author: DiPENTIMA, J.

text:
    RICHARD HAMLIN v. COMMISSIONER OF CORRECTION
    (AC 29455)
    Flynn, C. J., and DiPentima and Arnold, Js.

      Argued January 14
    officially released April 7, 2009

      Jodi Zils Gagne, special public defender, for the appellant (petitioner).

      Laurie N. Feldman, special deputy assistant state’s attorney, with whom, on the brief, were GailP. Hardy, state’s attorney, and Kelly A. Masi, assistant state’s attorney, for the appellee (respondent).
   Opinion

DiPENTIMA, J.

In an amended petition for a writ of habeas corpus filed November 20, 2006, the petitioner, Richard Hamlin, alleged that his attorneys at his criminal trial provided ineffective assistance of counsel when they failed to cross-examine adequately one of the state’s witnesses and failed to present evidence of third party culpability. Following a trial on the merits, the habeas court denied the petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly (1) denied his motion for a continuance and (2) determined that he had failed to prove that he had received ineffective assistance of counsel. We affirm the judgment of the habeas court.

“On June 24,2001, the [petitioner] and [Omar] Vaughn were involved in a fight on the sidewalk of 179 Mather Street in Hartford. The following day, Vaughn returned to 179 Mather Street on his bicycle, hoping to ‘peace up the situation’ with the [petitioner]. As Vaughn approached that location, the [petitioner] emerged from a crowd, gun in hand. Vaughn immediately discarded his bicycle and ran. While running, Vaughn was shot in the back of his lower left thigh and knee. The [petitioner] fled with [William] Moore in a gold Oldsmobile Alero.” State v. Hamlin, 90 Conn. App. 445, 448, 878 A.2d 374, cert. denied, 276 Conn. 914, 888 A.2d 86 (2005).

“On the day of the shooting, Moore voluntarily entered the Hartford police station and gave a statement. In that statement, he indicated that, from his car, he had witnessed the events that unfolded in front of 179 Mather Street. Moore stated that after the assailant shot Vaughn, the assailant entered Moore’s vehicle and told Moore to drive. Because the assailant was armed, Moore ‘did what he said and dropped him off on the next comer.’ Moore did not identify the assailant in his June 25, 2001 statement to the police. ... On December 17,2002, Moore, who was being held in lieu of bond on various charges regarding an unrelated domestic incident, was brought to court pursuant to a writ of habeas corpus ad testificandum. On that day, the [petitioner] and Moore were placed in the same holding cell at the Hartford Superior Court. While in the cell, the [petitioner] stated to Moore, ‘You know, if they put you on the stand, just say you wasn’t with me.’ That same day, Moore made his first identification of the [petitioner] as the assailant in this case. Moore testified at both the December 18, 2002 suppression hearing and at trial as to the [petitioner’s] statement in the holding cell, which the prosecution used as evidence of the [petitioner’s] consciousness of guilt.” Id., 449-50.

On January 14, 2003, the jury found the petitioner guilty of assault in the first degree in violation of General Statutes § 53a-59 (a) (5) and carrying a pistol without a permit in violation of General Statutes § 29-35 (a). State v. Hamlin, supra, 90 Conn. App. 447. The court sentenced the petitioner to thirteen years incarceration, five years mandatory minimum, with ten years of special parole. Id., 448. The petitioner appealed to this court, and this court affirmed the judgment of conviction. Id.

In his amended petition for a writ of habeas corpus, the petitioner claimed that his trial attorneys, Lisa Sosa and Sara Bernstein, provided ineffective assistance when, inter alia, they failed (1) to cross-examine Moore regarding the conversation he had with the petitioner when they were in a holding cell together prior to the petitioner’s trial and (2) to present evidence of third party culpability.

At the habeas trial, Bernstein testified regarding her representation of the petitioner. She stated that another attorney, Sosa, was assigned to the petitioner’s case and that she, Bernstein, had been assigned to assist Sosa. She testified that she and Sosa met with the petitioner, discussed the benefits of and drawbacks to potential trial strategies and filed the proper pretrial motions in the case. She stated that Sosa was very thorough in her representation of the petitioner, committing time in the evenings and on the weekends to trial preparation and exploring every avenue of defense. Bernstein testified that she and Sosa originally planned on presenting an alibi theory of defense but that the witness provided by the petitioner gave conflicting versions of her story, eventually placing the petitioner at the scene of the crime and informing them that she was leaving the state. Bernstein explained that there were additional credibility concerns about the witness due to a prior conviction for giving a false statement to the police to exculpate another individual.

Bernstein further testified that she and Sosa made a tactical decision not to cross-examine Moore regarding the petitioner’s alleged statement in the holding cell because it would open the door to other testimony that would be detrimental to the petitioner’s case and cause Moore to repeat a potentially negative statement by the petitioner. Bernstein explained that instead, the strategy was to raise doubts as to Moore’s credibility by focusing on his prior inconsistent statements and felony convictions. She testified that Sosa cross-examined Moore repeatedly regarding whether he had received any consideration from the prosecution for his testimony. With regard to evidence of third party culpability, Bernstein testified that the petitioner provided the names of two individuals who could have been the shooter but that, upon investigation, neither yielded information sufficient to present a third party culpability claim. She stated that the petitioner provided her and Sosa with conflicting information, none of which proved helpful to his defense.

The petitioner testified that prior to trial he was placed in a cell with his friend, Moore. He stated that Moore left the cell with a state’s inspector and the detective who had been assigned to the petitioner’s case. He further testified that when Moore came back to the cell fifteen minutes later, Moore asked the petitioner numerous questions regarding his case.

In its memorandum of decision, the court stated: “The court is satisfied that attorneys Sosa and Bernstein represented the petitioner competently. Although Sosa failed to examine Moore regarding the placement of Moore with the petitioner in the same cell, the petitioner has failed to demonstrate, but for that failure, a reasonable probability that the outcome of the trial would have been different. This court is simply not convinced that had [the petitioner’s] counsel cross-examined Moore about the incident in the cell, it would have changed the outcome of the trial.” The court also stated that the petitioner had presented no evidence that, had it been pursued, the defense of third party culpability would have likely been successful. The court concluded that the petitioner had failed to demonstrate, under the standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), that he was prejudiced by his counsel’s alleged ineffective assistance and denied the petition for a writ of habeas corpus. On November 27,2007, the court granted certification to appeal. This appeal followed.

I

The petitioner first claims that the habeas court improperly denied his motion for a continuance. We do not agree.

On July 25, 2007, the day of trial, counsel for the petitioner informed the court that he had been unable to locate Moore. Counsel asked if he could proceed with the witnesses who were present and then have a continuance so that he could locate Moore “perhaps in another month or so ... .” The court instructed the petitioner to move forward with his available witnesses and then to provide the court with information regarding why he was unable to locate Moore and what relevant testimony Moore would provide.

Following the testimony of Bernstein and the petitioner, the court inquired of counsel for the petitioner as to his missing witness. In response, counsel stated that his investigator had been in touch with Moore’s parole officer but had been unable to serve Moore with a subpoena. He stated: “My investigator has not spoken with him, but I have information from speaking with my client regarding what Mr. Moore would testify to.” Specifically, he stated that he anticipated Moore would testify regarding his cooperation with the state and his conversation with the petitioner in the holding cell. The respondent, the commissioner of correction, objected to the motion. Thereafter, the court denied the petitioner’s motion for a continuance.

“It is well settled that [t]he determination of whether to grant a request for a continuance is within the discretion of the trial court, and will not be disturbed on appeal absent an abuse of discretion. ... A reviewing court is bound by the principle that [e]very reasonable presumption in favor of the proper exercise of the trial court’s discretion will be made. . . . Our role as an appellate court is not to substitute our judgment for that of a trial court that has chosen one of many reasonable alternatives. . . . Therefore, on appeal, we . . . must determine whether the trial court’s decision denying the request for a continuance was arbitrary or unreason-abl[e].” (Internal quotation marks omitted.) State v. Lopez, 280 Conn. 779, 786-87, 911 A.2d 1099 (2007); Mitchell v. Commissioner of Correction, 93 Conn. App. 719, 724, 891 A.2d 25, cert. denied, 278 Conn. 902, 896 A.2d 104 (2006). “[T]he right of a [petitioner] to a continuance is not absolute and the propriety of a denial of one is to be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.” (Internal quotation marks omitted.) Fuller v. Commissioner of Correction, 75 Conn. App. 814, 817, 817 A.2d 1274, cert. denied, 263 Conn. 926, 823 A.2d 1217 (2003); see State v. Hamilton, 228 Conn. 234, 240, 636 A.2d 760 (1994).

