author: Borden, J.

text:
    State of Connecticut v. Charles Banta, Jr. State of Connecticut v. Ronald Habich
    (4814)
    (4831)
    Dupont, C. J., Borden and Stoughton, Js.

      Argued February 9—
    decision released July 12, 1988

      G. Douglas Nash, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellants (defendants).

      Guy W. Wolf III, assistant state’s attorney, with whom, on the brief, was Arnold Markle, state’s attorney, for the appellee (state).
   Borden, J.

Both defendants appeal from the judgments of conviction, after their joint trial before a jury, on charges of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4) and criminal possession of a pistol in violation of General Statutes § 53a-217 (a). Both defendants were found guilty of robbery in the first degree. The defendant Charles Banta, Jr., was found guilty of criminal possession of a pistol, while the defendant Ronald Habich was acquitted of that charge. On appeal, the defendants jointly claim that the trial court erred (1) in denying their motions to sever and to order separate trials on the robbery and criminal possession of a pistol offenses, (2) in denying the motion for a bifurcated trial on the criminal possession of a pistol charge, (3) in not suppressing evidence obtained during a search of the defendants’ motel room and the car used by them, and (4) in instructing the jury on drawing inferences from circumstantial evidence. The defendants also claim that General Statutes § 53a-217 (a), which criminalizes the possession of a pistol by persons previously convicted of certain felonies, is unconstitutional. We find no error.

The jury could reasonably have found the following facts. On March 8,1985, the victim, Joseph DeMartino, was in the process of readying his antique store for business. That evening, he arrived at his home at 345 Lighthouse Road in New Haven. He got out of his car carrying a large double shopping bag containing numerous items of his personal property, merchandise for his store, and items of jewelry for repair. He was also carrying about $2000 in cash and a wallet, and was wearing an assortment of jewelry. As he stepped away from his car, he was confronted by three men wearing black masks. The tallest of the three men was armed with a handgun and demanded that DeMartino surrender his belongings. DeMartino resisted and was struck on the side of the face with the gun. The three assailants then took DeMartino’s possessions, including the jewelry he was wearing and the cash from his pocket. DeMartino was left tied to a nearby chainlink fence. The three men then fled in the direction of 325 Lighthouse Road, the house next door.

After DeMartino freed himself, he reported the robbery to the police. The police arrived at DeMartino’s house and viewed the scene of the crime. The police found a number of DeMartino’s personal items scattered about the driveway near DeMartino’s car. They also observed DeMartino’s injuries, bloodstained clothing and torn shirt. DeMartino could not identify any of his assailants.

A neighbor told the officers about three men and a car she had seen earlier that evening. The men parked their car on Morris Avenue, just around the comer from the crime scene, and walked up Morris Avenue toward Lighthouse Road, entering the rear yard of 325 Lighthouse Road. Because the car was parked in a no parking zone, the neighbor observed and recorded the automobile’s license number. Soon thereafter, she saw the car driving away quickly without its headlights on. She gave the license information to the police, and was able to determine that it was a New Jersey license.

The police learned that the automobile belonged to the defendant Habich and that he had been visiting the defendant Banta. Early the next morning, the car was located in a motel parking lot in West Haven. The motel night manager confirmed that an individual, calling himself “Frank Seals” but matching the description of Banta, had registered for room 122 about one hour earlier. At trial, the manager identified Banta as the person who rented the room and identified Habich as one of the two persons who later joined Banta in the room. Banta admitted registering under a false name and using a false address and license number when registering.

Later that morning, the police searched room 122 pursuant to a search warrant, and found DeMartino’s jewelry and personal effects. The defendants and another individual were in the room. The police found $1238 in Banta’s front pockets and $336.70 on the person of the third individual. The police also found a .45 caliber automatic handgun in a desk drawer and a clip containing three rounds of .45 caliber ammunition on Banta’s person. A subsequent search of Habich’s automobile turned up more of DeMartino’s personal effects. In addition, three black stocking masks were found in the car.

At trial, Banta testified. He did not deny that the trio was at DeMartino’s that evening; rather, he denied that what happened was a robbery. He claimed that the three of them went to DeMartino’s home to finalize a business deal with DeMartino for the sale of some jewelry. Banta testified that he had given DeMartino a number of gold chains a couple of days before so that DeMartino could appraise their value before agreeing to purchase them, but DeMartino had put him off until agreeing to meet Banta at DeMartino’s home on the evening of March 8. According to Banta, at that meeting DeMartino said he thought the chains were stolen and offered only a fraction of the value he had originally estimated the chains were worth. Banta testified that he became upset and demanded his property back or adequate payment. When DeMartino said he did not have Banta’s jewelry with him, Banta testified, he insisted that DeMartino get the property and that he would not leave until DeMartino did so. According to Banta, DeMartino angrily said he could do nothing until morning, but that he would give Banta his personal items as collateral until then and handed them to Banta along "with the neck chains he was wearing. Then, Banta testified, he observed DeMartino reach into his bag. Banta grabbed DeMartino’s hand and found DeMartino had reached for a handgun. Banta took the gun away and, according to his testimony, struck DeMartino in the face with the gun several times. DeMartino pleaded and explained that he needed $22,000 or he was going to jail. He then offered Banta all of the property he had with him as collateral because he did not want any more trouble. Banta testified that he said that he did not want any trouble either, and that all he wanted was what was rightfully his. According to his testimony, Banta then accepted DeMartino’s property as collateral, and made arrangements to call DeMartino the next day to get the money or his jewelry back.

I

The defendants claim that the trial court erred in denying their motions for severance which requested separate trials on the two offenses with which each was charged. The defendants assert that they were substantially prejudiced in their trial on the robbery charges by the court’s refusal to sever, because proof of a prior felony conviction was an essential element of the second count of the information charging criminal possession of a pistol in violation of General Statutes § 53a-217, and such evidence would have been inadmissible and highly prejudicial; see, e.g., State v. Artieri, 206 Conn. 81, 88, 536 A.2d 567 (1988); in the case against the defendants with regard to the robbery charges. We disagree.

“A judicial authority may order that two or more indictments or informations or both, whether against the same defendant or different defendants, be tried together. Practice Book § 829; General Statutes § 54-57. A judicial authority may also order separate trials if it appears that a defendant is prejudiced by joinder. Practice Book § 828. This does not mean that severance is to be had for the asking. State v. King, 187 Conn. 292, 302, 445 A.2d 901 (1982); see also State v. Bell, 188 Conn. 406, 410-11, 450 A.2d 356 (1982).

“The question of severance lies within the discretion of the trial court. We will not disturb the trial court’s conclusion on the issue absent a clear abuse of discretion. The discretion to sever a trial should be exercised only if a joint trial will substantially prejudice the defendant. Substantial prejudice is more than disadvantage and the formidable task of demonstrating an abuse of discretion and that a joint trial resulted in substantial prejudice falls to the defendant. State v. Smith, 201 Conn. 659, 669, 519 A.2d 26 (1986); State v. Schroff, 198 Conn. 405, 408, 503 A.2d 167 (1986); State v. Rodgers, 198 Conn. 53, 63, 502 A.2d 360 (1985); State v. Wiggins, 7 Conn. App. 95, 101, 507 A.2d 518 (1986). Simply put, the test to be applied is whether substantial injustice will result if the charges are tried together. State v. King, supra, 299; State v. Oliver, 161 Conn. 348, 360-61, 288 A.2d 81 (1971).” State v. Edwards, 10 Conn. App. 503, 506-507, 524 A.2d 648, cert. denied, 204 Conn. 808, 528 A.2d 1155 (1987).

Our Supreme Court has recently noted that “[s]ubstantial prejudice does not necessarily result from a denial of severance even where evidence of one offense would not have been admissible at a separate trial involving the second offense. A trial court will not have manifestly abused its discretion in denying severance if the state’s orderly presentation of evidence has prevented confusion of the jury and has enabled the jury, to consider the evidence relevant to each charge separately and distinctly. See Drew v. United States, 331 F.2d 85, 89 (D.C. Cir. 1964); State v. Bell, [supra] 411; State v. King, supra, 301.” State v. Pollitt, 205 Conn. 61, 68, 530 A.2d 155 (1987).

Although the defendants have briefed this claim together, they are not similarly situated with respect to our examination of these pertinent factors. We therefore discuss the claim of prejudice raised by each separately.

