text:
    N. Denis Crowther v. Gerber Garment Technology, Inc.
    (4179)
    Dupont, C. J., Borden and Bieluch, Js.

      Argued March 18
    decision released July 29, 1986

      Albert Zakarian, with whom, on the brief, was James Sicilian, for the appellant-appellee (defendant).

      William H. Narwold, for the appellee-appellant (plaintiff).
   Bieluch, J.

This action arises out of the plaintiffs claim for sales commissions due from the defendant, his former employer. The defendant has appealed from the modified judgment of the trial court in favor of the plaintiff in the amount of $214,619.52. The plaintiff has also filed a cross appeal from the judgment. We find no error.

The trial court found the following facts. The plaintiff is the former national sales manager of the defendant corporation. He was hired by the defendant through its vice president for marketing, Peter Lanzer, on September 9, 1980, as national sales manager for the defendant’s computerized marker-making machine known as the AMI system which consisted of a computer, plotter, printer, disc, screen and software. That system uses a computer to lay out patterns for use in the apparel, automobile and aerospace industries. In the spring of 1981, the AMI system was modified and was then redesignated AM5. The marker-making system is used in conjunction with a cutting machine known as the Gerber Cutter.

The plaintiff had previously been employed by Hughes Aircraft as a regional sales manager for the AMI marker-maker before its purchase by the defendant. When the plaintiff was hired as the defendant’s national sales manager to work out of Atlanta, Georgia, the written contract of employment provided for an annual salary of $50,000 and a commission of 1 percent on “systems and upgrades.” The agreement also gave him a $20,000 annual draw against his future commissions as well as the use of a company car. The defendant took over a “bridging loan,” then held by his former employer in the amount of $16,000, on the plaintiffs home in Wilmington. Finally, the plaintiff was to receive a commission of one-eighth of one percent on all service contracts for the systems and upgrades. Both parties agreed to give two months notice of termination of the employment.

From September, 1980, through April 30,1981, this agreement remained in effect. The plaintiff served as the defendant’s national sales manager while living in Atlanta. However, the parties came to realize that the plaintiff would be better able to discharge his responsibilities if he lived closer to the defendant’s home office in South Windsor, Connecticut. The plaintiff and Lanzer, therefore, agreed that the plaintiff would move to Connecticut. The plaintiff, however, expressed concern about the cost of housing and the high rate of interest in selling his Atlanta home and in purchasing a replacement home which he had found in Glastonbury. As a result, as of May 1, 1981, the plaintiff’s compensation agreement with the defendant was modified to increase his commission on service contracts from one-eighth to one-quarter percent. Further, to defray moving and housing expenses, the plaintiff was to receive an override of 1 percent commission on the first $2,000,000 of AMI systems and upgrade sales, or $20,000, in the first year, and a similar override of 1 percent on sales of $1,000,000, or $10,000, annually thereafter. The plaintiff’s annual draw against anticipated commissions was also increased to $40,000.

At approximately the same time as this new compensation agreement was being negotiated, the plaintiff was discussing with Lanzer his employment as national sales manager for an additional machine made by the defendant, the Gerber Cutter, also referred to as the System 91. The cutter is an automated pattern cutting device designed to be used in conjunction with a computer-aided design system, such as the AMI or AM5. This expansion of the plaintiffs duties to cover another product was finalized in the late spring of 1981, and Lanzer and the plaintiff worked throughout June of that year reorganizing the cutter sales program in preparation for a sales meeting to be held on July 10. Projections by the plaintiff for sales of the cutter in the period between July 1, 1981, and April 30, 1982, were $12,000,000 to $14,000,000. AM system sales were expected to be between $8,000,000 and $10,000,000.

After the sales meeting, Lanzer met with the plaintiff to discuss the success of the meeting. Lanzer then told the plaintiff: “Of course, Denis, that leaves only your compensation to be agreed.” The plaintiff laughingly responded: “Don’t worry, Peter, all you have to do is continue my one percent.” Lanzer responded: “Don’t be crazy, Denis. This would mean you would receive more money than Joe Gerber, Stan Leven or Bob Maerz [of management].” With that discussion, the matter then ended.

During the summer of 1981, Robert Maerz, who was a senior vice-president of marketing and operations for the defendant’s parent company, and a director of the defendant, saw figures on a computer printout which suggested that the plaintiff’s salary was a guaranteed $90,000. He called Lanzer to discuss the situation because that salary was significantly out of line with other compensation at the company. Lanzer, Maerz and H. Joseph Gerber, the chairman of the board of directors, met to discuss the situation. Lanzer explained to Maerz that the computer printout was incorrect. Maerz then directed Lanzer to establish a graduated scale providing for increased commissions based on increased sales.

The defendant’s fiscal year runs from May 1 through April 30. From July 1, 1981, through April 30, 1982, the defendant’s accounting office accrued, as a potential expense in contemplation of commissions to be paid, 1 percent on sales of AM systems and Gerber Cutters. This accrual was directed by Lewis Caron, vice president and comptroller of the defendant. In the summer of 1981, Caron also specifically instructed his subordinates not to pay commissions to the plaintiff because no new agreement had been reached.

Caron pressed Lanzer to formalize a compensation agreement with the plaintiff as the end of the 1981-82 fiscal year neared. On May 5, 1982, Lanzer met with the plaintiff and informed him that although the plaintiff claimed a commission of 1 percent on all sales, the defendant would pay no more than one-quarter percent. The plaintiff responded: “Well, if that is so, then it will have to be so.” The trial court found that the plaintiff accepted this modification of the commission rate as a resolution of the question for the future only. The defendant subsequently gave the plaintiff a check for $38,596.02. This sum was a net adjusted figure which included a commission payment of $37,471.49, computed at one-quarter percent of all sales of AM systems and upgrades and Gerber Cutters during the period of July 1, 1981, through April 30, 1982. This payment reflected sales of AM systems in the amount of $5,911,352, and cutter sales of $9,077,256.

The sole dispute between the parties at trial related to their disagreement as to the amount of commissions to which the plaintiff was entitled during the ten-month period from July 1, 1981 through April 30, 1982. The parties agree that the plaintiff has been properly paid from September, 1980, through June 30, 1981, and from May 1, 1982, until the time of his resignation in October, 1982. The amount disputed by the parties is the difference between the plaintiff’s demand of 1 percent on the AM systems and cutter sales and what the defendant paid him at one-quarter percent.