Our review of the record reveals that the court did not abuse its discretion when it denied the petitioner’s motion for a continuance. The trial date had been set three times. The third and final time was at the petitioner’s request, by motion dated April 9, 2007, citing the unavailability of counsel. The petitioner first sought time to locate Moore on the day of trial. “We are especially hesitant to find an abuse of discretion where the court has denied a motion for continuance made on the day of the trial.” (Internal quotation marks omitted.) State v. Calderon, 82 Conn. App. 315, 320, 844 A.2d 866, cert. denied, 270 Conn. 905, 853 A.2d 523, cert. denied, 543 U.S. 982, 125 S. Ct. 487, 160 L. Ed. 2d 361 (2004). Moreover, counsel had not, since the filing of the amended habeas petition some eight months prior to trial, successfully located Moore or spoken to him regarding his testimony. The only information counsel provided to the court as to the substance of Moore’s anticipated testimony came from the petitioner himself. See State v. Brunetti, 279 Conn. 39, 80-82, 901 A.2d 1 (2006) (denial of motion for continuance to find witness not abuse of discretion when motion made during trial and counsel had ample time to locate witness), cert. denied, 549 U.S. 1212, 127 S. Ct. 1328, 167 L. Ed. 2d 85 (2007).

We therefore conclude that the court did not abuse its discretion in denying the petitioner’s motion for a continuance.

II

The petitioner next claims that the court improperly determined that he was not denied the effective assistance of counsel. Specifically, he claims that his attorneys were “severely deficient” because they failed to cross-examine Moore regarding his conversation with the petitioner in the holding cell and to present evidence of third party culpability. We disagree.

“Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) McClean v. Commissioner of Correction, 103 Conn. App. 254, 262, 930 A.2d 693 (2007), cert. denied, 285 Conn. 913, 943 A.2d 473 (2008).

“In Strickland v. Washington, [supra, 466 U.S. 687], the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel’s assistance was so defective as to require reversal of [the] conviction. . . . That requires the petitioner to show (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.” (Internal quotation marks omitted.) Andrades v. Commissioner of Correction, 108 Conn. App. 509, 511-12, 948 A.2d 365, cert. denied, 289 Conn. 906, 957 A.2d 868 (2008); see Johnson v. Commissioner of Correction, 288 Conn. 53, 62-63, 951 A.2d 520 (2008).

“The first part of the Strickland analysis requires the petitioner to establish that . . . counsel’s representation fell below an objective standard of reasonableness considering all of the circumstances. ... [A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. . . . Turning to the prejudice component of the Strickland test, [i]t is not enough for the [petitioner] to show that the errors [made by counsel] had some conceivable effect on the outcome of the proceeding. . . . Rather, [the petitioner] must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” (Internal quotation marks omitted.) Andrades v. Commissioner of Correction, supra, 108 Conn. App. 512.

Because a petitioner must establish both prongs to prevail, a habeas court may dismiss the petitioner’s claim if he fails to satisfy either prong. Griffin v. Commissioner of Correction, 98 Conn. App. 361, 365-66, 909 A.2d 60 (2006). “Accordingly, a court need not determine the deficiency of counsel’s performance if consideration of the prejudice prong will be dispositive of the ineffectiveness claim.” Id., 366; see Nardini v. Manson, 207 Conn. 118, 124, 540 A.2d 69 (1988).

On the basis of our review of the evidence presented at the habeas trial, specifically Bernstein’s testimony, we agree with the court that the petitioner failed to establish a reasonable probability that had trial counsel cross-examined Moore with regard to the petitioner’s alleged statement in the holding cell, the outcome of the trial would have been different. Bernstein testified that Sosa subjected Moore to extensive cross-examination regarding his prior inconsistent statements and felony convictions to challenge his credibility. She further testified that she and Sosa decided that cross-examining Moore regarding his conversation with the petitioner in the holding cell would have been detrimental to the petitioner’s case but that Sosa did question Moore as to whether he was receiving consideration from the prosecution for his testimony, to which he responded in the negative. The trial transcript supports this testimony. Thus, the petitioner failed to present evidence that had counsel cross-examined Moore further, there is a reasonable probability that the outcome of the trial would have been different.

Similarly, we agree that the petitioner did not meet his burden of establishing a reasonable probability that the outcome of the trial would have been different had trial counsel presented evidence of third party culpability. Our review of the record supports the court’s conclusion that “[t]he petitioner has presented absolutely no evidence that had the third party culpability defense been pursued, it would have likely been successful.” The petitioner bears the burden of establishing prejudice in his claim of ineffective assistance of counsel. See Burke v. Commissioner of Correction, 90 Conn. App. 370, 374-75, 877 A.2d 885, cert. denied, 275 Conn. 926, 883 A.2d 1241 (2005). “Mere conjecture and speculation are not enough to support a showing of prejudice.” Id., 378. Here, the court had evidence, particularly Bernstein’s testimony, that the state’s case against the petitioner was strong and that there was insufficient evidence to present a third party culpability claim. Such evidence is insufficient to meet the petitioner’s burden under the Strickland test. See Andrades v. Commissioner of Correction, supra, 108 Conn. App. 512. Accordingly, the court properly denied the petition for a writ of habeas corpus.

The judgment is affirmed.

In this opinion the other judges concurred.

       The petitioner also argued that he suffered ineffective assistance of counsel on the basis of his trial attorneys’ failure to cross-examine two witnesses adequately, failure to call the petitioner’s investigator as a witness and improper objection to the state’s attempt to explore the petitioner’s placement in a holding cell with a witness. These allegations are not at issue on appeal.

       Sosa did not testify at the habeas trial.


source: Caselaw Access Project

author: PELLEGRINO, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. R.K.C.

    (AC 28834)
    Harper, Lavine and Pellegrino, Js.

      Argued January 15
    officially released April 7, 2009

      James B. Streeto, assistant public defender, for the appellant (defendant).

      Adam, E. Mattel, special deputy assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Margaret E. Kelley, senior assistant state’s attorney, for the appellee (state).

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse, we decline to use the defendant’s full name or to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

   Opinion

PELLEGRINO, J.

The defendant, R.K.C., was charged in a seven count information with one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1), two counts of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1) and four counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2), with all counts relating to alleged incidents involving his minor stepdaughter at various times from 1997 through 2005. After a jury trial, the jury found the defendant not guilty of two counts of risk of injury to a child and one count of sexual assault in the first degree but found him guilty of two counts of risk of injury to a child and two counts of sexual assault in the second degree. The incidents for which the jury found the defendant not guilty occurred from 1997 to 1999 and involved allegations of improper touching. They included an incident when the victim was in bed and the defendant put his hands under the covers and placed a finger in her “butt,” which he claimed involved his looking for a television remote control device. The counts of which the defendant was found guilty involved incidents that occurred in 2003 and 2005, and it is from that conviction that the defendant appeals.

The facts that the jury reasonably could have found are as follows. In 2003, when the victim was thirteen years old, the defendant, at the home that he shared with his wife (the victim’s mother) and the victim’s other siblings, improperly touched the victim’s breasts and penetrated her vaginally with his penis at various times. In 2005, before the family moved to Georgia and while the victim’s mother was at work, the defendant attempted to have sexual intercourse with the victim, which she resisted. The defendant, however, did improperly touch the victim and digitally penetrated her vagina. The victim disclosed this incident to her mother, who then took her to stay with the defendant’s sister. While there, the victim disclosed the defendant’s sexual abuse to her maternal aunt, A. A called the department of children and families, which began an investigation that ultimately resulted in the defendant’s arrest. Additional facts will be mentioned as required.

At the trial, the state was permitted to introduce the testimony from A, who testified that the defendant had attempted to have sexual contact with her prior to the incidents with the victim, when A was fourteen years old. In addition, the court permitted the state to offer expert testimony from a social worker, Donna Vitulano, as to the behavioral characteristics of sexually abused children. The court also allowed the testimony of the victim’s mother and A to corroborate the accusations of the victim.

The defendant now appeals to this court on four grounds: (1) A’s testimony as to her accusations involving the defendant was impermissible uncharged misconduct and, therefore, not admissible; (2) the court improperly admitted Vitulano’s opinion testimony; (3) the court should have instructed the jury that the victim had a motive in testifying against him; and (4) the court’s limiting instructions as to the constancy of accusation testimony were improper. We disagree with the defendant’s claims and, accordingly, affirm the judgment of the trial court.

I

The defendant first claims that the court improperly allowed the testimony of A as to her accusations of sexual abuse involving the defendant. Specifically, the defendant claims that it was improper to admit A’s testimony that in late 1996 or early 1997, when she was fourteen years old, the defendant went into her room while she was sleeping, bit her breasts and tried to put his hand inside her pants. The defendant argues that A’s testimony was impermissible uncharged misconduct and, therefore, not admissible. We disagree.