A

Banta testified at trial. On direct and cross-examination, he stated that he had acquired the jewelry he claimed to have brought to DeMartino during the four years that he was a prison inmate. Banta acknowledged in his direct testimony that had been convicted of larceny in the second degree in 1975, burglary in the third degree in 1978, three counts of burglary in the third degree in 1981, and another felony in 1981. In addition, on cross-examination for impeachment purposes, Banta was asked about a prior incident in which he gave false information to the police regarding an automobile accident. Finally, to corroborate Banta’s version of the facts, two individuals who were then serving felony sentences at the state prison in Somers testified that Banta was actively engaged in the business of buying and selling jewelry, mostly gold chains, while in prison. In light of the numerous references to Banta’s prior felony convictions and incarceration, including the specific nature of those felony offenses which went well beyond the state’s evidence of one unspecified prior felony conviction admitted for consideration with respect to the firearms charge, we cannot conclude that any substantial injustice resulted to Banta from the trial court’s refusal to order separate trials on the two offenses. Cf. State v. Foshay, 12 Conn. App. 1, 28-29, 530 A.2d 611, cert. granted in part, 205 Conn. 813, 532 A.2d 587 (1987).

B

Habich did not testify at trial and, consequently, his claim of prejudice from the joint trial of these offenses presents a closer question. The prior felony conviction evidence against Habich was mentioned at two points during the trial. First, at the close of the state’s evidence, the assistant state’s attorney stated before the jury that “the defendants would stipulate with the state, as to the second count of the information charging criminal possession of a firearm, that each of the defendants has been previously convicted of an applicable or appropriate felony under the statute. This is agreed to by the defendants and stipulated to by the state and is part of the element of that crime.” Later, during the court’s charge to the jury, the matter of the stipulation and the prior felony evidence was again mentioned to the jury: “In this case, however, the three attorneys have agreed that Mr. Banta and Mr. Habich have been convicted of an applicable felony for purposes of the second count of each information which alleges just that as an element of the crime. There are two elements of that second count, one is possession of a pistol, and one is having been previously convicted of an applicable felony. The criminal statute does not use the term ‘applicable felony’; it enumerates some section numbers. For purposes of shortcutting testimony which could be avoided and to simplify the matter, the information simply charged ‘applicable felony,’ so you don’t have to deal with specific statute numbers and names of felonies. It is an element of the crime, however, and it has been agreed to. Now, the stipulation that Mr. Banta and Mr. Habich have been convicted of a prior felony, termed ‘applicable felony,’ can only be used and considered by the jury for one purpose, and that is as to whether the state has satisfied its burden of proving an essential element of the crime, criminal possession of a pistol. The stipulation that Mr. Banta and Mr. Habich have been previously convicted of such a felony cannot be considered by the jury for any other purpose. For example, the stipulation cannot be considered by you in determining whether the state has satisfied its burden of proof on the other essential elements of possession or with regard to the first count robbery; it has no bearing whatsoever on any other purpose other than the second element of the second count. It cannot be used by the jury as a basis for inferring that having been convicted of an applicable felony, the defendant must be guilty of other crimes or responsible for other elements in either of the two counts. You should not be prejudiced against the defendants in your deliberations because of this stipulation. ” (Emphasis added.)

Federal courts which have considered the issue of whether a trial court should have ordered separate trials when the analogous federal crime of being a felon in possession of a firearm; see 18 U.S.C. app. § 1202; 18 U.S.C. § 922 (g); is joined with some other substantive offense, have looked to the following factors in evaluating whether a refusal to order separate trials was an abuse of discretion requiring a reversal of conviction: the manner in which the evidence entered the case and the extent of the jury’s knowledge of the facts underlying the prior felony conviction; see, e.g., United States v. Burgess, 791 F.2d 676, 679 (9th Cir. 1986); United States v. Aleman, 609 F.2d 298, 310 (7th Cir. 1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1345, 63 L. Ed. 2d 780 (1980); United States v. Busic, 587 F.2d 577, 585 (3d Cir. 1978), rev’d on other grounds, 446 U.S. 398, 100 S. Ct. 1747, 64 L. Ed. 2d 381 (1980); the adequacy of any cautionary instructions given by the court; see, e.g.. United States v. Lewis, 787 F.2d 1318, 1323, amended in other part, 798 F.2d 1250 (9th Cir. 1986); United States v. Silva, 745 F.2d 840, 844 (4th Cir. 1984), cert. denied, 470 U.S. 1031, 105 S. Ct. 1404, 84 L. Ed. 2d 791 (1985); the use of the prior felony evidence by the prosecution in argument to the jury; see, e.g., United States v. Lewis, supra; United States v. Valentine, 706 F.2d 282, 290 (10th Cir. 1983); the likelihood that the prior felony conviction evidence will inflame the passions of the jurors in light of the nature of the offenses charged; see, e.g., United States v. Lewis, supra; and the strength of the evidence against the defendant. See, e.g., United States v. Burgess, supra; United States v. Lewis, supra, 1322. We find these factors to be helpful in evaluating Habich’s claim of undue prejudice resulting from the trial court’s refusal to order separate trials on the robbery and criminal possession of a pistol charges.

The record in this case leads us to conclude that any prejudicial effect to Habich caused by the joinder of the two counts was minimal. Habich’s prior conviction was presented to the jury by a stipulation which simply stated that he had previously been convicted of an “applicable felony,” without disclosing the nature of the crime or the length of the sentence. The court’s cautionary instruction was complete and emphatic. See State v. Edwards, supra, 508-509. The state did not use Habich’s prior conviction for dramatic or inflammatory effect; see United States v. Lewis, supra, 1322-23; and the case was such that the jury is unlikely to have been swayed by passions. See State v. Boscarino, 204 Conn. 714, 529 A.2d 1260 (1987). Furthermore, the jurors acquitted Habich on the possession count. See State v. Lo Sacco, 11 Conn. App. 24, 27, 525 A.2d 977, cert. denied, 204 Conn. 812, 528 A.2d 1158 (1987). This provides further support for the conclusion that “the state’s orderly presentation of evidence . . . prevented confusion of the jury and . . . enabled the jury to consider the evidence relevant to each charge separately and distinctly.” State v. Pollitt, supra, 68. Finally, the evidence against Habich was neither sparse nor unconvincing. We conclude that the trial court here gave adequate consideration to the potential for prejudice caused by the joinder of the felony conviction charge with the robbery charge, and that Habich “has failed to sustain his heavy burden of showing that the denial of his motion to sever resulted in substantial injustice or prejudice.” State v. Edwards, supra, 509.

II

The defendants next argue that the trial court erred in not requiring a two part information and trial on the charge of criminal possession of a pistol. They contend that the denial of their motions for a bifurcated trial, which allowed their prior convictions to go before the jury, was error. The defendants base this claim on State v. Ferrone, 96 Conn. 160, 171-76, 113 A. 452 (1921), and Practice Book §§ 619 and 840, which, they contend, “require a bifurcated information and trial when the defendant’s prior conviction is part of the alleged crime.” While we agree that these rules of practice require a two part information and trial when proof of a defendant’s prior conviction is used to enhance the punishment for a contemporaneous conviction of a substantive offense, we disagree that these rules on Ferróme apply to a charge brought under General Statutes § 53a-217.

As Practice Book § 619 clearly states, a two part information is required “[w]here the information alleges, in addition to the principal offense charged, a former conviction or convictions . . . .” In a prosecution under General Statutes § 53a-217, the former conviction is not alleged in addition to the principal offense, but is an essential factual element of the offense. The part of Practice Book § 619 which requires that “[i]n the first part [of the information], the particular offense with which the accused is charged shall be set out, and in the other part the former conviction or convictions shall be alleged,” cannot logically be made to fit the situation of § 53a-217, as the defendants urge, because, in setting out the principal offense, the first part of the information would, of necessity, include mention of the defendant’s prior felony conviction which forms a part of that charge. No useful purpose would be served by a separate information alleging only the prior conviction. Additionally, an information alleging only that a defendant possessed a handgun, without mention of his prior conviction, would fail to allege any cognizable offense under our penal code.