The trial court concluded that the parties’ original compensation agreement, as modified by them prior to July 1,1981, for sales of AM systems and upgrades was never terminated in accordance with its provision for two months cancellation notice. Therefore, the plaintiff was entitled to receive a commission of 1 percent on all sales of AM systems and upgrades during the ten-month period in question. By that computation he was entitled to receive the amount of $59,113.52, representing 1 percent of total sales of $5,911,352. The court also ruled that since the Gerber Cutter was not an upgrade of the AM systems, it was not covered by the parties’ original contract. For that reason, the court found that there was no meeting of the minds regarding the plaintiff’s compensation for cutter sales until May 5, 1982, at which time the one-quarter percent commission rate for all products was agreed upon as a further amendment to the employment contract. The court, therefore, found that the plaintiff was entitled to a commission of one-quarter percent on cutter sales of $9,077,256, amounting to $22,693.14. The total due to the plaintiff from the defendant was found to be $81,806.66. Since he was previously paid $37,471.49 on or about May 5, 1982, the balance due him was $44,335.17.

Upon this amount due, the trial court awarded the plaintiff statutory interest of $12,030.01. Pursuant to General Statutes § 31-72, the plaintiff sought, and the court awarded, double damages in the sum of an additional $44,335.17. Further, under § 31-72, the court allowed reasonable attorney’s fees and expenses through trial of $32,997.37 and post-trial to judgment of $30,957. Total judgment was rendered for the plaintiff to recover of the defendant $164,654.72 plus costs. From this judgment, the defendant appealed and the plaintiff cross appealed.

Subsequent to the rendition of judgment and filing of the defendant’s appeal, the plaintiff moved, pursuant to General Statutes § 52-212a and Practice Book § 326 allowing such motion within four months of judgment, to open and modify the judgment to include an additional 12 percent interest, compounded annually, on the amount previously awarded for the period from the filing of the complaint on October 19,1982, to the judgment of April 30,1985, under the provisions of General Statutes § 52-192a. The plaintiff had filed an “offer of judgment” for $150,000 on April 27, 1983.

The defendant opposed the additional award of interest under the “offer of judgment” statute on the ground that counsel fees and expenses, awarded in the amount of $63,954.37, should not be added to the award of double wages and interest, totaling $100,700.35, for the purpose of the statutory comparison of judgment against offer of settlement. It also claimed that the award of interest on the attorney’s fees would result in an allowance of such fees in excess of the $350 limit set by the statute for such awards to plaintiffs. The court opened and modified its prior judgment by adding to its amount simple interest of 12 percent per annum from the filing of the complaint in the sum of $49,964.80, making the total judgment amount $214,619.52. In answer to the defendant’s objections, the trial court referred to § 31-72, which expressly allows the recovery of “reasonable attorney’s fees” in addition to double wages for the failure to pay an employee wages earned. The defendant thereafter amended its statement of issues on appeal to include questions raised by the modification of the court’s judgment.

The defendant’s first claim is that the court erred in finding that the plaintiff was entitled to a commission of 1 percent on sales of the AM systems and upgrades during the ten month period in issue. Conversely, the plaintiff’s first claim on his cross appeal is that the court erred in failing to find that a commission of 1 percent was due on sales of the Gerber Cutter. We find no merit to either claim.

Each of these claims constitutes a patent attempt to retry the facts of this case. Absent a statutory warranty or specific contract language, the scope of contractual terms is a factual question subject to a limited scope of appellate review. Harry Skolnick & Sons v. Heyman, 7 Conn. App. 175, 178, 508 A.2d 64 (1986). There was sufficient evidence for the court to conclude that the parties’ original contract relating to AM systems and upgrades remained in effect throughout the time period in issue before the court and that it was not modified, to comport with the defendant’s claimed one-quarter percent commission rate, until May 5, 1982. Specifically, the trial court was justified in its reliance on the fact that the defendant had accrued an expense of one percent commission on the sale of the AM systems for the ten-month period in question. The conduct of the parties regarding the terms of a contract is a useful and proper aid to its interpretation. Lar-Rob Bus Corporation v. Fairfield, 170 Conn. 397, 407-408, 365 A.2d 1086 (1976).

With respect to the plaintiff’s claim on his cross appeal, there was also enough evidence to support the court’s conclusion that the parties’ original contract did not extend to sales of the Gerber Cutter. The written contract of September 9,1980, between the parties provided in relevant part as follows: “Your responsibilities will include the orderly marketing of AM-1 Systems and assisting in GERBER cutter sales, as and when required. Your duties will include the building of an aggressive sales force to cover the U.S.A., Canada and Mexico (North American Continent). Your salary for these duties will be at the rate of $50,000 per annum, payable weekly; and you will receive a Commission of 1% of systems and upgrades.” (Emphasis added.) The trial court was justified in reading the emphasized language, contrary to the interpretation urged by the plaintiff, to refer only to the “AM-1 Systems” mentioned in the contract and to upgrades of that system such as the modification redesignated AM5, and not to sales of the cutter, which is not described in the agreement as a “system,” and is a separate item designated within the scope of additional responsibilities.

Similarly, the second claim of error of the defendant is an effort to change the legal conclusions which logically arise from the trial court’s findings of fact by distorting the clear meaning of the findings. The defendant asserts that because the plaintiff was informed after the July 10, 1981 sales meeting, that an extension of his 1 percent commission to the sale of cutters additional to the same commission for sales of AM systems would be excessive, he was on notice that the rate of 1 percent in his original contract had changed with respect to sales of the AM systems. That is a possible interpretation of the conversation between the plaintiff and Lanzer, but it is clearly not the reading of the trial court. The trial court was well within the reasonable bounds of its judicial discretion in concluding that the only notice then given to the plaintiff was that he could not expect to receive a commission of 1 percent on the cutters sold. The defendant, in this claim of error, simply fails to acknowledge the court’s separation of the parties’ agreement with respect to the AM systems and the Gerber Cutters.

The next two claims raised by the defendant are that the court erred in awarding double damages and reasonable attorney’s fees pursuant to General Statutes § 31-72. That statute provides for a discretionary award of double damages, with costs and reasonable attorney’s fees, to employees who are successful in actions against their employers for wages due. The defendant claims: (1) that the statute is unconstitutional because it contains no criteria by which to determine whether such awards should be made; and (2) that even if the statute is not unconstitutional, the facts of this case do not support an award of double damages and counsel fees. We disagree.