In State v. DeJesus, 288 Conn. 418, 470, 953 A.2d 45 (2008) (en banc), a decision by which this court is bound, our Supreme Court held that uncharged misconduct evidence is admissible in sex crime cases to prove that the defendant had a propensity to engage in aberrant and compulsive criminal sexual behavior. The court concluded that uncharged sexual misconduct evidence would be allowed if it satisfied three factors: (1) it was relevant on the basis of its being “not too remote in time . . . similar to the offense charged; and . . . committed upon persons similar to the prosecuting witness”; (internal quotation marks omitted) id., 473; (2) its probative value outweighed its prejudicial effect; and (3) a limiting instruction was given to the jury. Id., 474.

In the present matter, the testimony of A satisfied the three factors articulated in DeJesus. First, as to relevance, A’s testimony was not too remote, as it related to an incident occurring in late 1996 or early 1997, and the victim alleged that the first incident with the defendant occurred in 1997. The allegation was similar to the offense charged in that the defendant attempted to touch both A and the victim inappropriately while they were in bed. Additionally, A and the victim were both minor females related to the defendant’s wife.

Second, the probative value of the uncharged misconduct outweighed the prejudicial effect of A’s testimony. See State v. John G., 100 Conn. App. 354, 364, 918 A.2d 986 (“[f]urthermore, striking similarities between the charged and uncharged misconduct, such as the nature of the crimes and the identity of the victims, make the evidence of prior misconduct highly probative”), cert. denied, 283 Conn. 902, 926 A.2d 670 (2007). Moreover, A’s testimony would not unduly raise the jury’s emotions causing prejudice to the defendant because A’s testimony related to only one incident, whereas the victim testified about repeated and graphic abuse at the hands of the defendant. See State v. Raynor, 84 Conn. App. 749, 762, 854 A.2d 1133 (holding victim’s testimony about one uncharged incident of improper touching unlikely to arouse prejudice in jury when graphic testimony of sexual assault already in evidence), cert. denied, 271 Conn. 935, 861 A.2d 511 (2004). Last, the court gave the jury a limiting instruction that A’s testimony was to be considered solely for the purpose of motive and intent. Accordingly, on the basis of DeJesus and in light of the foregoing, we conclude that the court properly admitted A’s testimony.

II

The defendant next claims that the court improperly admitted Vitulano’s expert opinion testimony. The defendant claims that Vitulano’s testimony was inadmissible because it identified merely possible behaviors of child victims of sexual abuse instead of the more reasonably probable behaviors of such victims. Specifically, the defendant argues that Vitulano’s testimony was too general in that she testified that any reaction to sexual abuse was possible. He argues further that Vitulano’s testimony answering hypothetical questions constituted a form of vouching for the credibility of the victim and, therefore, improperly swayed the jury. We disagree.

In State v. Ramirez, 101 Conn. App. 283, 295-96, 921 A.2d 702, cert. denied, 283 Conn. 909, 928 A.2d 539 (2007), cert. denied, 552 U.S. 1109, 128 S. Ct. 895, 169 L. Ed. 2d 747 (2008), this court held that it was not an abuse of the trial court’s discretion to allow the state’s expert witness to testify that a delay in a victim’s reporting of sexual abuse could stem from a variety of factors that are based on the individual’s circumstances. Ramirez stated that “expert testimony should be admitted when: (1) the witness has special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues.” (Internal quotation marks omitted.) Id., 294-95. This court concluded that reasons for delay in reporting sexual abuse are not within the common knowledge and experience of the average juror and, therefore, would be helpful to the jury. Id., 295-96.

The present matter is indistinguishable from Ramirez. Like Vitulano, the expert in Ramirez “presented a general description of the responses that are common among victims in these situations.” Id., 295. The expert in Ramirez testified that child victims of sexual abuse displayed many different characteristics and that immediate, delayed and incremental disclosure was common. As previously stated, characteristics of abuse victims are not generally within the common knowledge and experience of an average juror. Id.; see also State v. Spigarolo, 210 Conn. 359, 378, 556 A.2d 112 (“the consequences of the unique trauma experienced by minor victims of sexual abuse are matters beyond the understanding of the average person”), cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989). Accordingly, Vitulano’s testimony satisfied the requirements for admission of expert testimony because (1) she had special skill and knowledge as a social worker with extensive training and twenty-five years experience, (2) that skill or knowledge was not common to the jury, and (3) the testimony would be helpful to the jury in considering the issues presented. See State v. Ramirez, supra, 101 Conn. App. 294-95. We conclude, therefore, that it was not improper for the court to admit the testimony of Vitulano as to the general behavioral characteristics of child victims of sexual assault.

The defendant additionally argues that the corut impermissibly allowed Vitulano to answer the state’s hypothetical questions that exactly mirrored the facts of the present case. Specifically, the defendant argues that Vitulano’s answers to the state’s hypothetical questions vouched for the victim’s credibility and usurped the function of the jury. We disagree.

Section 7-4 (c) of the Connecticut Code of Evidence allows for hypothetical questions to be posed “provided that the hypothetical question (1) presents the facts in such a manner that they bear a true and fair relationship to each other and to the evidence in the case, (2) is not worded so as to mislead or confuse the jury, and (3) is not so lacking in the essential facts as to be without value in the decision of the case. ...” See C. Tait & E. Prescott, Connecticut Evidence (4th Ed. 2008) § 7.8.1, p. 428; see also id., § 7.10.1, p. 433 (“Before a hypothetical question can be asked on direct examination, the facts on which it is based must be in evidence. . . . On direct examination, the question must contain only facts fairly within the evidence.” [Citation omitted.]).

In the present matter, the state’s use of hypothetical questions properly conformed with our code of evidence. The hypothetical questions posed by the state used facts that properly were in evidence, did not specifically reference the victim and did not elicit from Vitulano a statement as to the victim’s credibility. Compare State v. Christiano, 228 Conn. 456, 459-63, 637 A.2d 382 (no error when expert answered hypothetical questions based on hypothetical victims in similar situation without specifically referencing victim), cert. denied, 513 U.S. 821, 115 S. Ct. 83, 130 L. Ed. 2d 36 (1994) with State v. Grenier, 257 Conn. 797, 803 n.7, 778 A.2d 159 (2001) (error when expert specifically stated “ ‘[the victim’s] statements were very credible’ ”). We conclude, therefore, that the court properly allowed the expert’s answers to the state’s hypothetical questions.

Ill

The defendant next claims that the court should have instructed the jury that the victim had a motive in testifying against the defendant. Specifically, the defendant claims that the victim’s motivation in testifying was a critical factor in the jury’s determination of the case. The defendant claims that the allegations made by the victim were false because she did not want to relocate with her family to Georgia. We are not persuaded.

In State v. Reiser, 196 Conn. 122, 133, 491 A.2d 382 (1985), our Supreme Court held that a defendant was not entitled to a requested jury instruction regarding a victim’s possible motive for testifying unless there was evidence to support the defendant’s allegation that the victim was a culpable party. In the present matter, as in Reiser, the defendant merely offered an uncorroborated theory that the victim lied about the abuse simply to avoid moving to another state with her family. As no actual evidence was offered to show that the victim was a culpable party, the court properly followed Reiser and denied the defendant’s request for a specific jury instruction.

IV

Last, the defendant claims that the court’s limiting instructions as to the constancy of accusation testimony were improper. The defendant specifically takes issue with the court’s instruction as follows: “Under our law, those witnesses cannot testify as to all the details, if in fact there were such details, but can only give a general statement just to confirm and corroborate the complaining — -that the complaining witness did say those things.” (Emphasis added.) He claims that the court’s instruction implied that there were considerable, additional details that the jury was not told and, therefore, left the jury with the impression that the victim’s allegations were likely to be true. We disagree.

In State v. Troupe, 237 Conn. 284, 677 A.2d 917 (1996) (en banc), our Supreme Court restricted the constancy of accusation doctrine. Previously, the doctrine had allowed a corroborating witness to testify as to the complaint and the details of the complaint once the victim had testified regarding the sexual assault and the identity of the person to whom the assault was disclosed. Id., 297. In Troupe, however, our Supreme Court held that a constancy of accusation witness may testify, not as to the details of the complaint, but only as to the fact and timing of the victim’s complaint. Id., 304. It further concluded that, should additional details be necessary, they are limited to only those details that will associate the victim’s complaint with the pending charge, such as the time and place of the attack or the identity of the alleged attacker. Id.