The rule of State v. Ferrone, supra, which is now incorporated into our rules of practice in some detail; see Practice Book §§ 619, 647, 648; applies only to persistent offender or recidivist charges. See General Statutes § 53a-40. It applies to allegations of prior convictions which cannot be brought separately from an information charging a specific substantive crime; State v. Lewis, 176 Conn. 270, 272-73, 407 A.2d 955 (1978); and for which conviction may be obtained simply upon proof of the defendant’s status as a person who has been convicted before of the applicable offense or offenses. In such instances, the defendant’s prior convictions are not only an element of the crime charged; they are the only facts which need be proven beyond a reasonable doubt to warrant conviction. It is because of these aspects of a recidivist charge, not present in a charge of criminal possession of a pistol in violation of General Statutes § 53a-217, that the use of the second part of the information to set forth this secondary offense as required by the rules of practice is workable and serves to ensure that a jury is not prejudiced by evidence of a defendant’s prior convictions. That a bifurcated trial on an information charging possession of a pistol by a convicted felon is possible; see, e.g., United States v. Franke, 331 F. Sup. 136 (D. Minn. 1971); is not determinative of the defendant’s claim. Our rules of practice simply do not, and cannot by their own terms be made to, require a two part information for charges under § 53a-217 without doing violence to the language of those rules.

Ill

The defendants also claim that the trial court erred in not suppressing evidence obtained during a search of the motel room and the automobile which was conducted pursuant to a warrant. They contend that the search violated their rights under the federal and state constitutions because the affidavit underlying the search warrant failed to establish probable cause. We disagree.

The affidavit signed by two New Haven police officers, Joseph Reynolds, Jr., and Thomas Lokites, set forth the following facts. Reynolds and Lokites are law enforcement officers with a total of nineteen years experience with the New Haven police department, including assignment to the investigative service unit. On March 8, 1985, at 10:24 p.m., Joseph DeMartino reported that a robbery had occurred in the driveway of his home at 345 Lighthouse Road; DeMartino was approached by three men, two tall and one short, wearing black masks, one of whom was armed with a handgun, who took his wallet and other described property and then pistol-whipped him before fleeing on foot.

Paragraph six of the affidavit recited that “a witness who was interviewed did state that [she] had observed a yellow auto containing three white males park on Morris Avenue, they did exit the auto and walked on Morris Avenue and then walked into the rear of 325 Lighthouse Road, the witness at this time did obtain the marker number of this auto due to the fact that no one parks in this area. The marker number is New Jersey 335 YFW, shortly thereafter she heard the doors close and observed the auto traveling south on Morris Avenue with its lights out, at this time three subjects were observed in the auto.” The affidavit also stated that a motor vehicle check showed that the vehicle was owned by Habich, who had committed a prior robbery in New Haven in 1969 and whose mother informed the police that he had left New Jersey on March 2 to visit Banta in Connecticut. Police files disclosed a Charles Banta, a white male, with a Milford address. There was no car of the above description at that address. The affidavit further stated that the automobile was located in the parking lot of a West Haven motel at 3 a.m. on March 9, that the description of the individual who registered in room 122 given by the motel clerk fit that of Banta, that that individual had let two other white males into his room, and that the motel clerk stated that two of the men were tall and the other short.

Under our state constitution, the affidavit supporting the search warrant can pass muster if it meets the test set forth in State v. Kimbro, 197 Conn. 219, 496 A.2d 498 (1985), which is based on an analysis of two key factors: “ ‘(1) the basis of the informant’s knowledge—the means by which he acquired his information, and (2) the underlying facts establishing either his general veracity or his reliability in the particular case.’ ” State v. Garcia, 7 Conn. App. 354, 358, 508 A.2d 824 (1986), quoting State v. Martin, 2 Conn. App. 605, 610, 482 A.2d 70 (1984), cert. denied, 195 Conn. 802, 488 A.2d 457, cert. denied, 472 U.S. 1009, 105 S. Ct. 2706, 86 L. Ed. 2d 721 (1985).

The defendants’ challenge to the search warrant affidavit focuses exclusively on paragraph six of the affidavit, which supplies the crucial link between the robbery and the defendants. The defendants claim that under the Kimbro “basis of knowledge” prong, the affidavit fails to state a time or date of the informant’s observations, fails to identify the relationship of the informant to the scene of the crime, and fails to indicate how the informant happened to be in a position to observe what is related in the affidavit. The defendants also claim that, under the “credibility” prong of Kimbro, there was insufficient corroboration of the informant’s reliability. We find both contentions to be without merit.

In evaluating the search warrant affidavit under the Kimbro test, certain principles generally applicable to the evaluation of search warrant affidavits must also be recognized. The affidavit must be read in a common sense and realistic manner, and the issuing magistrate is not confined to its literal terms but may draw reasonable inferences therefrom. State v. Ralston, 7 Conn. App. 660, 673, 510 A.2d 1346 (1986). Probable cause is a mosaic “established by fitting pieces of information together”; id., 682; which convinces the magistrate of a fair probability that the evidence of the crime is where it is alleged to be.

The facts set forth in the affidavit show that the witness acquired her information from firsthand observation made in an area adjacent to the crime scene and are sufficient to support the reasonable inference that these observations, made to the police during the course of their investigation at the scene of the crime, were made close in time to the occurrence of the crime. Furthermore, as to the reliability of the information supplied to the police, it is significant that the affiants termed the person who had given them information as a “witness” and not an “informant.” A witness is a person who “has personal knowledge of something.” Webster, Third New International Dictionary. The facts related in the affidavit support the reasonable inference that the witness referred to in paragraph six was “a ‘citizen-informer’ who is more deserving of belief than the typical informant from a criminal milieu. 1 LaFave, Search and Seizure § 3.3, p. 499; United States v. Harris, [403 U.S. 573, 599, 91 S. Ct. 2075, 29 L. Ed. 2d 723 (1971)] (Harlan, J. dissenting). United States v. Rollins, 522 F.2d 160, 164 (2d Cir. 1975), cert. denied, 424 U.S. 918, 96 S. Ct. 1122, 47 L. Ed. 2d 324 (1976). ‘It is generally agreed . . . that a comparable showing is not needed to establish veracity when the information comes from an average citizen who is in a position to supply information by virtue of having been a crime victim or a witness.’ 1 LaFave, Search and Seizure § 3.4, p. 587; see Jaben v. United States, 381 U.S. 214, 85 S. Ct. 1365, 14 L. Ed. 2d 345 (1965).” State v. Daley, 189 Conn. 717, 723-24, 458 A.2d 1147 (1983). Accordingly, we conclude that the search warrant was properly supported by a showing of probable cause and therefore was validly issued.

IV

We next consider the defendants’ claim that the court’s instructions to the jury regarding inferences drawn from circumstantial evidence diluted the constitutional requirement that the state prove guilt beyond a reasonable doubt. The court’s instructions included the all too familiar language that “[s]uch an inference may be made if the fact from which you are asked to draw the inference has itself been proven beyond a reasonable doubt, and the inference requested to be drawn is not only logical and reasonable, but is strong enough so that you can find that it is more probable than not that the fact to be inferred is true.” (Emphasis added.) The defendants argue that this charge constituted reversible error because, they claim, intent was an important and disputed issue in the case and that this issue was, of necessity, resolved by inferences drawn from circumstantial evidence.

We first note that, despite the defendants’ failure to except to the court’s jury charge, their claim is reviewable under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). State v. McDonough, 205 Conn. 352, 354, 533 A.2d 857 (1987), cert. denied, U.S. , 108 S. Ct. 1079, 99 L. Ed. 2d 238 (1988). Moreover, it is well established that such an instruction is erroneous. Id., 355-56; State v. Hufford, 205 Conn. 386, 407, 533 A.2d 866 (1987). The only question, then, is whether the error is reversible in this case. We conclude that it is not.

“In considering the harmfulness of an erroneous instruction on circumstantial evidence, we have distinguished between cases where circumstantial evidence is the primary proof of an element of the crime and those where direct testimony plays the major role.” State v. McDonough, supra, 358. Our review of the record reveals that intent was not the key issue at trial; instead, whether the crime occurred, an issue “ordinarily proved by direct testimony with circumstantial evidence playing a subordinate role”; id.; was the central matter for the jury to decide. Whether what occurred in DeMartino’s driveway on March 8 was a robbery as the state claimed or whether it was a business deal gone wrong as the defense contended, which the defendants properly characterize as “the dispute at trial,” was largely dependent upon which version of the facts, the victim’s or Banta’s, was given credence by the jury. “Contrary to the defendants’] assertion, the principal disputed issue in this case was not intent, but the credibility of the complainant. [Banta] denied that he committed the crimes charged. The evidence produced to prove that the crime was committed was the direct testimony of the complainant. This evidence was contradicted by the direct testimony of the defendant .... On this record, it is clear that the jury’s verdict depended not upon circumstantial evidence, but upon the credit it gave to the direct testimony of the complainant.” State v. Hufford, supra, 408; see also State v. Gonzalez, 206 Conn. 213, 227-28, 537 A.2d 460 (1988).