First, we decline to consider the constitutionality of § 31-72. That issue was not raised in the trial court. We see no reason to part from our strong policy of not considering issues on appeal which were not raised at trial. Heiskell v. Heiskell, 6 Conn. App. 471, 506 A.2d 151 (1986).

With regard to the defendant’s second argument, the memorandum of decision clearly indicates that the basis for the award of double damages and attorney’s fees in this case was, to a great degree, the fact that the defendant had breached its employment contract with the plaintiff. The defendant acknowledges that the appropriate use of the court’s power to award double damages and counsel fees is where a finding of bad faith, arbitrariness or unreasonableness has been made, but argues that a mere finding that the defendant breached its employment contract is not sufficient. We conclude, however, that the court’s additional findings in this case do support the awards when read in conjunction with its express finding that the defendant breached the parties’ contract of employment. The court found that the defendant’s “position that it had unfettered discretion to adjust retroactively [the plaintiff’s] commission rate is untenable.” (Emphasis added.) The court further concluded that the defendant’s “conduct plainly demonstrates that [it] understood that the employment agreement was in effect during [the plaintiff’s] entire employment.” Additionally, the court noted that the defendant “concedes that for the ten-month period prior to May 1,1982 it never reached an agreement with [the plaintiff] to modify the 1% rate and because of that decided to change the rate unilaterally with a retroactive adjustment to [the plaintiff’s] earned commission recorded in the company books.” These findings show that the defendant, jaundiced by the financial success of the plaintiff under the existing employment contract, unilaterally undertook to reduce the commission rate, in effect taking the law into its own hands. Such disloyalty to its employment contract with the plaintiff was sufficiently unreasonable as to warrant an award of double damages and attorney’s fees in this case.

The defendant also asserts that the court erred in awarding the plaintiff interest in addition to double damages. We disagree. The trial court awarded the plaintiff statutory interest on his actual lost wages of $44,335.17. At the statutory rates effective between May 1,1982, and judgment on April 30,1983, a period of three years, the court calculated the simple interest to total $12,031.01, and awarded this amount. The court then allowed the plaintiff an additional $44,335.17 as double damages pursuant to § 31-72. The court expressly refused to grant interest on the double damages since the enabling statute contains no provision for interest. In proper fashion the court basically compensated the plaintiff for his overdue commissions and, by awarding him statutory interest on this amount, compensated him for the delay in payment of his overdue wages. The additional award of double damages pursuant to § 31-72 was a punitive award; see remarks of Senator Nancy Johnson, Conn. Joint Standing Committee Hearings, Labor and Industrial Relations, Pt. 1, 1978 Sess., p. 154; and was appropriately granted in addition to the statutory interest allowed on the plaintiff’s basic recovery of his unpaid commissions.

Finally, the defendant claims that the court erred in awarding to the plaintiff by modification of judgment additional interest of $49,964.80 pursuant to General Statutes § 52-192a (b). This award, also punitive in nature and authorized by legislation enacted to promote fair and reasonable compromise of litigation without trial, was predicated on the recovery of damages by the plaintiff in excess of his offer of judgment in the amount of $150,000 filed on April 27, 1983. This, the defendant claims, was error because the amount recovered by the plaintiff exceeded $150,000 only after the court’s award of reasonable attorney’s fees of $63,954.37 was added into the calculation, to make the total amount recovered by judgment $164,654.72.

The defendant argues that since attorney’s fees are not paid to the plaintiff, but to counsel, they should not be included in the comparison or measurement of recovery by the plaintiff against his offer of judgment for the purpose of § 52-192a. The defendant maintains that under the provisions of § 52-192a(b) “[t]he court may award reasonable attorney’s fees in an amount not to exceed three hundred fifty dollars [only]. ...” Furthermore, the defendant claims, since the attorney’s fees did not accrue until the time of the judgment, “an award of interest on such fees relating back to the date of the Complaint is outrageous” for the reason that by this punitive award the plaintiff will be receiving 12 percent interest, or $7674.52 per annum, on attorney’s fees before they are earned. Also, the defendant claims, such a result would be unjust and far in excess of the defendant’s right to counsel fees not in excess of $350 allowed the defendant under General Statutes § 52-195 in the converse situation where a defendant’s offer of judgment is not exceeded by the the plaintiff’s recovery. See Verrastro v. Sivertsen, 188 Conn. 213, 219, 448 A.2d 1344 (1982). We disagree with the defendant’s contentions.

First, it is now clear that an award of statutory attorney’s fees awarded by judgment may be taken into account in calculating the amount of recovery to be measured against the amount of the plaintiff’s pretrial offer of judgment. In Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 280, 472 A.2d 306 (1984) (Gionfriddo I), the court upheld an award of treble damages in favor of the plaintiff under General Statutes § 14-295 in addition to an award of compensatory and exemplary damages. “Exemplary” and “punitive” damages are merely “alternate labels for the same remedy.” Alaimo v. Royer, 188 Conn. 36, 42, 448 A.2d 207 (1982). “Punitive damages consist of a reasonable expense properly incurred in the litigation . . . less taxable costs.” (Citation omitted.) Markey v. Santangelo, 195 Conn. 76, 80, 485 A.2d 1305 (1985). Such costs of litigation can include attorney’s fees, even if contingent upon the successful outcome of the case. Id. See also Alaimo v. Royer, supra. The jury in Gionfriddo I awarded the plaintiff compensatory damages of $353,262 on the first count and exemplary damages of $124,977, representing costs of litigation including counsel fees, less taxable costs, on the second count. The third count, seeking treble damages under § 14-295, was then tried to the court, which found for the plaintiff and trebled the damages awarded by the jury on the first count by adding to the verdict an amount equal to twice the compensatory jury award, or $706,524.

Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 301, 472 A.2d 316 (1984) (Gionfriddo IT), ancillary to Gionfriddo I, concerned the availability of statutory interest under § 52-192a (b) where the plaintiff’s offer of judgment in the amount of $750,000 had been rejected and he subsequently recovered compensatory and exemplary damages of $478,239 by jury verdicts on counts one and two, and an additional $706,524 as a result of treble damages awarded by the trial court on the third count. Although the recovery totaled $1,184,763, the trial court disallowed interest under § 52-192a (b) because the basic jury verdict without the court’s enhancement by treble damages was less than $750,000.