Our careful review of the record in this matter leads us to the conclusion that the court’s instructions did not imply that there were additional details of which the jury was not being told or that the jury assumed there were. The court specifically stated in its instruction to the jury: “[T]hose witnesses cannot testify as to all the details, if in fact there were such details, but can only give a general statement just to confirm and corroborate the complaining . . . .” (Emphasis added.) Further, the court instructed the jury that the out-of-court statements made to the witnesses were not to be considered to prove the truth of the matter asserted but, rather, were to be used to determine if the victim’s statements made out of court were consistent with her statements made in court. The jurors also were instructed to consider only the evidence from the testimony of the witnesses and the exhibits that were admitted and that they must follow all of the court’s limiting instructions. “A jury is presumed to follow the court’s instructions, absent clear indication to the contrary.” State v. Mitchell, 110 Conn. App. 305, 314, 955 A.2d 84, cert. denied, 289 Conn. 946, 959 A.2d 1012 (2008). We conclude, therefore, that the jury followed the court’s instructions and that there was no implication by the court of additional facts outside of the evidence.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant concedes that this court is bound to follow precedent of our Supreme Court but argues, nonetheless, to preserve his rights before the higher court, that State v. DeJesus, supra, 288 Conn. 418, should be reversed because it was wrongfully decided. See West Hartford v. Murtha Cullina, LLP, 85 Conn. App. 15, 24, 857 A.2d 354 (“It is axiomatic that . . . this court [is] without authority to overrule the decisions of our Supreme Court. In the absence of direction by our Supreme Court, inferior courts must continue to adhere to its decisions.”), cert. denied, 272 Conn. 907, 863 A.2d 700 (2004).


author: PER CURIAM.

text:
    MICHAEL TUTKO ET AL. v. CLAUDIA GOODMAN ET AL.
    (AC 29494)
    Flynn, C. J., and Bishop and Borden, Js.
    Argued January 20
    officially released April 7, 2009

      Tyrone N. Tutko, pro se, the appellant (plaintiff).

      Paul M. Cramer, with whom, on the brief, was Louis J. Dagostine, for the appellee (defendant Metropolitan Property & Casualty Insurance Company).
   Opinion

PER CURIAM.

In this negligence action, the pro se plaintiff Tyrone N. Tutko appeals from the judgment of the trial court rendered in favor of the defendant Metropolitan Property & Casualty Insurance Company after a jury verdict. The plaintiff claims that the court improperly (1) added great confusion to his presentation of his case, (2) precluded him from presenting the testimony of his treating physician and (3) denied his motion to set aside the verdict and for a new trial. We affirm the judgment of the trial court.

The plaintiff was a passenger in an automobile that was involved in a collision on July 15,2003. He originally brought this case against the owner and operator of the other vehicle, Claudia Goodman. Subsequently, when it became apparent that Goodman’s liability insurance was inadequate to cover the plaintiffs losses, the defendant was cited in as a party defendant as the underin-sured motor vehicle insurance carrier of the plaintiff, and the case proceeded as an action against the defendant for underinsured motorist benefits. The court, to avoid jury instructions about the issue of insurance and the defendant’s corporate status, decided that the case would be presented to the jury as an action against Goodman. This was done, however, only after the defendant’s counsel assured the court on the record that the defendant would honor any judgment up to the limits of its coverage. The jury returned a verdict in favor of Goodman and, on the verdict form, answered “No” to the statement: “The plaintiff has proven by a preponderance of the evidence that Claudia Goodman was negligent in causing the accident with [the plaintiff].” After denying the plaintiffs postverdict motion, the court rendered judgment in favor of the defendant. This appeal followed.

The plaintiffs first claim is that the court improperly “add[ed] great confusion to [the] plaintiffs presentation of his case at trial.” The plaintiff raises three contentions under this general claim: (1) the court improperly granted the defendant’s motion to preclude the testimony of the plaintiffs treating orthopedic surgeon; (2) the court improperly precluded the plaintiffs references to insurance by presenting the case to the jury as a case against Goodman, rather than against the defendant; and (3) the court improperly dealt with a note from a juror at the end of the first day of evidence. None of these contentions has merit.

The first contention is irrelevant to the plaintiffs appeal because the jury never reached the issue of causation of his injury or damages. The second is without merit because the plaintiff did not object to the procedure adopted by the court. “[Although we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law.” (Internal quotation marks omitted.) Sakon v. Glastonbury, 111 Conn. App. 242, 258 n.5, 958 A.2d 801 (2008), cert. denied, 290 Conn. 916, 965 A.2d 554 (2009). The third requires more discussion but is meritless nonetheless.

As the court explained in its response to the plaintiffs motions for articulation, at the close of the first day of evidence, a juror sent a note to the court, indicating, in substance, that the jury might be in a position to conclude the case that day. Because of the possible implication that the jury may have disregarded the court’s instruction not to discuss the evidence until the conclusion of the presentation of evidence and the court’s instruction, on the day following receipt of the juror’s note, the court held a hearing in which it interviewed the juror in question. The juror assured the court that there had been no such discussion and that the context of the note was that the trial was being held within one week of Christmas and the jurors were interested in making sure their time was used efficiently. We see nothing improper about the court’s conduct in this regard.

The remaining claim of the plaintiff is that the court improperly denied his motion to set aside the verdict and for a new trial. The basis of this claim is that he was a passenger in a car that was hit from the rear by Goodman’s vehicle, and, therefore, he must recover damages. This claim is unavailing. The plaintiff merely refers us to the allegations of his complaint, without any reference to the transcript. Moreover, it is well settled that a plaintiff cannot recover merely by proving that a collision occurred; he must prove negligence. Winn v. Posades, 281 Conn. 50, 57, 913 A.2d 407 (2007). The jury found that he failed to do so. We see no reason to disturb that finding.

The judgment is affirmed.

       The other plaintiff in this case, Michael Tutko, is not involved in this appeal. We therefore refer herein to Tyrone Tutko as the plaintiff.

       The defendant Claudia Goodman was a defendant in name only, as we explain further in the opinion. We therefore refer herein to Metropolitan Property & Casualty Insurance Company as the defendant.

       Therefore, the jury did not reach the other two specific questions presented to it, namely, “Claudia Goodman’s negligence was the legal cause of [the plaintiff s] injuries,” and “[t]he jury awards the following for economic and non-economic damages . . .

       This also disposes of the plaintiffs second claim on appeal, namely, that the court improperly precluded the physician’s testimony.

       The defendant asserted in its brief in this court that the “plaintiff failed to preserve [this] claim of error by objection.” The plaintiff did not file a reply brief contesting this assertion and did not file a transcript of the trial court proceedings at which this procedure was adopted by the court. Therefore, we have no hesitation in accepting this assertion by the defendant. Moreover, we see no abuse of discretion by the court in adopting this procedure, which clearly was aimed at simplifying and clarifying the issues for the jury.


author: HARPER, J.

text:
    CORDELL JOHNSON v. WAYNE CLARK
    (AC 29338)
    Harper, Robinson and West, Js.

      Argued October 20, 2008
    officially released April 14, 2009

      Marc Darren, for the appellant (defendant).

      Jane R. Rosenberg, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (plaintiff).
   Opinion

HARPER, J.

The defendant, Wayne Clark, appeals from the judgment of dismissal rendered by the trial court on his appeal from a family support magistrate’s order. On appeal, the defendant claims that (1) the court improperly concluded that the family support magistrate did not exceed Ms authority when he contm-ued the matter of a contempt citation for purposes of moMtoring the compliance of the defendant after he paid the purge amount and (2) the family support magistrate improperly disregarded the court’s decisional law. We conclude that although the court properly dismissed the defendant’s appeal, it should have been dismissed on different grounds. We conclude that the court lacked subject matter jurisdiction over the claim by the plaintiff, Cordell Johnson, because the family support magistrate’s decision was not a final judgment. We therefore reverse the judgment and remand the case to the trial court with direction to dismiss the defendant’s appeal for lack of subject matter jurisdiction.

The record reveals the followmg facts and procedural Mstory. The plaintiff and the defendant are the unmarried parents of two minor children. On March 6, 2000, the family support magistrate, Denise Chisholm Langley, ordered child support to the plaintiff for the minor children. The plamtiff filed various motions for contempt over the years to attempt to have the defendant comply with the child support order. The defendant accumulated arrearages, owed to both the state and the plaintiff, totaling approximately $17,900 as of May 7, 2007.