We therefore review the erroneous instruction in the context of the charge as a whole to ascertain whether it is reasonably possible that the jury was misled by an erroneous explanation of the use of circumstantial evidence. State v. Hufford, supra, 407-409. Having reviewed the court’s charge as a whole, and finding present each of the “curative factors” mentioned in State v. Hufford, supra, 408, we conclude that it is not reasonably possible that the erroneous instruction misled the jury as to the state’s burden of proof on the robbery charge.

V

Finally, Banta challenges the constitutionality of General Statutes § 53a-217; see footnote 1, supra; under various state and federal constitutional provisions. Specifically, Banta claims that his conviction for criminal possession of a pistol violates his right to bear arms under the state constitution, his right to equal protection of the laws under both the state and federal constitutions, the prohibition against ex post facto laws in the federal constitution, and the prohibition against bills of attainder in both the state and federal constitutions.

Before addressing Banta’s constitutional claims, we must determine whether they are reviewable by this court. None of these claims was raised in the trial court. Banta urges review under the second “exceptional circumstance” of State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), “where the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial.” Id., 70. We disagree, and we conclude that the defendant’s constitutional claims do not qualify for Evans review.

We have repeatedly stated that, in deciding whether Evans review is warranted, we must answer two preliminary questions in the affirmative. See State v. Huff, 10 Conn. App. 330, 333-34, 523 A.2d 906, cert. denied, 203 Conn. 809, 525 A.2d 525 (1987); State v. Thurman, 10 Conn. App. 302, 306-307, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987); State v. Newton, 8 Conn. App. 528, 531-32, 513 A.2d 1261 (1986). First, is the label placed on the claim by the defendant constitutional in nature? State v. Huff supra, 334. Second, does a limited review of the record disclose that the defendant’s claim is truly of constitutional proportion, and is not simply a nonconstitutional claim characterized by the defendant as constitutional? Id.

In this case, the defendant has satisfied the first requirement, because he claims that the statute under which he was convicted was unconstitutional in various respects. He has not satisfied the second requirement, however, because our limited review of the record discloses that his claims are not of true constitutional proportion, but are simply characterized as such by him.

We first note that, with but two exceptions, our Supreme Court has consistently refused to afford Evans review to challenges to the constitutionality of statutes, as opposed to challenges to actions of the trial court leading to a conviction. See McLaughlin v. Bronson, 206 Conn. 267, 276, 537 A.2d 1004 (1988) (“The record furnished by the petitioner fails even to disclose a challenge in the trial court to § 18-26 on the grounds of vagueness or overbreadth. This claim of error is not in any way cognizable under State v. Evans.”)] State v. Thompson, 197 Conn. 67, 76 n.7, 495 A.2d 1023 (1985) (claim that the mandatory minimum sentence provision of General Statutes § 19-480(a), now General Statutes § 21a-278 (a), is unconstitutionally vague); State v. Cuvelier, 175 Conn. 100, 111, 394 A.2d 185 (1978) (challenge to constitutionality of General Statutes § 53a-47).

The two exceptions we have found to this line of authority are State v. Williams, 205 Conn. 456, 469-74, 534 A.2d 230 (1987), and State v. Schriver, 207 Conn. 456, 458-59, 542 A.2d 686 (1988). In Williams, the court reviewed and rejected the defendant’s Evans claims that General Statutes § 53a-167a is unconstitutionally vague and overbroad. There, the court granted review simply because the defendant’s claims “facially implicate^]” certain federal and state constitutional rights. Id., 460. In Schriver, the court similarly concluded that “a claim of unconstitutional vagueness . . . warrants appellate scrutiny [under Evans], because it implicates the fundamental due process right to fair warning and the record is adequate to facilitate review.” Id., 459. In neither Williams nor Schriver did the court advert to or distinguish State v. Thompson, supra, or State v. Cuvelier, supra. Faced with these apparently inconsistent applications of the Evans “rule of principled appellate discretion”; State v. Cosby, 6 Conn. App. 164, 172, 504 A.2d 1071 (1986); we con-elude that Schriver and Williams do not afford Evans review of the defendant’s claims, and that the McLaughlin-Thompson-Cuvelier line of authority-controls.

Both Schriver and Williams involved constitutional challenges to the vagueness of statutes, and the court emphasized the defendant’s fundamental right to fair warning. See also State v. McKenna, 11 Conn. App. 122, 125, 525 A.2d 1374, cert. denied, 205 Conn. 806, 531 A.2d 939 (1987) (Evans review granted to vagueness challenge). In Schriver, the court distinguished McLaughlin on the bases that the appellant had not filed transcripts of the trial court proceedings, and that the court had already determined the vagueness claim to be meritless. State v. Schriver, supra.

The fact that neither the Supreme Court in Schriver and Williams, nor this court in McKenna, adverted to Thompson or Cuvelier, and the Supreme Court’s view of McLaughlin as discussed in Schriver, suggest that a vagueness challenge supported by an adequate appellate record is an exception to the McLaughlin-Thompson-Cuvelier general nonreviewability line of authority. In this case, however, the defendant mounts no vagueness challenge.

Furthermore, review under Evans is supposed to be a “narrow [exception]” to the general rule of nonreviewability of “issues, constitutional or otherwise, that have not been preserved for appeal in the trial court.” McLaughlin v. Bronson, supra, 276. The “ancient and sound” policies; State v. Hinckley, 198 Conn. 77, 81, 502 A.2d 388 (1985); requiring that claims be made at trial in order to be reviewed on appeal, should not be abandoned, and the trial should not be reduced to “a Kafkaesque academic test which [the trial judge] would be determined on appeal to have failed because of questions never asked of him and issues never clearly presented to him.” State v. Cosby, supra, 174. We do not believe that Evans review has been stretched to allow review under the circumstances of this case.

Finally, our limited review of the record in this case convinces us that the defendant’s claims are not truly of constitutional dimension. He claims that the state constitutional provision regarding the right to bear arms; Conn. Const., art. I, § 15; confers on him an individual constitutional right to possess a pistol. Even if we assume without deciding that there is such an individual constitutional right, similar constitutional provisions in other states have been repeatedly interpreted to be subject to reasonable limitation. See, e.g., People v. Blue, 190 Colo. 95, 102-103, 544 P.2d 385 (1975); State v. Cartwright, 246 Or. 120, 134-36, 418 P.2d 822 (1966); Carfield v. State, 649 P.2d 865, 871-72 (Wyo. 1982). The defendant has not established that this prohibition applicable to convicted felons is unreasonable. His related claim that General Statutes § 53a-217 violated his constitutional right to possess a pistol for purposes for self-defense simply finds no factual support in this record. The defendant’s claim that General Statutes § 53a-217, as applied to him, violates federal and state equal protection clauses is also unsupported by the record. His claim that the statute is an ex post facto law founders because, although the defendant’s prior conviction preceded the enactment of General Statutes § 53a-217, the criminalized conduct, namely, his possession of the pistol, did not. See State v. Rollinson, 203 Conn. 641, 646, 526 A.2d 1283 (1987); Landers v. State, 250 Ga. 501, 299 S.E.2d 707 (1983); Cases v. United States, 131 F.2d 916 (1st Cir. 1942), cert. denied, 319 U.S. 770, 63 S. Ct. 1431, 87 L. Ed. 1718 (1943); 1 W. LaFave & A. Scott, Substantive Criminal Law (1986), p. 139. Similarly, the defendant’s claims that § 53a-217 constitutes a bill of attainder under the federal and state constitutions are unsupported by the record. See De Veau v. Braisted, 363 U.S. 144, 80 S. Ct. 1146, 4 L. Ed. 2d 1109 (1960); L. Tribe, American Constitutional Law (2d Ed.) p. 643. In sum, the record discloses that the defendant has simply attempted to create constitutional claims which are unsupported by the record in this case. We therefore decline to review the claims further.