The Supreme Court found otherwise, stating: “[The defendants] urge us to hold that, because treble damages are not compensatory, the parties could not agree to their payment and therefore such damages must be excluded from the comparison contemplated by an offer of judgment. In effect, the defendants invite us to create an implied exception to § 52-192a for cases in which a plaintiff’s recovery has been enhanced by statutorily trebled damages. . . . The plaintiff’s offer of judgment must offer to settle the case on all counts, including his count for multiple damages. Before the commencement of trial, the plaintiff cannot be sure of damages from either the jury or the court. The policy of encouraging settlements counsels against piecemeal offers of judgment. We therefore conclude that the trial court was in error in holding that the plaintiff was not entitled to recover interest under § 52-192a.” Gionfriddo II, supra, 307.

The court’s holding in Gionfriddo II, that since the plaintiff’s offer of judgment under § 52-192a (b) must seek to settle the action on all counts it must be compared with the amounts recovered on all counts, is decisive of the issue now under consideration. Where a claim for the extraordinary statutory remedy of double wages, costs and reasonable attorney’s fees allowed under § 31-72 has been alleged in the complaint, any relief awarded under such a claim after trial must be included in the amount of recovery for the purpose of measurement against an offer of judgment made under § 52-192a (b). The two counts of the plaintiffs supplemental amended complaint sought recovery of unpaid wages under “Section 31-71a et seq. of the Connecticut General Statutes.” In his prayer for relief, he claimed: “1. Money damages; 2. Double damages pursuant to Section 31-72 of the Connecticut General Statutes; 3. Attorneys’ fees pursuant to Section 31-72 of the Connecticut General Statutes; 4. Interest; [and] 5. Any other relief deemed just and equitable by this Court.” These were the claims which the defendant litigated at trial when it refused the plaintiff’s offer of judgment “to settle the instant claim and to stipulate to a judgment for the sum of $150,000.00.” The defendant gambled and lost on the provisions of § 52-192a (b) when the plaintiff recovered basic damages on his complaint in the total sum of $164,654.72 under his various claims for relief. Since the court, subsequent to the defendant’s rejection of the offer of judgment, awarded the plaintiff, after trial of the issues, damages in excess of the settlement offer, pursuant to the provisions of § 52-192a (b), the plaintiff was properly awarded annual interest of 12 percent on the judgment from the filing of the complaint, the offer of judgment having been filed within eighteen months of the complaint.

The defendant’s further argument against the inclusion of attorney’s fees awarded under § 31-72 in the amount of recovery to determine applicability of the penalty under § 52-192a (b) is illogical. It contends that “plaintiff should be entitled to the same award of attorney’s fees as defendant if he is successful with his offer of judgment.” Under General Statutes § 52-195 (b), the plaintiff, in that reverse event, “shall pay the defendant’s costs accruing after he received notice. Such costs may include reasonable attorney’s fees in an amount not to exceed three hundred fifty dollars.” Therefore, the defendant argues, the plaintiff should not be allowed to consider the reasonable attorney’s fees of $63,954.37 as part of the recovery to be compared with the offer of judgment. The plaintiff’s attorney’s fees were recovered, however, as part of his claim for damages under § 31-72, and not as reasonable attorney’s fees under § 52-192a (b). Indeed, § 52-192a (b), the defendant agrees, provides for attorney’s fees as a matter separate and apart from the damages the plaintiff recovers, since by its terms “[t]he court may award reasonable attorney’s fees in an amount not to exceed three hundred fifty dollars, and shall render judgment accordingly.” No allowance for such additional counsel fees, however, has been made here, but its availability disproves the defendant’s claim of unequal treatment to a defendant who might prevail under § 52-195. In brief, the two parallel provisions in §§ 52-192a (b) and 52-195 for limited counsel fees are not material to the question of the inclusion of statutory attorney’s fees recovered under § 31-72 in the comparison of judgment and pretrial offer of settlement pursuant to § 52-192a (b).

The sole matter remaining for our consideration is the plaintiff’s second claim of error on his cross appeal. The plaintiff claims that § 31-72 not only permits the court to award attorney’s fees and costs to the time of judgment, as it did in this case, but also that it permits an award of reasonable attorney’s fees and costs incurred in defending this appeal and prosecuting his cross appeal. Therefore, the plaintiff has requested that “[tjhis action ... be remanded to the trial court for consideration of plaintiff’s reasonable attorneys’ fees and costs incurred since the entry of judgment on April 30, 1985.”

General Statutes § 31-72 permits an employee to recover “such reasonable attorney’s fees as may be allowed by the court” in a “civil action” for the collection of wages due. We have, in the past, construed such language to extend to attorney’s fees incurred at the appellate level as well as at trial because of the statute’s use of the term “action” rather than “trial.” Conservation Commission v. Price, 5 Conn. App. 70, 74, 496 A.2d 982 (1982). Thus, we conclude that in the present case an award of attorney’s fees incurred in defending the present appeal is available to the plaintiff in the discretion of the trial court under § 31-72.

We note, however, that this matter is in a procedurally different context from that which was present in Price. There we were faced with a direct appeal from the trial court’s award of appellate fees incurred by the plaintiff in defending a prior appeal to the Supreme Court. In the present case, we have no decision of the trial court regarding attorney’s fees incurred on appeal before us upon which to pass appellate judgment. Indeed, in Price, we expressly stated that the most appropriate time to pursue an award of appellate attorney’s fees is after the appeal has been concluded. Id., 73. This is critical since, unlike the statute at issue in Price which mandated an award of attorney’s fees; see General Statutes § 22a-44 (b); General Statutes § 31-72, involved in the present case, merely permits an award of reasonable attorney’s fees in the discretion of the court. Thus, we must leave the plaintiff to pursue, in available proceedings in the trial court, his recovery of reasonable attorney’s fees incurred in defending the defendant’s appeal to this court.

There is no error on the appeal; there is no error on the cross appeal.

In this opinion the other judges concurred.

       General Statutes § 31-72 provides in pertinent part: “When any employer fails to pay an employee wages in accordance with the provisions of sections 31-71a to 31-71Í, inclusive . . . such employee . . . may recover, in a civil action, twice the full amount of such wages, with costs and such reasonable attorney’s fees as may be allowed by the court
      General Statutes § 31-71a (3) contains the following definition: “ ‘Wages’ means compensation for labor or services rendered by an employee, whether the amount is determined on a time, task, piece, commission or other basis of calculation.”