On May 9, 2007, the defendant appeared at a contempt hearing, at wMch the family support magistrate, John P. McCarthy, found the defendant to be in contempt for wilfully failing to pay child support. Magistrate McCarthy ordered the defendant to pay Ms weekly payments and to remain in the custody of the commissioner of correction until he paid a purge amount of $900, which was the accumulated arrearage that he owed on a prior order. Magistrate McCarthy further ordered the defendant to return to court on June 20, 2007, if he satisfied the purge order, or, in the alternative, on May 16, 2007, if he did not satisfy the purge order. He further stated that if the purge was paid, the purge would be reviewed, nonetheless, on May 16, 2007. On May 16,2007, the defendant, who had paid the purge amount on May 9, 2007, appeared before the court requesting Magistrate McCarthy to “mark off’ the June 20, 2007 date because the purge was paid. Magistrate McCarthy denied the request and ordered the defendant to return on June 20, 2007, to review the defendant’s compliance with his weekly payments, with the proviso that the defendant could be excused by support enforcement services if he was in compliance.

Pursuant to General Statutes § 46b-231 (n), on May 23, 2007, the defendant appealed to the court from Magistrate McCarthy’s denial of his request to mark off the June 20, 2007 date. The defendant asserted that Magistrate McCarthy imposed a “continuing purge” order conditioned on the defendant’s making weekly payments. The defendant argued that Magistrate McCarthy exceed his authority by such order. Specifically, the defendant cited Iturrino v. Frison, Superior Court, judicial district of New London at Norwich, Docket No. FA-99-0117474-S (January 5,2007) (42 Conn. L. Rptr. 626), which held that a family support magistrate exceeds his authority in setting a continuing purge amount that would not purge a past contempt until all future obligations are met.

In a memorandum of decision filed November 2,2007, the court found that the defendant’s facts were not similar to those before the court in Iturrino and dismissed the defendant’s appeal. Specifically, it concluded that Magistrate McCarthy did not order a “continuing purge” but, instead, had directed the defendant, who still owed past due support payments, to return to the court to monitor his compliance with court orders. It further noted that the legal issue of whether the family support magistrate had the authority to order the defendant to return, after he had paid a purge order, was not before the court. This appeal followed. Additional facts will be set forth as necessary.

We first address the threshold jurisdictional issue of whether the family support magistrate’s decision was a final judgment. On February 7, 2008, prior to oral argument, support enforcement services filed a motion to dismiss the appeal that raised the issue of lack of jurisdiction. It contended that the trial court and this court lacked subject matter jurisdiction over the defendant’s claims because the order of the family support magistrate that denied the defendant’s request to mark off the continuation date was not a final judgment. On February 20, 2008, the defendant filed an objection to the motion to dismiss. On March 26, 2008, this court denied support enforcement services’ motion to dismiss on the ground that the trial court’s dismissal of the defendant’s appeal from the family support magistrate’s decision was an appealable final judgment.

The attorney general has raised this issue again in his brief and during oral arguments. We will review the attorney general’s claim as it relates to the trial court’s subject matter jurisdiction. “[B]ecause [a] determination regarding a trial court’s subject matter jurisdiction is a question of law, our review is plenary. . . . Moreover, [i]t is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at any time.” (Internal quotation marks omitted.) Embalmers’ Supply Co. v. Giannitti, 103 Conn. App. 20, 29, 929 A.2d 729, cert. denied, 284 Conn. 931, 934 A.2d 246 (2007).

A finding on a motion for contempt is a final judgment subject to review on appeal. See Potter v. Board of Selectmen, 174 Conn. 195, 196, 384 A.2d 369 (1978) (denial of motion for contempt is final judgment); Sgarellino v. Hightower, 13 Conn. App. 591, 594-96, 538 A.2d 1065 (1988) (finding of contempt subject to appellate review). The decision on appeal before the trial court, however, was not based on the magistrate’s factual findings or legal conclusions that the defendant was in wilful contempt or the magistrate’s determinations of the fine or incarceration imposed. Rather, the defendant appealed to the trial court from the magistrate’s subsequent decision, one week later, to have the defendant return to court for a subsequent review on his weekly payments. As a result, the magistrate’s decision is interlocutory in character, and the parties do not dispute the characterization of the ruling as such. The question before us is whether the form or content of the family support magistrate’s May 16, 2007 decision removed it from the trial court’s judicial review by way of appeal.

In determining whether certain interlocutory orders or rulings are final judgments for purposes of appeal, our appellate courts apply the well established Curcio test, which provides that “[a]n otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). In the present case, neither prong of the Curdo test is satisfied.

Under the first prong, the magistrate’s denial of the defendant’s request to mark off a subsequent hearing did not terminate a separate and distinct proceeding. On the contrary, the magistrate never made a determination on whether the defendant was in compliance with the court’s order for weekly payments. The defendant argues that he fully complied with the contempt order when he paid the purge amount. The defendant asserts that because the subsequent June 20, 2007 hearing was part of the paid purge order, the magistrate’s decision terminated a separate and distinct proceeding. To support his argument, the defendant relies on Iturrino v. Frison, supra, 42 Conn. L. Rptr. 626, and claims that the magistrate’s decision continued the contempt order, which was a final judgment. Iturrino, the court determined that a continuing purge is excessive when the magistrate orders weekly payments as purge amounts. Id., 627. That factual scenario is not present here, especially because Magistrate McCarthy ruled that the purge was paid.

Additionally, the contemnor in Iturrino essentially was being punished for his past contempt via paying a purge based on future payments. Id. Here, the record reflects that the magistrate ordered the defendant to maintain weekly payments. See footnote 6. Although we agree that a contempt finding is a final judgment, we do not agree that the magistrate’s decision to have the defendant return to review his weekly payments was a decision that terminated a separate and distinct proceeding. Our review of the decision reflects that the magistrate ordered a purge, but part of the defendant’s purge order entailed him maintaining weekly payments on the arrearage order of what already was owed. See, e.g., Kendall v. Pilkington, 253 Conn. 264, 278 n.7, 750 A.2d 1090 (2000) (“[A] finding of contempt is not necessarily vacated because the violator has purged himself. On the contrary, a contempt finding has collateral consequences, even when no longer ‘active,’ unless or until it is vacated or rendered invalid.”); Monsam v. Dearington, 82 Conn. App. 451, 456-57, 844 A.2d 927 (2004) (“[a]fter a finding of civil contempt, the court retains jurisdiction to vacate the finding or to give the contemnor the opportunity to purge the contempt by later compliance with a court order”). The magistrate’s decision to continue a review of the defendant’s compliance falls short of being conclusive in nature.

Under the second prong of Curcio, the magistrate’s denial of the defendant’s request to mark off a subsequent review did not so conclude the defendant’s rights such that further proceedings could not affect them. “In applying this prong of the Curcio test, our focus is on whether appellate review is necessary [in order] to prevent the irreparable loss of a cognizable legal right. ... An essential predicate to the applicability of this prong is the identification of jeopardy to [either] a statutory or constitutional right that the interlocutory appeal seeks to vindicate.” (Internal quotation marks omitted.) Rino Gnesi Co. v. Sbriglio, 98 Conn. App. 1, 10, 908 A.2d 1, cert. denied, 280 Conn. 945, 912 A.2d 480 (2006). At oral argument, the defendant argued that the magistrate’s decision violated his constitutional rights by threatening him with incarceration that is unwarranted by law. See Conn. Const., art. I, § 9. The defendant asserted that his failure to be in strict compliance would subject him to immediate incarceration. We find this to be a broad assumption and speculative, considering that the defendant has stated in his brief that he was not in strict compliance on several subsequent hearing dates after the May 9, 2007 decision, and he was never incarcerated for such failure to comply.

In support of his argument, the defendant relies on Berthiaume v. Berthiaume, Superior Court, judicial district of New Haven, Docket No. FA-98-0412981-S (August 11, 2000), which held that a magistrate did not have the authority to continue a contempt order for the purpose of monitoring compliance when the contemnor paid in full the complete arrearage owed. The contem-nor in Berthiaume had purged himself of any past due obligations. The present case is distinguishable. Here, the defendant still owed on his arrearage. The magistrate’s decision to have the defendant return to enforce compliance with past due weekly payments did not adversely affect the defendant’s rights because he would have been excused by support enforcement services from appearing before the magistrate had the defendant complied with his weekly payments. As noted previously, the record reflects that prior to the June 20, 2007 hearing, the defendant was not in compliance with his weekly payment obligation. Therefore, the magistrate’s decision to review whether the defendant was making his weekly payments did not conclude any of the defendant’s rights. Any further review on this issue would be speculative.

For the foregoing reasons, we conclude that the magistrate’s May 16, 2007 ruling is not a final judgment. As a result, because the defendant appealed from that ruling, the court should not have ruled on the merits of the appeal but, instead, should have dismissed the appeal for a lack of subject matter jurisdiction.

The form of the judgment is improper, the judgment is reversed and the case is remanded with direction to dismiss the appeal for lack of subject matter jurisdiction.

In this opinion the other judges concurred.

       The attorney general argued this appeal under the authority of General Statutes § 46b-231 (t) on behalf of support enforcement services, which is acting on behalf of the plaintiff, Cordell Johnson. For clarity, all references to the plaintiff in this opinion are to Johnson. All references to the defendant are to Clark.