There is no error.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 53a-217. criminal use of pistol, revolver OR ELECTRONIC DEFENSE WEAPON: CLASS D FELONY, (a) A person is guilty of criminal possession of a pistol, revolver or electronic defense weapon when he possesses a pistol, revolver or electronic defense weapon and has been convicted of a capital felony, a class A felony, a class B felony, except a conviction under section 53a-86, 53a-122 or 53a-196a, a class C felony, except a conviction under 53a-87, 53a-152, 53a-153 or 53a-196b, or a felony under sections 53a-60 to 53a-60c, inclusive, 53a-72a, 53a-72b, 53a-95, 53a-103, 53a-103a, 53a-114, 53a-136 or 53a-216. For the purposes of this section, ‘convicted’ means having a judgment of conviction entered by a court of competent jurisdiction.”

       The court also properly instructed the jury regarding the use of prior felony conviction evidence as affecting the credibility of a witness. The court’s discussion of this evidence was specifically limited to Banta and the three other witnesses who were ex-felons. In addition, at several points in its charge to the jury, the court made clear that the jury was to consider the evidence against each defendant and the evidence on each count against each defendant separately.

       Another factor which, of course, must be considered in the appropriate case is the effect of the joinder upon a defendant’s right to testify or not to testify. See, e.g., State v. Edwards, 10 Conn. App. 503, 506-10, 524 A.2d 648, cert. denied, 204 Conn. 808, 528 A.2d 1155 (1987). We need not consider this factor in the present case, however, because the defendants do not assert that these constitutional rights were impaired in any way by the trial court’s refusal to sever the trial of the firearms charges from the trial of the robbery charges.

       “[Practice Book] Sec. 619. former conviction. Where the information alleges, in addition to the principal offense charged, a former conviction or convictions, such information shall be in two separate parts, each signed by the prosecuting authority. In the first part, the particular offense with which the accused is charged shall be set out, and in the other part the former conviction or convictions shall be alleged. In alleging the former conviction, it is sufficient that the information allege the date when, the town or city where, and the court wherein such conviction was obtained and the crime of which the defendant was convicted, all of which may be stated in accordance with the provisions of Sec. 618.”
      “[Practice Book] Sec. 840. two part information or indictment. When an information or indictment is divided into two parts under Sec. 619, on a finding of guilty on the first part of the information or indictment, a plea shall be taken and, if necessary, election made on the second part and the trial thereon proceeded with. If the defendant elects a jury trial on the second part of the information or indictment, such trial may be had to the same or to another jury as the judicial authority may direct.”

       Since a challenge to the sufficiency of a probable cause determination under the Connecticut constitution is governed by the stricter Aguilar-Spinelli test, rather than the Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527, reh. denied, 463 U.S. 1237, 104 S. Ct. 33, 77 L. Ed. 2d 1453 (1983), standard of the federal constitution; State v. Kimbro, 197 Conn. 219, 496 A.2d 498 (1985); we consider the defendants’ claim only under our state’s more protective constitutional standard.

       As briefed by the defendants, this claim goes only to the conviction for robbery in the first degree. Although Banta was also convicted of criminal possession of a pistol, his argument on this issue does not appear to focus upon that aspect of this case. In fact, the evidence on that charge included the direct testimony of Banta himself wherein he admitted that he was in possession of the pistol as charged. Accordingly, in considering this claim of error, we confine our review to an examination of the effect, if any, which the challenged instructions may have had on the jury’s consideration of the evidence against both defendants on the robbery offense.

       Even if we were to accept the defendants’ characterization of the dispute at trial as one which revolved around intent, the framing of that issue by the defendants themselves—“[wjhether there was an intent to rob or [whether instead] an intent to regain property which DeMartino had withheld wrongfully”—belies any suggestion that intent in this case was proved by circumstantial evidence. What the defendants’ intent was on March 8, therefore, was largely dependent upon which version of the events of that evening the jury chose to credit, the victim’s or Banta’s.

       In their combined brief, the defendants jointly argue that General Statutes § 53a-217 is unconstitutional. Habich was acquitted of this offense. In light of our approval of the trial court’s refusal to sever the robbery and criminal possession of a pistol counts, we find no merit in Habich’s claim that his trial on the allegedly unconstitutional criminal possession offense prejudiced him with respect to his trial on the robbery offense. No authority is cited for this proposition. We therefore consider this claim only as it bears on Banta’s judgment of conviction for criminal possession of a pistol in violation of General Statutes § 53a-217.


source: Caselaw Access Project

author: Stoughton, J.

license: Public Domain

text:
    Ardis Davis et al. v. Borough of Naugatuck
    (5903)
    Borden, O’Connell and Stoughton, Js.
    Submitted on briefs January 7—
    decision released July 12, 1988

      M. Leonard Caine III filed a brief for the appellant (defendant).

      Thomas F. Gudsnuk filed a brief for the appellees (plaintiffs).
   Stoughton, J.

The defendant has appealed from the judgment rendered in favor of the plaintiffs after a trial to the court. We find error in part.

The plaintiff Ardis Davis alleged that she suffered injuries on May 19, 1979, when she struck a pothole in an intersection in the borough of Naugatuck while operating a vehicle owned by her husband, the plaintiff Denman Davis, and while in the exercise of due care. In a second count, the plaintiff Denman Davis alleged that his automobile was substantially damaged by the occurrence. Each plaintiff alleged a breach of statutory duty by the defendant in that there was a large hole in the traveled portion of the street or streets which was hazardous for vehicular traffic, there had been no attempt to repair, there were no warning signs, the streets were not reasonably safe, the defendant knew or should have known of the condition, and the condition had existed for sufficient time so that the defendant had actual or constructive notice of it.

The trial court found that the roadway was defective and that the defendant was on notice of the defect. It found that the plaintiff operator was free of contributory negligence, that she suffered a fractured thumb, that the defect was the sole proximate cause of the injuries and damage sustained by the plaintiffs, and that the plaintiffs had made a timely claim therefor. The court rendered judgment for Ardis Davis in the amount of $3924.85 and for Denman Davis in the amount of $175.32.

In its memorandum of decision, the trial court referred to testimony of Ardis Davis that she had been aware of the pothole before the occurrence of the incident giving rise to this action, that she had complained of it to representatives of the defendant, and that on the night of May 19,1979, it was raining and, although she was looking out for the pothole, she was prevented by the rain and by lights of an oncoming vehicle from seeing it. She also testified that she had previously been able to straddle the pothole because her own automobile had a wider space between its wheels than did her husband’s vehicle.

The defendant claims that the court erred (1) in concluding that the claimed defect was the sole proximate cause of the plaintiffs’ injuries and damage, (2) in concluding that the plaintiff was free of contributory negligence, and (3) in awarding damages in excess of the amount sought in the statement of the amount in demand attached to the complaint.

General Statutes § 13a-149 provides in part that any person injured in person or property by means of a defective road may recover damages from the party bound to keep it in repair. To recover under this statute for breach of statutory duty, the plaintiffs must prove by a fair preponderance of the evidence that the defective highway was “ ‘the sole proximate cause of the injuries and damages claimed, which means that the plaintiff[s] must prove freedom from contributory negligence.’ ” Foster v. Waterford, 186 Conn. 692, 695, 443 A.2d 490 (1982), quoting Lukas v. New Haven, 184 Conn. 205, 207, 439 A.2d 949 (1981).

The defendant’s first two claims of error involved questions of fact for the trier to determine and the conclusions to be drawn by the trier therefrom. The defendant asserts that the conclusions of the trial court were not supported by the evidence and were clearly erroneous.

Where 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). This court cannot find facts or draw conclusions from primary facts found, but can only review such findings to determine whether they could legally, logically and reasonably be found. Spinello v. State, 12 Conn. App. 449, 454-55, 531 A.2d 167 (1987). The question is not whether we might have drawn a different conclusion from the facts in evidence, but whether the trial court reasonably and logically could have concluded as it did. We as an appellate body cannot retry the case or substitute our judgment for that of the trial court. Wolk v. Wolk, 191 Conn. 328, 330, 464 A.2d 780 (1983). Our review of the record, transcripts and briefs shows sufficient support for the findings and conclusions of the trial court.

In its remaining claim of error, the defendant asserts that the trial court erred in that the damages awarded by the trial court exceed the amount claimed by the plaintiffs. At the end of the complaint there appears the following statement: “The Plaintiffs Claim: 1. Damages within the jurisdiction of this Court, not in excess of $2500.” The defendant maintains that it was clearly erroneous on the part of the trial court to award more than the amount claimed. The plaintiffs contend that the amount of an award is a matter peculiarly within the province of the trier of fact; Kiniry v. Danbury Hospital, 183 Conn. 448, 461, 439 A.2d 408 (1981); and that it would put form over substance to limit relief to the amount claimed. The plaintiffs rely upon Robben v. Hartford Electric Light Co., 1 Conn. App. 109, 468 A.2d 1266 (1983), in which we held that the trial court had erred in reducing the amount of damages awarded by a jury to the amount requested by the ad damnum.