       “[General Statutes] Sec. 52-192a. offer of judgment by plaintiff. ACCEPTANCE BY DEFENDANT. COMPUTATION OF INTEREST, (a) After commencement of any civil action based upon contract or for the recovery of money only, the plaintiff may before trial file with the clerk of the court a written ‘offer of judgment’ signed by him or his attorney, directed to the defendant or his attorney, offering to settle the claim underlying the action and to stipulate to a judgment for a sum certain. The plaintiff shall give notice of the offer of settlement to the defendant’s attorney, or if the defendant is not represented by an attorney, to the defendant himself. Within thirty days after being notified of the filing of the ‘offer of judgment,’ the defendant or his attorney may file with the clerk of the court a written ‘acceptance of offer of judgment’ agreeing to a stipulation for judgment as contained in plaintiff’s ‘offer of judgment.’ Upon such filing, the clerk shall enter judgment immediately on the stipulation. If the ‘offer of judgment’ is not accepted within thirty days, the ‘offer of judgment’ shall be considered rejected and not subject to acceptance unless refiled. Any such ‘offer of judgment’ and any ‘acceptance of offer of judgment’ shall be included by the clerk in the record of the case.
      “(b) After trial the court shall examine the record to determine whether the plaintiff made an ‘offer of judgment’ which the defendant failed to accept. If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain stated in his ‘offer of judgment,’ the court shall add to the amount so recovered twelve per cent annual interest on said amount, computed from the date such offer was filed in actions commenced before October 1, 1981. In those actions commenced on or after October 1,1981, the interest shall be computed from the date the complaint in the civil action was filed with the court if the ‘offer of judgment’ was filed not later than eighteen months from the filing of such complaint. If such offer was filed later than eighteen months from the date of filing of the complaint, the interest shall be computed from the date the ‘offer of judgment’ was filed. The court may award reasonable attorney’s fees in an amount not to exceed three hundred fifty dollars, and shall render judgment accordingly. This section shall not be interpreted to abrogate the contractual rights of any party concerning the recovery of attorney’s fees in accordance with the provisions of any written contract between the parties to the action.”

       See footnote 2, supra.

       The inclusion of punitive damages of $124,977 awarded on the second count in the comparison of amounts was not questioned by the defendants at trial or on appeal.

       No such remedy is available where the complaint has not expressly invoked the relevant statute. Alaimo v. Royer, 188 Conn. 36, 43, 448 A.2d 207 (1982).


source: Caselaw Access Project

author: Dupont, C. J.

license: Public Domain

text:
    State of Connecticut v. Samuel Delgado
    (2718)
    Dupont, C. J., Borden and Daly, Js.
    Argued April 11
    decision released July 29, 1986

      Francis T. Mandanici, with whom, on the brief, was Richard L. Goldblatt, for the appellant (defendant).

      Julia DiCocco Dewey, assistant state’s attorney, with whom, on the brief, were Arnold Markle, state’s attorney, Patrick J. Clifford, assistant state’s attorney, and Richard Palomba, legal intern, for the appellee (state).
   Dupont, C. J.

After a trial to a jury, the defendant was convicted of the crime of manslaughter in the first degree, a violation of General Statutes §§ 53a-55 (a) (1) and (3). On appeal, the defendant claims that the trial court erred: (1) in giving unrecorded instructions, in a jury indoctrination session held the day before the defendant’s trial began, to all jurors who had been summoned for jury duty; (2) in excluding evidence concerning protection sought by the defendant from the victim; (3) in excluding evidence about the defendant’s previous approval of the victim’s application for accelerated rehabilitation; (4) in restricting the cross-examination of the prosecution’s key witness as to her knowledge of the victim’s reputation for violence; (5) in allowing the introduction of a photograph of the victim dressed in a tuxedo; and (6) in admitting the testimony of a rebuttal witness who claimed that the victim told her three months prior to the stabbing that he was afraid of the defendant.

The jury reasonably could have found the following relevant facts based upon the evidence presented. At the time of the incident, the defendant was fifty-one years of age and the victim was nineteen. The two parties had a history of “bad blood” between them, which included the exchange of threats and acts of violence. The victim had previously been arrested for assaulting the defendant’s daughter, the victim’s former girlfriend.

Approximately one year after that assault, the defendant became engaged in an altercation with the victim at the entrance of a bowling alley. Blows were exchanged, and the defendant received five to six hits to his head which necessitated subsequent medical attention. During the course of the struggle, the defendant stabbed the victim in the chest with a knife, causing his death. The defendant claimed that he had acted in self-defense.

I

The defendant’s first claim of error is that the trial court’s indoctrination of potential jurors prior to the commencement of the trial violated his constitutional rights to an impartial jury, to have counsel present at “important” proceedings, and to have a public trial. He also claims that the failure to record the indoctrination remarks interfered with his appellate rights. Such indoctrination of jurors is routinely given on the day that they report for jury duty, and consists of preliminary instructions which outline their primary duties and responsibilities. Neither the prosecution nor defense counsel is ordinarily present during such indoctrination procedure, and the proceedings are not usually recorded or transcribed.

The defendant failed to object to the indoctrination process at trial. Although the defendant concedes that this issue was not properly raised at trial, he argues that it is nonetheless reviewable because it involves fundamental constitutional rights. See State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973).

A three-pronged analysis must be undertaken in an Evans review. State v. Cosby, 6 Conn. App. 164, 167, 504 A.2d 1071 (1986). That analysis necessarily includes consideration of “(1) whether the record supports the defendant’s claim that the trial court’s action raises a question of fundamental constitutional dimension; (2) if so, whether the trial court’s action was erroneous; and (3) if there was error, whether it requires reversal.” Id.; see also State v. Grant, 6 Conn. App. 24, 27, 502 A.2d 945 (1986). If the first test is not met, the issue is not reviewable under Evans and it is not necessary to reach the analysis required by the other two tests. Our first inquiry, therefore, centers upon a determination of whether the record in this case supports the defendant’s claim that the indoctrination of the jury raises an issue of constitutional dimensions.