       At the time of the present contempt proceeding, the plaintiff was seeking a child support order for a third child, bom in 2006, whom she alleged was fathered by the defendant. The third child is not the beneficiary of the support order at issue in this appeal.

       The application for contempt was filed on October 31, 2006, requesting the court to issue to the defendant a contempt order, income withholding, a plan to pay past due support and an order to participate in work activities.

       As of May 9, 2007, the defendant’s ordered weekly payments consisted of $117 per week for current child support and $83 per week for the accumulated arrearage owed. On the basis of our review of the record, we understand that the magistrate’s order, on May 9, 2007, to pay weekly payments to mean that the defendant was to stay in compliance of paying the arrearage order, which was his past due support. See footnote 6.

       During the May 9, 2007 contempt hearing, support enforcement services stated to the court the following:
      “The [plaintiffs] arrears are $6706.81 as of May 7, 2007. State of Connecticut arrears are $11,205.13 as of May 7, 2007. It was continued over for compliance and, also, the petitioner is appearing today on a subpoena. There is — last time at court the defendant had noted that he had paid the [plaintiff] $1000 direct, and that’s the reason for the subpoena. The defendant did pay $440 in a lump sum payment today. It still leaves him short $903.29. He is offering to pay the remaining delinquency off within two weeks plus his weekly payments." (Emphasis added.)

       The following colloquy occurred in the May 16, 2007 proceeding before the family support magistrate:
      “[The Plaintiff]: Well, actually, Your Honor, I’m looking — was this date just for a review, if he purged out?
      “[The Defendant’s Counsel]: Yes.
      “[The Plaintiff]: Now, that I’m looking further at this, it looks like it was— today was the review date. Yes.
      “[The Defendant’s Counsel]: Yes.
      “[The Plaintiff]: And further continued to June 20.
      “[The Defendant’s Counsel]: And at this point in time, Your Honor, my client has been found in contempt. The purge was set, and $900 of that purge has been paid. He has also paid for this week, as well. I have that receipt here. I would ask that based on the case of Iturrino v. Prison, [Superior Court, judicial district of New London at Norwich, Docket No. FA-99-0117474-S (January 5, 2007) (42 Conn. L. Rptr. 626)], this case be marked off.

        “The Court: Based on?
      “[The Defendant’s Counsel]: Iturrino . . . the case—
      “The Court: Right. But it’s not precedent. ... So, I’m going to have him come back. It’s excusable. It really isn’t.
      “[The Defendant’s Counsel]: I understand it’s on there; we’re going to get one over here, too.
      “The Court: No, but I got it from the highest authority.
      “[The Defendant’s Counsel]: Okay.
      “The Court: Okay. June 20. Thank you. Pay every week, sir. Okay.” See footnote 5.

       General Statutes § 46b-231 (n) (I) provides: “A person who is aggrieved by a final decision of a family support magistrate is entitled to judicial review by way of appeal under this section.”

       See footnote 4.

       The attorney general’s brief suggests that the issue of whether the family support magistrate’s May 16, 2007 decision constituted an appealable final judgment implicates the subject matter jurisdiction of this court. We emphasize, however, that this issue implicates the subject matter jurisdiction of the trial court, not the subject matter jurisdiction of this court. See Harvey v. Wilcox, 67 Conn. App. 1, 5, 786 A.2d 533 (2001) (“[t]o determine whether a seemingly interlocutory order of a family support magistrate is nonetheless final for purposes of appeal to the Superior Court, this court applies the finality test of State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983)” [emphasis added]); Gemmell v. Lee, 42 Conn. App. 682, 684 n.3, 680 A.2d 346 (1996) (“this court has jurisdiction to determine whether the trial court had subject matter jurisdiction to hear the case”).

       See footnote 4. The gravamen of this appeal, as noted by the court, is whether a contemnor, after satisfying a purge, can be ordered to return to court on a future date for the purpose of monitoring his compliance, such that if the contemnor is not in compliance at that future date, the court has the ability to exercise its contempt powers without further process. The defendant is appealing from the family support magistrate’s decision to have the defendant return to court on a future date, which the defendant characterizes as a “continuing purge” under Iturrino v. Frison, supra, 42 Conn. L. Rptr. 627.

       Although the defendant did not brief the issue of subject matter jurisdiction, we have relied on his argument as provided in his February 20, 2008 objection to support enforcement services’ motion to dismiss the appeal for lack of a final judgment.

       General Statutes § 46b-231 (m) (7) expressly provides for the magistrate to “make such orders as are provided by law to enforce a support obligation . . . See, e.g Board of Education v. Shelton Education Assn., 173 Conn. 81, 83, 376 A.2d 1080 (1977) (court ordered nonmonetary purge of incarceration).

       See footnote 11.


author: ROBINSON, J.

text:
    FAITH KILBURN v. PLAN AND ZONING COMMISSION OF THE TOWN OF WEST HARTFORD
    (AC 29248)
    DiPentima, Gruendel and Robinson, Js.

      Argued January 6
    officially released April 14, 2009

      Danielle B. Omasta, with whom was Bruce S. Beck, for the appellant (plaintiff).

      Patrick O. Alair, deputy corporation counsel, for the appellee (defendant).
   Opinion

ROBINSON, J.

This case involves a clash between the defendant, the plan and zoning commission of the town of West Hartford, and the owner of twenty-two shih tzus. The plaintiff, Faith Kilbum, the owner of the dogs, appeals from the judgment of the trial court dismissing her appeal from the defendant’s denial of her application for a special use permit. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the plaintiff’s appeal. The plaintiff, a West Hartford resident, applied for a special use permit from the defendant on November 3, 2004 (2004 application). In her application, the plaintiff requested a permit to maintain a kennel as defined by § 177-2 of the West Hartford Code of Ordinances (ordinances), to keep and to maintain twenty-two small indoor dogs on her premises. The ordinances require that any town resident who owns more than two dogs apply for a special use permit. See West Hartford Code of Ordinances § 177, attachment 1:3 (listing “kennel” as a permitted use in one-family residence districts subject to issuance of building or zoning permit and subject to § 177-42 [A]); § 177-2 (defining “kennel” as “[t]he keeping of three or more dogs over the age of six months”); § 177-38 (requiring special use permit before special permit use of land can be established); § 177-42 (A) (1) (setting forth procedures for obtaining special use permit).

On December 6, 2004, the defendant unanimously voted to approve conditionally the plaintiffs application and granted her a special use permit (2004 permit) effective December 24, 2004. The defendant attached the following conditions to its approval of the plaintiffs application: “a. The permit for a non-commercial residential scale ‘kennel’ is approved provided that the number of dogs on the premises is reduced to three (3) dogs. b. The required reduction in the number of dogs on site from twenty two (22) to three (3) shall be met within two (2) years from the date of this approval or no later than December 6, 2006.” The defendant further found that “[although . . . the dogs are receiving proper care and attention, the keeping of twenty-two (22) dogs on the premise is not appropriate or compatible with the residential neighborhood and further it is a violation of the West Hartford Zoning Regulations.”

The record does not indicate that the plaintiff took any substantive steps to reduce the number of dogs in her care during the ensuing two years, and, on October 20,2006, she filed an application for a special use permit (2006 application) with the defendant requesting that she be able to keep all twenty-two dogs. As part of her application, the plaintiff proposed that as the dogs pass away, she would not replace them. She represented in a letter attached to the application that she has owned the dogs for the previous twelve years, that her property has 3521 square feet of living area and that she lets the dogs outside in small groups of six to eight for no more than five minutes each, and not at all after 8 p.m.

A public hearing was held on December 4, 2006, and the defendant considered the plaintiffs application requesting approval to modify her previously approved special use permit. The defendant unanimously voted on that date to deny the plaintiffs application and made the following findings: “The proposed [s]peciai [u]se [p]ermit does not comply with the finding requirements of Section [177-42 (A) (5) (a)] of the [ordinances]. In particular the [defendant] noted that the keeping of twenty-two (22) dogs on the premises is not appropriate or in harmony with the residential neighborhood. . . . The [defendant] provided the applicant with a reasonable amount of time to reduce the number of dogs [through its conditional approval of the plaintiffs 2004 application].”

The plaintiff appealed from the defendant’s decision to the Superior Court on January 16, 2007, and filed an amended appeal on February 1, 2007, and a second amended appeal on May 2, 2007. The plaintiff claimed that the defendant’s action in denying her permit application was illegal, arbitrary and an abuse of discretion and requested judgment reversing the defendant’s decision. On July 26, 2007, the court issued a memorandum of decision and rendered judgment dismissing the plaintiffs appeal. The court found that the plaintiffs 2006 application was an application to amend or to modify her 2004 permit and not a new application for a special use permit. The court further found that the defendant sustained its burden of proof that the conditions attached to the plaintiffs 2004 permit should not be removed because without the conditions, the special use permit was in violation of § 177-42 (A) of the ordinances.