The required contents of a complaint are set out in General Statutes § 52-91 and Practice Book § 131. Prior to 1977, § 52-91 required that the plaintiffs complaint contain a demand for the relief to which he supposed himself entitled. The ad damnum, the claim for money damages, limited the amount of the judgment although it could be increased by amendment. Bridgeport Hardware Mfg. Corporation v. Bouniol, 89 Conn. 254, 261, 93 A. 674 (1915); see also Thomas v. Katz, 171 Conn. 412, 415, 370 A.2d 978 (1976). The amount of the matter in demand as disclosed by the complaint determined whether jurisdiction was in the Superior Court or in the Court of Common Pleas. Holmquist v. Spinelli, 139 Conn. 429, 431-32, 94 A.2d 621 (1953). General Statutes § 52-259 provided for one entry fee for entering civil causes in the Superior Court, and a lower entry fee for entering causes in the Court of Common Pleas.

No. 77-497 of the 1977 Public Acts amended General Statutes § 52-91 and eliminated the requirement that a complaint contain an ad damnum. Practice Book § 131 was similarly amended. See Robben v. Hartford Electric Light Co., supra. The statute provided that the demand for relief should not allege the amount of damages sought, but should be a statement of the remedy sought and an allegation that the matter is within the jurisdiction of the court “or on or after July 1, 1978, a statement that the amount, legal interest or property in demand is less than seven thousand five hundred dollars, exclusive of interest and costs, or is not less than seven thousand five hundred dollars, as the case may be.” (Emphasis added.) Public Acts 1977, No. 77-497, was enacted during the Robben trial, and we held that the amendments to the statute and the rules of practice, being procedural, applied to pending actions and that the trial court had erred in reducing the amount of damages awarded by a jury to the amount requested in the ad damnum.

Although the requirement that a complaint contain an ad damnum clause has been eliminated, there has been a requirement since July 1, 1978, that the complaint contain a statement that the amount in demand is more or less than a certain amount. This amount has changed with various amendments. Public Acts 1983, No. 83-144, amended § 52-91 to provide that the demand for relief be on a separate page of the complaint and that it set forth that the amount in demand is $15,000 or more, $2500 or more but less than $15,000, or less than $2500. This is the way the statute appeared at the time of trial and the way it appears today.

The significance of July 1,1978, is that on that date, and since that time, Connecticut has had a unified court system. On July 1, 1978, the Superior Court became the sole court for all causes of action in Connecticut except for actions in which the Probate Court had original jurisdiction. General Statutes § 51-164s. As § 52-91 has been amended, General Statutes § 52-259, providing for court fees, has also been amended. On the date on which this action was commenced, and up until today, § 52-259 has provided for an entry fee in one amount for each civil cause in the Superior Court except for limited classes of cases including those in which the amount in demand is less than $2500. In those cases, the entry fee is less than in cases in which the matter in demand exceeds that amount. The legislature has provided for a greater or lesser entry fee depending upon the matter in demand since July 1, 1978. Since July 1, 1978, § 52-259 has provided for an additional entry fee in any case in which the plaintiff amends his complaint to increase the matter in demand over the amount which determines the entry fee.

The plaintiffs in this case stated that their claim was less than $2500, thus qualifying for the lower entry fee. Although the entry fee has been increased since that time, the amount which triggers the greater entry fee has remained at $2500. At all times since the action was commenced, the plaintiffs might have amended their demand for relief to an amount in excess of $2500, if they believed that it was warranted, upon payment of an additional entry fee. This they failed to do.

The statement of the amount in demand serves other purposes in addition to determining the entry fee. If the amount in demand is not less than $15,000, the fees which may be taxed as costs in favor of the prevailing party are greater than are the fees which may be taxed in civil actions in which the amount in demand is less than $15,000. General Statutes § 52-257 (a) and (c). If the amount in demand is less than $15,000, certain cases may be referred to a factfinder pursuant to General Statutes § 52-549n, or to an arbitrator pursuant to General Statutes § 52-549u.

There may well be practical consequences which flow from the statement of the amount in demand as well as the procedural consequences to which we have referred. For example, if a plaintiff states that the amount in demand is less than $2500, the defendant may well decide that he will not incur the expense of retaining expert witnesses. He may decide against the additional expense and time which a jury trial would entail. He might, in certain cases, decide against reporting the matter to his liability insurance company if he had not already done so, preferring to bear the expense of any judgment against him to a possible loss of coverage or increase in premium. There may be other practical consequences, but these are sufficient to suggest that the defendant ought to be able to rely upon the plaintiff’s own assessment of the value of his case.

Since July 1,1978, there has been a requirement that a complaint in an action such as this include a statement that the amount in demand does or does not exceed a certain amount. From this statement, various important consequences flow. There is nothing unjust in holding that the plaintiff is limited in the recovery of damages by the amount demanded in the required statement in or attached to the complaint. It was always open to the plaintiffs in this case to seek to amend the demand for relief upon payment of an additional entry fee. Their failure to do so must operate to limit their recovery.

There is error in part, the judgment is set aside as to the award of damages and the case is remanded to the trial court with direction to modify the judgment so that it totals no more than $2500.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 13a-149. damages for injuries by means of defective roads and bridges. Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair. No action for any such injury sustained on or after October 1,1982, shall be brought except within two years from the date of such injury. No action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation. If the injury has been caused by a structure legally placed on such road by a railroad company, it, and not the party bound to keep the road in repair, shall be liable therefor. No notice given under the provisions of this section shall be held invalid or insufficient by reason of any inaccuracy in describing the injury or in stating the time, place or cause of its occurrence, if it appears that there was no intention to mislead or that such town, city, corporation or borough was not in fact misled thereby.”

       Public Acts 1977, No. 77-497, provided in pertinent part:
      “Sec. 2. Section 52-91 of the general statutes is repealed and the following is substituted in lieu thereof:
      “There shall be but one form of civil action and the pleadings therein shall be as follows: The first pleading on the part of the plaintiff shall be known as the complaint and shall contain a statement of the facts constituting the cause of action and a demand for the relief [to which he supposes himself to be entitled], WHICH SHALL NOT ALLEGE THE AMOUNT OF MONEY DAMAGES SOUGHT, IF ANY, BUT SHALL BE A STATEMENT OF THE REMEDY SOUGHT AND AN ALLEGATION THAT THE MATTER IS WITHIN THE JURISDICTION OF THE COURT OR ON OR AFTER JULY 1,1978, A STATEMENT THAT THE AMOUNT, LEGAL INTEREST OR PROPERTY IN DEMAND IS LESS THAN SEVEN THOUSAND FIVE HUNDRED DOLLARS, EXCLUSIVE OF INTEREST AND COSTS, OR IS NOT LESS THAN SEVEN THOUSAND FIVE HUNDRED DOLLARS, AS THE CASE MAY BE.”

       Public Acts 1983, No. 83-144, entitled An Act Concerning the Demand for Relief in Civil Actions, provided: “Section 52-91 of the general statutes is repealed and the following is substituted in lieu thereof:
      “There shall be one form of civil action. The first pleading on the part of the plaintiff shall be known as the complaint and shall contain a statement of the facts constituting the cause of action and, ON A SEPARATE PAGE OF THE COMPLAINT, a demand for the relief, which [shall not allege the amount of money damages sought, if any, but] shall be a statement of the remedy OR REMEDIES sought, [and an allegation that the matter is within the jurisdiction of the court or, on or after July 1, 1981, a statement that] WHEN MONEY DAMAGES ARE SOUGHT IN THE DEMAND FOR RELIEF, THE DEMAND FOR RELIEF SHALL SET FORTH: (1) THAT the amount, legal interest or property in demand is [less than] fifteen thousand dollars OR MORE, exclusive of interest and costs; [, or is not] OR (2) THAT THE AMOUNT, LEGAL INTEREST OR PROPERTY IN DEMAND IS TWO THOUSAND FIVE HUNDRED DOLLARS OR MORE BUT IS less than fifteen thousand dollars, [as the case may be. If] EXCLUSIVE OF INTEREST AND COSTS; OR (3) THAT the amount, legal interest or property in demand is less than [five thousand dollars or is less than] two thousand five hundred dollars, [a statement that the demand is less than five thousand dollars or is less than two thousand five hundred dollars shall be included in the complaint in lieu of the statement that the amount, legal interest or property in demand is less than fifteen thousand dollars] EXCLUSIVE OF INTEREST AND COSTS. IN ADDITION, IN A CONTRACT ACTION IN WHICH ONLY MONEY DAMAGES ARE SOUGHT AND IN WHICH THE AMOUNT, LEGAL INTEREST OR PROPERTY IN DEMAND IS LESS THAN FIFTEEN THOUSAND DOLLARS, EXCLUSIVE OF INTEREST AND COSTS, THE DEMAND FOR RELIEF SHALL ALSO SET FORTH WHETHER OR NOT THE REMEDY SOUGHT IS BASED UPON AN EXPRESS OR IMPLIED PROMISE TO PAY A DEFINITE SUM.”


text:
    James J. McKeever v. Andre von Reiter
    (6034)
    Bieluch, Stoughton and Norcott, Js.
    Argued April 20—
    decision released July 19, 1988

      James J. McKeever, pro se, the appellant (plaintiff).