It is undisputed that the rights enumerated by the defendant concerning the right to an impartial jury, the right to have counsel present at critical stages in the criminal proceedings against him, and the right to an open court and public trial are all fundamental constitutional rights guaranteed by the federal and state constitutions. Merely because the defendant asserts these constitutional rights, however, does not necessarily mean that such constitutional rights are in fact involved in a particular case. It is not unknown for a defendant on appeal to “put a constitutional tag on a nonconstitutional claim.” State v. Vitale, 197 Conn. 396, 403, 497 A.2d 956 (1985). Appellate counsel has sufficiently reconstructed the record for purposes of review under the first test of Evans. A review of that record indicates that the trial judge made general comments regarding the general duty and obligations of the jurors, as well as general remarks regarding the burden of proof. There is not even a hint of prejudice to this particular defendant demonstrated in the court’s reconstruction of its remarks.

Although the record is sufficient for review, the second half of the first part of the Evans test has not been met. No fundamental constitutional right is involved. The defendant claims that the jury indoctrination deprived him of an impartial jury panel because the court’s statements were improper ex parte communications between the judge and members of the jury panel. He relies on State v. Altrui, 188 Conn. 161, 182, 448 A.2d 837 (1982). That case, however, provides him no support. There, during the trial, the court met privately with one juror. Here, the court spoke to all prospective jurors before any one of them had been assigned to any particular case. At this stage, the trial judge had no realistic way of knowing which jurors would be selected for the defendant’s trial. Moreover, because such indoctrination occurs before the trial begins, the potential for prejudice is greatly diminished in light of the instructions given to the jury by the trial judge in open court subsequent to the indoctrination. The possibility of the survival of any prejudicial remark is slight. See Jones v. State, 482 N.E.2d 243, 245 (Ind. 1985).

A review of other jurisdictions which have considered this issue supports this conclusion. The prevailing rule of law that has emerged regarding jury indoctrination is that such unrecorded remarks made to potential jurors at an indoctrination proceeding in which neither the defendant nor defense counsel are present is not prejudicial or a deprivation of a defendant’s constitutional right to an impartial jury. See, e.g., People v. Izzo, 14 Ill. 2d. 203, 151 N.E.2d 329 (1958); Jones v. State, supra; Brown v. State, 29 Md. App. 1, 349 A.2d 359 (1975); State v. Stroud, 683 P.2d 459 (Mont. 1984); State v. Vance, 162 W. Va. 467, 250 S.E.2d 146 (1978). The rationale behind this principle is that “[n]o litigant has a right, constitutional or otherwise, to have his case tried before ignorant jurors. To acquaint the juror with his duties and responsibilities in a new environment and to increase his understanding of the processes of a trial can hardly be objectionable in itself.” People v. Izzo, supra, 334.

In light of these principles, the defendant’s claim that his fundamental constitutional right to an impartial jury is involved is not supported and an Evans review is not required.

The defendant also asserts that the jury indoctrination procedure is reviewable under Evans because it involves a deprivation of his constitutional right to be present with the assistance of counsel at an important stage of his trial. The record reveals that the defendant was not present at the indoctrination. The constitutional right to be present in court with the assistance of counsel under the sixth amendment applies only to certain crucial proceedings. See State v. Falcon, 196 Conn. 557, 561, 494 A.2d 1190 (1985). There is no violation of the sixth amendment, however, when the accused and counsel are not present at noncritical stages “since there is minimal risk that . . . absence at such stages might derogate from [a defendant’s] right to a fair trial.” United States v. Wade, 388 U.S. 218, 228, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). The jury indoctrination proceeding does not constitute a critical stage of the criminal process against a defendant, nor has his trial even begun. See, e.g., Brown v. State, supra, 363; State v. Vance, supra, 151.

Equally without merit is the defendant’s claim that he has been denied a constitutional right to an open and public trial through the use of the indoctrination procedure. Contrary to the assertions of the defendant, the trial that the defendant received was both open and public, which is all that the constitution requires. A defendant has no constitutional right to an open and public jury indoctrination, a noncritical stage of the defendant’s trial. We are precluded, therefore, from reviewing this claim of constitutional deprivation under the first test of Evans.

Neither will we review the defendant’s claim that the unrecorded jury indoctrination proceeding deprived him of a full record and transcript in order to pursue his appeal. There is no constitutional right to appeal; rather, a right to appeal exists only if one has been created by statute. Gaines v. Manson, 194 Conn. 510, 515, 481 A.2d 1084 (1984).

Without issues of constitutional dimensions required by the Evans bypass, we will not consider the defendant’s first claim of error.

II

The defendant’s next claim of error was properly presented at trial and involves the trial court’s exclusion of certain evidence proffered as part of the defendant’s claim of self-defense. In order to establish his state of mind, and whether he was the aggressor, the defendant sought to introduce evidence regarding his alleged fear of the victim. In his offer of proof, the defendant asserted that three weeks prior to the stabbing incident, he had sent his wife to the state’s attorney’s office to seek protection for his family from the victim. The wife informed an assistant state’s attorney that the family was in fear, and requested assistance in keeping the victim away from her family. The wife also inquired about the possibility of getting the state’s attorney’s office to recommend some sort of psychological evaluation of the victim. During the course of this meeting, the defendant’s wife expressed concern over what the defendant would do regarding the situation. The assistant state’s attorney informed the defendant’s wife at that time that there was nothing that the state’s attorney’s office could do in the way of affording the family protection. Counsel for the defendant sought to introduce this evidence through the testimony of the defendant, the defendant’s wife, and the assistant state’s attorney. All such testimony regarding this evidence was excluded by the court as being collateral and confusing to the jury.

The defendant claims that such evidence was relevant to his state of mind, and was necessary to present to the jury his reason for carrying a knife on the particular night of the stabbing incident. The defendant argued strenuously to the trial court that the defendant’s self-defense theory was premised on the fact that following the meeting between the defendant’s wife and the state’s attorney’s office, the defendant believed that the law could not afford him any protection prior to any affirmative adverse action on the part of the victim. The defendant thus claimed that he felt compelled to seek other means to protect himself and his family from the victim.

This court has previously recognized that “[n]o precise and universal test of relevancy is furnished by the law, and the question must be determined in each case according to reason and judicial experience.” State v. Aspinall, 6 Conn. App. 546, 554, 506 A.2d 1063 (1986). In each case, we recognize that it is the trial court which is in the best position to view the evidence in the context of the case as a whole, and its rulings on the admissibility of evidence are given great deference. “On appeal, we are limited in our review to a determination of whether, under the circumstances of the case, in exercising its broad discretion, the trial court could legally act as it did, and not whether we, under the same circumstances, would make the same ruling.” Id. We disagree, however, under the facts of this case, with the trial court’s evidentiary ruling on this issue.