In its memorandum of decision, the court stated that “there was certainly substantial evidence before the [defendant] at the December 4, 2006 hearing to justify [the defendant’s] conclusion” that keeping twenty-two dogs is not appropriate or in harmony with a residential neighborhood. The court also found that the defendant could consider the plaintiffs failure to comply with the conditions of the 2004 permit, even though there was nothing in the ordinances that specifically permits the defendant to take her noncompliance into consideration. The court also noted that this appears to be an issue of first impression in Connecticut. This appeal followed.

Before we address the plaintiffs claims, we set forth the applicable standard of review. “When ruling upon an application for a special [permit], a planning and zoning board acts in an administrative capacity. . . . Generally, it is the function of a zoning board or commission to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. The [Appellate Court and] trial court [must] decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts. ... In applying the law to the facts of a particular case, the board is endowed with a liberal discretion, and its action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or illegal. . . . Although a zoning commission or board possesses the discretion to determine whether a proposal meets the standards established in the regulations, it lacks the discretion to deny a special permit if a proposal satisfies the regulations and statutes. . . .

“[C]ourts are not to substitute their judgment for that of the board, and . . . the decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing .... The trial court’s function is to determine on the basis of the record whether substantial evidence has been presented to the board to support [the board’s] findings. . . . [E]vidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . Where the board states its reasons on the record we look no further. . . . More specifically, the trial court must determine whether the board has acted fairly or with proper motives or upon valid reasons. . . . We, in turn, must determine whether the court properly concluded that the board’s decision to [deny the application for a special permit] was arbitrary, illegal or an abuse of discretion. . . . The evidence, however, to support any such [decision] must be substantial . . . .” (Citations omitted; internal quotation marks omitted.) Oakbridge/Rogers Avenue Realty, LLC v. Planning & Zoning Board, 78 Conn. App. 242, 246-48, 826 A.2d 1232 (2006).

The special permit, or special exception, as it is also known, is authorized by General Statutes § 8-2. “[Section] 8-2 explicitly enables the use of special exceptions. A special [exception] allows a property owner to use his property in a manner expressly permitted by local zoning regulations. . . . The proposed use, however, must satisfy standards set forth in the zoning regulations themselves as well as the conditions necessary to protect the public health, safety, convenience and property values. ... An application for a special permit seeks permission to vary the use of a particular piece of property from that for which it is zoned, without offending the uses permitted as of right in the particular zoning district. . . . When a special permit is issued, the affected property may be allowed an exception to the underlying zoning regulations, but it continues to be governed in the same manner as provided in the overall comprehensive plan. . . . [The special permit] provides a local zoning agency with some flexibility while maintaining standards applicable to all members of the municipality.” (Internal quotation marks omitted.) Smith Bros. Woodland Management, LLC v. Planning & Zoning Commission, 88 Conn. App. 79, 82-84, 868 A.2d 749 (2005).

I

The first component of the plaintiffs argument is that her 2006 application was an application for a new special use permit and not an application to modify or to amend the special use permit granted to her in 2004. She argued both in her brief and during oral argument that because the ordinances do not explicitly permit an amendment to a special use permit, her 2006 application must be considered an application for a new special use permit, which essentially would allow her to start over with a blank slate. The defendant claims that this argument was not presented properly to the trial court and that it would be highly prejudicial to the defendant for this court to consider the plaintiffs argument.

The following additional facts are relevant to the plaintiffs claim. On October 20, 2006, with the 2004 permit about to expire, the plaintiff filed an application for a special use permit with the defendant. The record indicates that on October 27, 2006, the plaintiffs attorney sent a letter addressed to the West Hartford town planner that read: “On October 20,20061 hand delivered to your office a Permit Application for a Special Use Permit for the property at 99 Waibridge Road, West Hartford, Connecticut. However, based upon a voice mail which you left me on October 25, 2006, I now realize that I should have applied for an Amendment to the Conditions of Approval of the existing Special Use Permit which was granted by the [defendant] on December 6, 2004. Therefore, by virtue of this letter, I hereby amend my Application and request that the [defendant] amend the conditions of the Approval of the existing Special Use Permit dated December 6,2004, to remove the requirement that the number of dogs at the property be reduced to three (3) and to remove the expiration dates contained therein.”

The defendant’s 2006 decision provided that it was ruling on the “[application (SUP # 1026-R1-06) of [the plaintiff] . . . requesting approval to modify a previously approved Special Use Permit (SUP #1026) granted on December 6, 2004 authorizing the keeping [of] up to three dogs on the premises.” Contrary to the defendant’s assertion, this issue was raised at the trial court, and the court, without setting forth its analysis, found that the 2006 application was an application to amend the 2004 permit. It stated: “Based upon the application and other documents, this court finds that the subject application in 2006 is an application to amend or modify the 2004 special use permit, in particular to revoke the conditions of that permit.”

The plaintiff appears to put forth the argument that this is a new application for a special permit, and not an application to amend the 2004 permit, in an attempt to strengthen her argument that her noncompliance with the 2004 permit is completely unrelated to whether her 2006 application should have been granted. The plaintiff set out, in her brief to this court, as her statement of issue on appeal, “[w]hether the defendant . . . may consider perceived noncompliance . . . with a previously issued special permit in deciding whether to grant a modification to that special permit?” (Emphasis added.) She then proceeds to argue in her brief why her 2006 application should be considered an application for a new permit.

The defendant found, and the trial court agreed, that the application in question was an application to modify or to amend the plaintiffs previously issued permit and was not an application for a new permit. The findings of the defendant and the court will not be disturbed by this court, as “[w]e generally employ a deferential standard of review to the actions of a zoning board. . . . [CJourts are not to substitute their judgment for that of the board, and . . . the decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing . . . .” (Citation omitted; emphasis in original; internal quotation marks omitted.) Megin v. Zoning Board of Appeals, 106 Conn. App. 602, 607, 942 A.2d 511, cert. denied, 289 Conn. 901, 957 A.2d 871 (2008).

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The plaintiff next argues that the defendant denied her a fair hearing by considering factors not enumerated in the ordinances in deciding whether to grant her 2006 permit application and ultimately denying it. Specifically, the plaintiff claims that the defendant improperly considered her noncompliance with the conditions of the 2004 permit. The defendant asserts that the plaintiff failed to contest the conditions attached to the 2004 permit at the appropriate time and that she cannot now raise this issue.

As noted previously, the defendant did not approve the plaintiff’s 2004 permit application outright. The plaintiff was granted the noncommercial residential scale kennel permit subject to the conditions that (1) she reduce the number of dogs on her property from twenty-two to three and (2) she accomplish this reduction within two years. The defendant specifically found at that time that the keeping of twenty-two dogs on the premises was not appropriate or compatible with the residential neighborhood and, additionally, was a violation of the ordinances.

The plaintiff unquestionably did not comply with the conditions of the 2004 permit. She admitted during the hearing before the defendant on December 4, 2006, that she had not considered moving with her dogs because “it’s too emotional for the dogs and for [herself]” and that she “did not take any steps to find other homes [for the dogs], not because [she] was being arrogant, it’s because everything else piled up on [her] in [her] life, [her] father becoming ill soon after this decision was made.” She further testified that she could not separate the dogs because they would not adjust to being separated and that she tried to have people take the youngest dogs prior to filing her 2004 application, but the dogs would not go with anyone else. When asked if she had reduced the number of dogs at all, her attorney stated that “she realized during that two year period that if she gave them away, they would not survive and she couldn’t break them up.”

The plaintiffs 2006 application in effect requested that she be able to keep all of the dogs that she currently owned until they died. This was essentially a request to have the conditions attached to the 2004 permit removed. In denying her 2006 application, the defendant reiterated that the keeping of twenty-two dogs on the premises was not appropriate or in harmony with the residential neighborhood. By seeking to amend her 2004 permit to remove the conditions that she reduce the number of dogs at her residence from twenty-two to three and that she do so within two years, the plaintiff was seeking to have the defendant grant a permit that it had already determined was in conflict with the ordinances.

Section 177-42 (A) (5) (a) of the ordinances provides that when considering an application for a special use permit, the defendant “shall make a finding that each of the following standards is met and, where necessary, shall attach specific conditions to its approval of the special use permit if, in its opinion, such conditions are essential to making the finding that . . . [t]he location and size of the use, the nature and intensity of the operations connected with it, the size of the lot in relation to it and the location of the lot with respect to streets giving access to it are such that it will be in harmony with the appropriate and orderly development of the district in which it is located.” The defendant did just that by conditionally approving the plaintiffs 2004 permit application. The defendant clearly found that the only way that the plaintiff could be in compliance with the ordinances and to maintain the harmony of the neighborhood was to reduce the number of dogs on her premises to three.