      Mark F. Katz, for the appellee (defendant).
   Stoughton, J.

This is an appeal from a judgment rendered for the defendant in accordance with certain findings of fact made by a factfinder. General Statutes § 52-549U.

The plaintiff sought to recover for damage to his automobile engine allegedly caused by work improperly done by the defendant. The action was commenced by service of a writ of summons and complaint, and the plaintiff properly utilized form 103.1 (JD-CV-1, Rev. 9-83). See Practice Book § 49. The section of the form with the heading “case type” was completed using the judicial department case type codes contained in form 103.1. The major code designated was “C” and the minor code designated was “90,” indicating a contract action. After the pleadings had been closed, there having been no claim for a jury trial, the trial court referred the case to a factfinder. The factfinder made his report to the court and, after overruling an objection to the findings of fact, the court rendered judgment for the defendant. The plaintiff appeals from the judgment, claiming that the court erred in several respects. Dis-positive of this appeal is the claim that the factfinder lacked jurisdiction to hear the case.

General Statutes § 52-549n provides that the court may refer to a factfinder “any contract action pending in the superior court in which only money damages are claimed and which is based upon an express or implied promise to pay a definite sum, and in which the amount, legal interest or property in demand is less than fifteen thousand dollars exclusive of interest and costs.” Practice Book § 546D contains the same provision for reference to a factfinder. Only contract actions claiming money damages, based upon a promise to pay a definite sum, and in which the amount in demand is less than $15,000, may be referred to a fact-finder.

The plaintiffs complaint alleged that he took his automobile to the defendant to have the oil and oil filter changed, that the engine failed while he was driving the automobile the next day, and that he discovered that there was no oil in the engine. He alleged that the damage was caused by the defendant’s negligent installation of the oil filter, oil or oil plug in the automobile, and that as a result of the defendant’s negligence he suffered substantial damages. Nowhere in the complaint did the plaintiff allege a contract or a promise to pay a definite sum.

Even though the plaintiff improperly coded the action on form 103.1 as a contract action, it is predicated on negligence and not on contract. The factfinder was thus not empowered to hear the case, and it should not have been referred to him.

There is error, the judgment is set aside and the case is remanded for a new trial.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 52-549n. certain contract actions REFERRED TO FACT-FINDERS. RULES OF PROCEDURE. In accordance with the provisions of section 51-14, the judges of the superior court may make such rules as they deem necessary to provide a procedure in accordance with which the court, in its discretion, may refer to a fact-finder for proceedings authorized pursuant to this chapter, any contract action pending in the superior court in which only money damages are claimed and which is based upon an express or implied promise to pay a definite sum, and in which the amount, legal interest or property in demand is less than fifteen thousand dollars exclusive of interest and costs. Such cases may be referred to a fact-finder only after the pleadings have been closed, a trial list claim has been filed, no claim for a jury trial has been filed at the time of reference, and the time prescribed in section 52-215 for filing a jury trial claim within thirty days of the return day or within ten days after the issue of fact has been joined has expired.”

       These codes are used to designate any contract action except for contract actions dealing with construction, insurance policies, specific performance or collections.

       “[Practice Book] § 546D.—referral of cases to fact-finders. The court, on its own motion, may refer to a fact-finder any contract action pending in the superior court in which money damages only are claimed, which is based upon an express or implied promise to pay a definite sum, and in which the amount, legal interest or property in demand is less than fifteen thousand dollars, exclusive of interest and costs. Such cases may be referred to a fact-finder only after the pleadings have been closed, a trial list claim has been filed, and the time prescribed for filing a jury trial claim has expired.”


author: Foti, J.

text:
    State of Connecticut v. James H. Thomas, Jr.
    (6054)
    Borden, Spallone and Foti, Js.
    Argued April 6—
    decision released July 19, 1988

      A. Paul Spinella, with whom, on the brief, was Lana M. Glovach, for the appellant (defendant).

      MitchellS. Brody, deputy assistant state’s attorney, with whom, on the brief, was Kevin P. McMahon, assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134, larceny in the fifth degree in violation of General Statutes § 53a-125a and larceny in the sixth degree in violation of General Statutes § 53a-125b. The defendant claims on appeal that the court erred (1) in denying his motion for a continuance, (2) in its charge to the jury, and (3) in admitting into evidence the defendant’s prior convictions. We find no error.

From the evidence presented, the jury could reasonably have found the following facts. On December 14, 1985, in a Stop & Shop supermarket in West Hartford, the defendant was under observation by a store detective, Terell Carey, for approximately ten minutes. The surveillance was terminated, and approximately three minutes later Carey saw the defendant approach the check-out counter with a cart containing groceries and a beige pocketbook. It was later determined that this pocketbook belonged to Sadie Drazen who was shopping in the store at the time. As the defendant approached the check-out counter, he abandoned the cart of groceries, took hold of the straps of the beige pocketbook, and left the store. The defendant entered a green automobile that was illegally parked in front of the store. There was a black male, Paza McKenzie, seated in the car. Carey followed the defendant out of the store and upon approaching the car observed the beige pocketbook on the floor of the car. He asked several questions about the ownership of the beige pocketbook, to which the defendant replied that it belonged to his wife. At this time, an unidentified female exited the Stop & Shop store and approached the automobile. Carey asked her to prove that she owned the beige pocketbook; her response was limited to examining the contents of the pocketbook. Carey then saw the defendant push a black pocketbook under the front seat of the car. The defendant refused to accompany Carey back into the store. Carey reached into the car and pulled out the black pocketbook. The defendant grabbed the straps of the black pocketbook and they broke off in his hands. He then pulled a knife from his pocket as he stepped out of the green car. At this time, the manager of the supermarket approached the automobile. Carey dropped the black pocketbook near the left rear wheel of the car, subdued the defendant and led him back into the store. In the store, the defendant began to struggle; he was disarmed and handcuffed by an off duty police officer, and placed under arrest by another officer who had arrived on the scene. Carey then returned to the green car and retrieved the black pocketbook, which was found to contain various credit cards and a checkbook belonging to a woman who had reported that these items had been stolen from her place of business three days earlier.

The store manager retrieved the beige pocketbook from under the green car and showed it to Drazen, who identified it as the pocketbook which had been removed from her shopping cart in the store. The pocketbook contained over $100 in cash and $200 in traveler’s checks.

I

The defendant’s first claim is that the trial court erred in refusing to grant his motion for a one week continuance. In particular, the defendant claims that the court erred in refusing to grant his motion for a continuance because he was ordered to trial forty-eight hours after he filed a pro se motion for a speedy trial, thereby denying him an opportunity properly to prepare his defense. The facts pertaining to this claim are not in dispute. The state filed its original information on January 7,1986, and, on January 17,1986, the defendant filed a motion, pro se, for a speedy trial. The court, Barall, J., granted that motion on February 13,1986, and denied defense counsel’s oral request for a continuance. A substitute information was filed on February 14,1986, and a second substitute information with a bill of particulars was filed on February 20,1986. On that same date, February 20,1986, defense counsel filed his motion for a continuance which was heard by the court, Barall, J. Defense counsel maintained that he was not prepared for trial and that he had just received the bill of particulars and substitute information that morning, which alleged five new offenses. He also represented that he had been involved in two trials and had been unable to investigate the case adequately, to prepare motions to suppress and dismiss, or to interview witnesses. The court denied the request for a one week continuance, determining that defense counsel had adequate time to investigate the case because the bill of particulars tracked information in a police report which had been made available to the defendant earlier. The court ordered the trial to commence immediately after the close of the hearing in order to hear the testimony of a state’s witness, the owner of the stolen beige pocketbook, who would otherwise have been unavailable to testify. The court also told defense counsel that if additional time was required for preparation of the case, he could raise the issue with the judge who would be presiding at the trial. Shortly thereafter, that same day, defense counsel appeared before the trial court, Vasington, J., and apprised the judge that his motion for a continuance had been denied by Judge Barall and that he was unprepared to go to trial. He stated that he had no objection to the state’s witness, Drazen, being examined “so that she need not make a second trip to this court.” At this time, the defendant did not expressly move for a continuance but limited his remarks to recounting the events which had transpired earlier that day before Judge Barall.