The evidence was crucial to the defendant’s claim of self-defense and the court should not have excluded it in its entirety. It was not irrelevant or collateral to the defendant’s case.

The state argues that such testimony amounted to hearsay, and was thus not admissible. It is an elementary premise of evidentiary law, however, that testimony is considered to be hearsay only when it is an out-of-court statement “offered to establish the truth of the matters contained therein.” State v. Sharpe, 195 Conn. 651, 661, 491 A.2d 345 (1985). If such testimony is offered, instead, as it was here, to show the defendant’s reasonable apprehension of danger or state of mind, it is not offered for its truth. See McCormick, Evidence (3d Ed. 1984) § 249, p. 734. Since the proffered testimony of the defendant, the defendant’s wife, or the state prosecutor sought to be introduced on this issue was not hearsay, and was not irrelevant or collateral to an issue in the case, it should have been admitted. See State v. Silveira, 198 Conn. 454, 503 A.2d 599 (1986).

Our determination that the trial court erred in the exclusion of such testimony does not necessarily require reversal unless such exclusion “was so prejudicial to the rights of the defendant as to deprive him of a fair trial. . . . ” State v. Ruth, 181 Conn. 187, 196-97, 435 A.2d 3 (1980). The crucial and controlling inquiry in such a determination is “whether the claimed erroneous action of the court would have been likely to affect the result.” State v. McClain, 171 Conn. 293, 300, 370 A.2d 928 (1976).

Our review of the record indicates that the exclusion of such evidence was likely to affect the result. It is a fundamental facet of due process that a defendant charged with a crime be afforded the right to establish and present a defense. State v. Corchado, 188 Conn. 653, 660, 453 A.2d 427 (1982). The defendant’s state of mind when he stabbed the victim was crucial to the finding of intent required to prove the commission of the crime of which he was found guilty. His state of mind was also essential to his claim of justification. Under General Statutes § 53a-19, a defendant may be found to be justified in using deadly physical force in order to defend himself or others when there is a reasonable belief that such force was necessary. The test for the degree of force in self-defense is subjective-objective. “The jury must view the situation from the perspective of the defendant. Section 53a-19 (a) requires, however, that the defendant’s belief ultimately must be found to be reasonable.” State v. DeJesus, 194 Conn. 376, 389 n.13, 481 A.2d 1277 (1984). The testimony excluded by the trial court was necessary to establish the reasonableness of the defendant’s belief to the jury.

In the present case, the defendant was entitled to present his version of the events, and to present such evidence to support his version in as full a manner as possible to the jury. The nature and extent of the evidence that was excluded was of a distinct and different order than other testimony which was admitted and which may have reflected on the aggressive nature of the victim. All other evidence presented regarding the victim’s aggressive behavior concerned incidents occurring in the remote past. The excluded testimony concerned events which took place three weeks before the commission of the crime.

The defendant’s entire defense was premised on the assertion that he was desperately afraid of the victim and had taken positive steps to seek protection for himself and his family. Most importantly, the defendant was told that the state’s attorney’s office had informed his wife that the state could offer no such protection. The defendant had a right to inform the jury why he felt a need to carry a knife. Although a new trial must be ordered because of the exclusion of this evidence, the remaining claims of error presented by the defendant are considered since they are likely to recur on retrial.

Ill

The defendant’s third claim of error also involves the trial court’s ruling on evidence relating to the defendant’s state of mind. The defendant sought to introduce the victim’s application for accelerated rehabilitation regarding the victim’s arrest for the assault of the defendant’s daughter, which was agreed to by the defendant a year prior to the stabbing incident. The defendant alleges that this evidence was relevant to the defendant’s state of mind by illustrating that he displayed a forgiving attitude towards the victim, and did not bear a grudge towards the victim because of this assault. The trial court excluded the evidence, ruling that it was collateral and irrelevant.

The admissibility of this evidence raises a close ques-. tion. A review of the record indicates that although this evidence was excluded on direct examination of the defendant, the state was permitted to conduct a cross-examination of the defendant which included questions regarding whether or not he had harbored angry feelings stemming from the assault of his daughter. He denied that he did. The exclusion of evidence tending to show the defendant’s state of mind a year prior to the alleged crime was within the broad discretion of the trial court, particularly where other evidence was introduced to show that state of mind. The court did not abuse its discretion in excluding it.

IV

The defendant’s next assignment of error involves the trial court’s restriction of the cross-examination of the prosecution’s key witness regarding her knowledge of the victim’s reputation as a fighter. The defendant claims that the court’s ruling violated his constitutional right of confrontation. During the cross-examination of the victim’s girlfriend at the time of the stabbing incident, the defense counsel asked her whether she knew anything about such reputation. The trial court sustained the state’s objection to this question on the ground that the defendant had not yet asserted a self-defense claim. In its ruling, the trial court noted that up to that point in the trial, the defendant had asserted that he did not commit the act. The court expressed its concern over admitting such evidence if a self-defense claim would not, in fact, be asserted. The court expressly stated, however, that when such evidence of a factual situation supportive of self-defense was presented, the defendant would be given an opportunity to bring forth evidence relating to the violent traits of the victim. Although the trial court recognized that its restriction would result in probable procedural confusion, it nonetheless sustained the state’s objection as the more prudent course to follow.

A defendant may introduce evidence of the violent character of the victim when a sufficient foundation for self-defense has been asserted. State v. Miranda, 176 Conn. 107, 405 A.2d 622 (1978). The defendant does not claim that he was prevented from introducing such evidence altogether, but, asserts instead, that he was prevented from doing so during the cross-examination of the state’s witness.

The function of cross-examination is to test the credibility of the witness. State v. Denby, 198 Conn. 23, 31-32, 501 A.2d 1206 (1985). Thus, the question in determining the relevancy on cross-examination is not “whether the answer sought will elucidate any of the main issues, but whether it will to a useful extent aid the court or jury in appraising the credibility of the witness. . . .” Id. Although testimony relative to the defendant’s defense of justification, which he indicated would be made, is a main issue, it was not relevant to the credibility of the witness.

The relevance of cross-examination is within the trial court’s discretion. State v. Vitale, supra, 402. Cross-examination is sufficient to satisfy the sixth amendment “when defense counsel is permitted to expose to the jury the facts from which the jurors, as the sole triers of the facts and credibility, can appropriately draw inferences relating to the reliability of the witness.” Id., 402. As long as the trial court has allowed sufficient cross-examination to satisfy the sixth amendment requirements, this court will apply every reasonable presumption in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.

