Per Curiam.

This is an appeal by the plaintiff from the denial of its application for a prejudgment remedy. The plaintiff seeks an order from the trial court directing the issuance of a prejudgment attachment, in the amount of $300,000, against certain real property owned by the defendant.

In determining whether to grant an application for a prejudgment remedy, pursuant to General Statutes § 52-278d, “the trial court’s function is to determine whether there is probable cause to believe that a judgment will be rendered in favor of the plaintiff in a trial on the merits. . . . ‘The hearing in probable cause for the issuance of a prejudgment remedy is not contemplated to be a full scale trial on the merits of the plaintiff’s claim. The plaintiff does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim. . . . The court’s role in such a hearing is to determine probable success by weighing probabilities.’ . . . Moreover, this weighing process applies to both legal and factual issues.” (Citations omitted.) Bank of Boston Connecticut v. Schlesinger, 220 Conn. 152, 156, 595 A.2d 872 (1991). On appeal, our review is limited to “ ‘whether the determination of the trial court constituted clear error.’ ” Id., 157.

In denying the plaintiff’s application, the trial court found that it did not have “enough here to enter a $300,000 judgment,” even though it accepted all of the testimony presented by the plaintiff. The trial court, therefore, held the plaintiff to a higher standard than is required by General Statutes § 52-278d.

The denial of the application is reversed and the case is remanded for a new hearing.

       General Statutes § 52-278d (a) provides: “The defendant shall have the right to appear and be heard at the hearing. The hearing shall be limited to a determination of whether or not there is probable cause to sustain the validity of the plaintiffs claim. If the court, upon consideration of the facts before it, finds that the plaintiff has shown probable cause to sustain the validity of his claim, then the prejudgment remedy applied for shall be granted as requested or as modified by the court unless the prejudgment remedy or application for such prejudgment remedy was dismissed or withdrawn pursuant to the provisions of section 52-278j.”