We begin by noting that, although the court denied the defendant’s motion for a continuance, there were two substantial recesses in the courtroom proceedings, one from February 20,1986, until February 24,1986, and the second from February 27,1986, until March 3, 1986. In fact, the only witness who gave testimony on February 20, 1986, was Drazen, whom the defendant agreed to have testify that day even if the continuance were granted. Thus, the sole issue presented by this claim of error is whether requiring the defendant to defend against the state’s case on Monday, February 24, 1986, rather than on Thursday, February 27, 1986, caused sufficient prejudice, if any, to constitute reversible error. We find that it did not.

“ ‘A motion for continuance is addressed to the discretion of the trial court, and its ruling will not be overturned absent a showing of a clear abuse of that discretion. . . . ’ Vossbrinck v. Vossbrinck, 194 Conn. 229, 232, 478 A.2d 1011 (1984), cert. denied, 471 U.S. 1020, 105 S. Ct. 2048, 85 L. Ed. 2d 311 (1985). Traditionally, whether to grant or deny a continuance is within the sound discretion of the court; State v. Olds, 171 Conn. 395, 402, 370 A.2d 969 (1976); however, discretion should be exercised so as to accomplish the ends of substantial justice. State v. Battle, 170 Conn. 469, 476, 365 A.2d 1100 (1976).” (Citation omitted.) Atkins v. Atkins, 13 Conn. App. 114, 117, 534 A.2d 909 (1987). Further, a presumption exists that the trial court exercised that discretion properly. State v. McKnight, 191 Conn. 564, 577, 469 A.2d 397 (1983); State v. Jeustiniano, 172 Conn. 275, 285, 374 A.2d 209 (1977). It is the defendant’s burden to show that the denial of his request for a continuance was an abuse of discretion or so arbitrary that it violated his right to due process, in that the denial prejudiced his ability to defend himself. State v. Aillon, 202 Conn. 385, 394, 521 A.2d 555 (1987).

The defendant conceded, during oral argument in this court, that the record is devoid of any evidence supporting his claim that he was prejudiced by the court’s ruling on his motion for a one week continuance. In fact, the record establishes that neither direct nor cross-examination was hampered by the court’s ruling, that the defendant was able to call McKenzie, the driver of the vehicle, and that he also called a former Stop & Shop employee. Finally, the defendant stipulated that he could not, despite his best efforts, locate the unidentified female who the defendant claimed owned the beige purse.

The defendant, therefore, has not demonstrated any specific prejudice arising from the court’s denial of his motion for a one week continuance; State v. Marra, 195 Conn. 421, 437-38, 489 A.2d 350 (1985); nor has he established that he suffered substantial prejudice, generally, as a consequence of the court’s ruling. See State v. Fraenza, 9 Conn. App. 228, 234, 518 A.2d 649 (1987). We conclude that the court did not abuse its discretion in refusing to grant the defendant’s motion for a continuance.

II

The defendant’s second claim is that the court’s instructions failed to differentiate adequately between the black purse, which was on the floor of the vehicle, and the beige purse, which was the object of the robbery. The defendant contends that he had an interest in the black purse which was superior to that of the Stop & Shop security guard, and that even if he used a knife to defend that interest it could not constitute robbery. Although we agree that, if the defendant’s use of force or threatened use of force was used to retain possession of the black purse, the jury could not have convicted him of robbery, we do not agree that the court failed to differentiate adequately between the two purses.

The court’s instruction to the jury on the charge of robbery explained, on at least six separate occasions, that if they found that the defendant had used force or had threatened the use of force, they must find that the force was used to retain possession of the beige pocketbook in order to convict the defendant of robbery. “The issue is whether the charge, read as a whole, presents the case to the jury so that an injustice will result.” State v. Arroyo, 13 Conn. App. 687, 696, 539 A.2d 581 (1988). The court’s instruction on the charge of robbery was more than adequate to ensure that the jury considered the element of the use of force or the threatened use of force with regard to the beige pocketbook rather than the black pocketbook.

Ill

The defendant next claims that the trial court abused its discretion in allowing into evidence, for impeachment purposes, the defendant’s prior convictions for larceny and burglary. The defendant claims that the prejudicial effect of admitting these convictions outweighed their probative value.

The trial court denied the defendant’s motion to suppress evidence of his prior conviction for larceny in the second degree in 1978, and three convictions for burglary in the third degree, one in 1978 and two in 1979. After the defendant testified, these convictions were admitted into evidence for the limited purpose of impeaching his credibility.

“Evidence that a criminal defendant has been convicted of crimes on prior occasions generally is not admissible.” State v. Geyer, 194 Conn. 1, 5, 480 A.2d 489 (1984). Evidence of prior convictions is admissible, however, if the defendant has been convicted of a crime carrying a term of imprisonment of more than one year and the prior convictions are admitted for the purpose of impeaching his credibility if it is in issue. State v. Crumpton, 202 Conn. 224, 228, 520 A.2d 226 (1987); State v. Harrell, 199 Conn. 255, 260, 560 A.2d 1041 (1986). In determining whether prior convictions may be admitted, the court must also consider three factors: “(1) the extent of the prejudice likely to arise; (2) the significance of the commission of the particular crime in indicating untruthfulness; and (3) its remoteness in time.” State v. Nardini, 187 Conn. 513, 522, 447 A.2d 396 (1982).

The defendant concedes that his prior convictions bear directly on his credibility and that it was within the court’s discretion to admit these convictions for the purposes of impeaching his credibility after he had testified in his own defense. The defendant contends, however, that the prior convictions were so similar to the crimes for which he was being tried that the admission of these convictions caused undue prejudice, thus violating the first prong of the test articulated by State v. Nardini, supra. We disagree.

In reviewing a claim that the trial court erred in admitting prior convictions of the defendant, great deference is given to the trial court. “The trial court, because of its intimate familiarity with the case, is in the best position to weigh the relative merits and dangers of any proffered evidence.” State v. Geyer, supra, 13. Where, as here, the prior convictions bear directly on the veracity of the defendant-witness, the “ ‘trial court’s decision denying a motion to exclude [the] witness’ prior record, offered to attack his credibility, will be upset only if the court abused its discretion.’ ” State v. Binet, 192 Conn. 618, 623, 473 A.2d 1200 (1984), quoted in State v. Crumpton, supra, 229.

In this case, the defendant has provided no basis for concluding that the admission of his prior convictions was prejudicial. To the contrary, the court’s limiting instruction was more than adequate to dispel any prejudicial effect caused by the similarity of the prior convictions to the crimes for which the defendant was standing trial. There was no abuse of discretion in the court’s decision to deny the defendant’s motion to exclude his prior criminal record.

There is no error.

In this opinion the other judges concurred.

       This claim of error also raises issues of ineffective assistance of counsel. Our Supreme Court has repeatedly held that such claims are properly pursued in a petition for a new trial or a writ of habeas corpus. State v. Leecan, 198 Conn. 517, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986); State v. Stanley, 197 Conn. 309, 313, 497 A.2d 46 (1985). We, therefore, limit our review to the defendant’s claim that the court abused its discretion in denying his motion for a continuance.

       Although the defendant failed to comply with our rules of practice in not providing a verbatim statement of all relevant portions of the charge; Practice Book § 4065 (d) (2); the state has provided this court with relevant portions of that charge. We, therefore, conduct this limited review to ensure that no injustice has been done. See State v. Cascone, 10 Conn. App. 163, 165 n.l, 521 A.2d 1067, cert. denied, 203 Conn. 808, 525 A.2d 522 (1987).