“Unlike a variance which involves the varying of a zoning ordinance, a special exception . . . deals with compliance with the ordinance and imposes upon a board of zoning appeals the duty to grant an exception [or zoning permit or to approve a site plan] once the conditions specified in the ordinance have been met.” (Internal quotation marks omitted.) Grasso v. Zoning Board of Appeals, 69 Conn. App. 230, 244, 794 A.2d 1016 (2002). “The [zoning] board may grant the exception [or permit] once it finds that all the requirements of the ordinance have been satisfied . . . .” (Internal quotation marks omitted.) Id., 246.

“Finality of decision is just as desirable in the case of an exception [or permit] as in one involving a variance. Because of the nature of an exception [or permit], however, the power of a zoning board to review a prior decision denying the exception [or permit] is not [as] limited . . . as it is when a variance is sought .... [An exception or permit may be granted] when the owner requesting an exception [or permit] files a subsequent application altering the plan under which he previously sought the exception [or permit], in order to meet the reasons for which the board denied the prior one. ... To justify a special exception [or permit] it must appear that the manner in which the owner proposes to use his property will satisfy the conditions imposed by the regulations. If, therefore, upon a second request for a special exception [or permit], there is a substantial change in the manner of use planned by the owner, the board is faced with an application materially different from the one previously denied. It may well be that the new plan, by reason of the changes made therein, will succeed, where the former failed, in satisfying the conditions enumerated in the regulations. Under such circumstances, the board is not precluded from granting the second application merely because it has denied the first.” (Citations omitted.) Mitchell Land Co. v. Planning & Zoning Board of Appeals, 140 Conn. 527, 534, 102 A.2d 316 (1953).

The defendant would have been well within its authority to grant the plaintiffs 2006 application had it found that the circumstances that prompted it to conditionally approve her 2004 permit had changed. The defendant in fact would have had a duty to grant the plaintiffs 2006 application had it found that the plaintiffs circumstances were in compliance with the ordinances and if her 2006 application proposed a scenario that would have been appropriate or in harmony with the residential neighborhood in which she resided. On the contrary, the defendant found both in 2004 and in 2006 that the keeping of twenty-two dogs in a residence was not appropriate or in harmony with the residential neighborhood.

The defendant’s decision was not based on the plaintiffs noncompliance with the conditions attached to the 2004 permit but instead on the issues created by allowing one residence to contain twenty-two dogs. The record shows that the defendant was concerned with maintaining the harmony of the residential neighborhood, and the court properly concluded that the defendant’s decision was based on substantial evidence.

In addition, this court has held that a party cannot challenge a condition imposed on a special permit after the period of compliance with the condition has expired. Spectrum of Connecticut, Inc. v. Planning & Zoning Commission, 13 Conn. App. 159, 163, 535 A.2d 382, cert. denied, 207 Conn. 804, 540 A.2d 373 (1988). In Spectrum of Connecticut, Inc., the plaintiff had been granted a one year special permit to operate a game room with the condition that it control loitering and other nuisance occurrences from the public that could disrupt the quiet enjoyment of area residents. Id., 160-61. When the plaintiff applied for renewal of its special permit, the commission denied its application on the basis of testimony presented about the noise, littering, vandalism, loitering and drug use by patrons of the plaintiffs establishment. Id., 161.

The Superior Court sustained the plaintiffs appeal, but this court held that because the plaintiff did not contest the conditions attached to the initial permit, it could not contest the validity of the conditions when the commission investigated its noncompliance with the conditions when considering its application to renew the permit. Id., 162 (“[A] party may not challenge on appeal the validity of a preexisting condition to a special permit which it seeks to renew. Having failed to challenge it when it was imposed, [the plaintiff] was in no position to contest the validity of the condition when the commission evaluated [the plaintiffs] renewal application by looking to its noncompliance with the condition.”). This court stated: “[W]e note that if we held otherwise, and allowed an applicant to challenge the validity of a special permit condition which was not questioned until after the applicant’s noncompliance, a special permit applicant would have it both ways, making the system of land use regulation contemplated by General Statutes § 8-2 impractical and unworkable.” Id., 163.

Here, the plaintiff failed to challenge the conditions attached to the 2004 permit when they were imposed and instead enjoyed the benefit of the permit and its two year grace period while making no attempt to actually comply with the conditions of the permit. The plaintiffs untimely collateral attack on the conditions of the 2004 permit is not allowable. See Gay v. Zoning Board of Appeals, 59 Conn. App. 380, 387, 757 A.2d 61 (2000) (“a property owner [can] not accept the benefits of a permit and a condition attached to it for three years and then attack the condition”); see also Upjohn Co. v. Zoning Board of Appeals, 224 Conn. 96, 100-102, 616 A.2d 793 (1992).

The defendant also argues that if it had granted the plaintiffs application for an amended permit in 2006, it would essentially have been reversing itself, which generally is prohibited unless there has been a change in circumstances that materially affects the subject of the application. See Consiglio v. Board of Zoning Appeals, 153 Conn. 433, 438, 217 A.2d 64 (1966); Grasso v. Zoning Board of Appeals, supra, 69 Conn. App. 244. Such changes have included, for an asphalt plant, redesign of entrance and exit ways and safeguards to prevent unloaded sand and gravel from causing dust; Mitchell Land Co. v. Planning & Zoning Board of Appeals, supra, 140 Conn. 535; and for an application to allow a sanitary landfill disposal area, relocating the access road farther away from the nearest dwelling and eliminating acreage of the disposal area that was most observable from the neighboring property. Rocchi v. Zoning Board of Appeals, 157 Conn. 106, 111-12, 248 A.2d 922 (1968). Such a change in conditions can permit a zoning commission to grant an exception or special use permit after an initial denial once it finds that all of the requirements of the ordinances have been satisfied and that the applicant is willing to comply with the conditions imposed by the commission. See id. There has been no such change in conditions here. The defendant made no finding, nor does the record reveal any basis on which to make one, that the plaintiff was willing to comply with the conditions of the 2004 permit.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff appears to have requested the permit following a complaint from a neighbor.

       Section 177-38 of the ordinances provides in part: “No structure shall be erected, expanded or structurally altered and no land use shall be established until a permit therefor has been issued, as required below. A. A special permit use, identified as such in § 177-6B and C, in accordance with the procedure set forth in § 177-42A.”
      Section 177-42, entitled “Application approval procedure,” provides in part: “Applications for required permits shall be reviewed and acted upon as follows ... (1) All special permit uses, identified as such in § 177-6B and C, are declared to possess characteristics of such unique and distinct form that each specific use shall be considered as an individual case. Special permit uses shall be deemed to be permitted uses in their respective districts, subject to the satisfaction of the requirements and standards set forth therein, in addition to all other requirements of this chapter. (2) The Town Planner shall refer applications for special use permits to the Planning Commission, which shall hold a public hearing within 65 days after having received the application at a regular meeting and shall make a decision within 65 days after the public hearing. The Commission shall give notice prior to the date of the hearing by advertisement in a newspaper as required by state statute and by sending by mail a copy of such notice to the applicant and to the owners of all property adjoining the property which is the subject of such an application. (3) The applicant shall post a sign giving notice of his or her application in a conspicuous place on the property for which a special use permit approval is sought, visible from a public street. Said sign shall be posted seven days before the date of the hearing, shall remain in place until the public hearing and shall be removed not later than three days after the public hearing. . . .”

       The record does not indicate the size of the plaintiffs lot.

       Section 177-42 (A) (5) (a) of the ordinances provides that certain standards must be met before the defendant may grant a special use permit application and that the defendant may attach conditions to the approval of a permit application to ensure that the standards are met.

       The plaintiff was granted certification by this court to appeal on September 13, 2007.

       Although the plaintiff contends that there is no provision in the ordinances that permits applications to amend to be filed, and therefore by default her 2006 application must be considered to be a new application, defense counsel pointed out at oral argument that § 177-42 (A) (8) (e) of the ordinances states: “The [defendant] shall not be entitled to further review of any special use permit subsequent to this process unless the use of the property or structures on it changes such that an amendment to the permit is necessary or appropriate.” This subdivision appears to contemplate the possibility of an amendment to a previously granted special use permit.

       The court stated in a footnote that even if it were to consider the 2006 application to be a new application, there was substantial evidence in the 2004 application that the proposed use was not in harmony with the residential neighborhood to justify the defendant’s decision.