The trial court’s restriction of the cross-examination of the state’s key witness in this case was not constitutionally defective. The defendant was not attempting with this evidence to discredit the reliability of the witness, but rather, to introduce evidence relating to a self-defense claim.

The record reflects that, contrary to the defendant’s assertions, the testimony of the state’s witness did not portray an image of the victim as the nonaggressor. In fact, her testimony indicated that not only was there mutual “bad blood” between the parties, but that the victim carried knives in his car. Moreover, the witness testified that she saw the victim punching the defendant. She also stated that she knew that the victim would fight the defendant. Because her testimony indicated that the victim had an aggressive character, the defendant’s cross-examination of the witness as to whether the witness was aware of the victim’s reputation as a fighter was irrelevant as to the motive, bias, or interest of the witness. There was no deprivation of the constitutional right of the defendant to cross-examine a witness.

Evidence of the reputation of the victim as a fighter was elicited during the subsequent testimony of the defendant, the defendant’s wife, and the defendant’s daughter. Most importantly, the defendant was able to recall the state’s witness in order to establish such reputation after his self-defense claim had been raised by the introduction of his own evidence, but failed to do so. There was, therefore, no error in the trial court’s limitation of the cross-examination of the state’s witness.

V

The defendant next claims that the trial court erred in admitting a photograph of the victim into evidence over his objection. The photograph depicted the victim in a tuxedo, and was introduced by the prosecution for the purpose of identification. The defendant offered to stipulate to the identification of the deceased as the victim, and contends that such photograph was thus devoid of any probative value, and its admission could only arouse the sympathy of the jurors.

The general rule adhered to regarding the admissibility of photographs is that they “ ‘ “are admissible in evidence when otherwise properly admitted if they have a reasonable tendency to prove or disprove a material fact in issue or shed some light upon some material inquiry. Note, 73 A.L.R.2d 769, 787. A photograph, the tendency of which may be to prejudice the jury, may be admitted in evidence if, in the sound discretion of the court, its value as evidence outweighs its possible prejudicial effect. Thibodeau v. Connecticut Co., 139 Conn. 9, 14, 89 A.2d 223 (1952) State v. DeJesus, supra, 381. Moreover, potentially inflammatory photographs need not be absolutely essential to the prosecution’s case in order to be admissible, but must merely be found to be relevant. State v. Piskorski, 177 Conn. 677, 701, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979). Thus, as long as the photograph is shown to be relevant to the prosecution’s case, the trial court can exercise its discretion in admitting such evidence, as long as its probative value outweighs any prejudicial effect. State v. DeJesus, supra, 381-82. As in all such evidentiary rulings, the trial court exercises broad discretion in admitting such photographs into evidence, and its determination will not be disturbed on appeal unless a clear abuse of that discretion is shown. State v. Piskorski, supra, 700-701.

We have examined both the photograph and the record and find no abuse of discretion in this case. The exhibit in question was a three and one-half inch by five inch color photograph depicting the victim only from the chest up, dressed in a tuxedo.

The state was entitled to introduce all legally competent evidence which could aid the jury in determining relevant issues. The photograph was clearly relevant and probative on the issue of the identification of the victim. Although the defendant conceded to the identification of the victim as the deceased, the photograph was nonetheless admitted so that other witnesses to the incident who were not familiar with the victim could identify the victim and then adequately testify to his actions on the night of the stabbing incident. The picture was not inflammatory, not prejudicial and was relevant. The trial court did not abuse its discretion in admitting it into evidence.

VI

The defendant’s final assignment of error concerns the trial court’s admission into evidence of the testimony of the state’s rebuttal witness who claimed that the victim told her three months prior to the stabbing that he was afraid of the defendant and was in fear for his life. The defendant acknowledges in his brief that such statements are admissible under the state of mind exception to the hearsay rule. The defendant, however, asserts that under the circumstances presented in this case, the trial court abused its discretion in admitting such evidence because of the prejudice resulting to the defendant from the trial court’s prior exclusion of the application for accelerated rehabilitation and the testimony regarding the meeting between the defendant’s wife and the state’s attorney’s office in which the fears of the defendant’s family were discussed. Our conclusion that the exclusion of the latter evidence of the defendant was error and that such evidence should have been admitted effectively disposes of the defendant’s final claim. On retrial, both the defendant’s evidence as to that meeting and the evidence of the state’s rebuttal witness should be admitted.

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

In this opinion the other judges concurred.

       Following the trial and conviction of the defendant, the trial judge who presided at the trial and at the indoctrination session provided a general outline of the comments made to the jurors during the indoctrination procedure in response to the defendant’s motion to construct a transcript and record. The trial judge noted that the same format is given routinely whenever potential jurors are indoctrinated. In its memorandum, the trial court provided the following reconstruction of the comments made: “Following a preamble outlining the general nature of a jury trial and the relative functions of the court and jury the jury was specifically instructed that it must accept the law as given by the court.
      “With respect to criminal cases the jury was told:
      “(1) The fact the accused has been arrested, indicted or is the defendant in a criminal case does not carry any stigma of guilt.
      “(2) An accused person is presumed to be innocent.
      “(3) The state has the burden of proving guilt beyond a reasonable doubt.

        “(4) The accused person is not required to prove his innocence; he is not obliged to testify in his own behalf and if he exercises his privilege in this respect the jury may draw no adverse inference therefrom.
      “(5) The credibility of witnesses presents an issue for decision by the jury. The testimony of a police officer is not cloaked with any special sanctity and is to be subjected to the same tests as the testimony of other witnesses.
      “The jury was also instructed that the remarks of the court were not intended to be a full and complete statement of all applicable rules of law but simply comments which hopefully would assist it in understanding its most important task.”

         The record also reflects that references were made to what was discussed at the jury indoctrination in open court, after the jury had been selected and sworn. The following soliloquy was presented by the trial court: “As I indicated to you at the outset the other day when I was conducting the indoctrination upstairs, the law does not require an accused to prove his innocence. ... In this case, as in all jury cases, as I told you yesterday upstairs and indicated in my preliminary comments concerning this matter at the outset, that you as the Jury and myself as the Court have rather separate and distinct, but equally important parts and functions. . . . Also, it’s most important that you keep an open mind. As I said to you yesterday I believe, that is, those that were in the group I spoke to, don’t be the kind of a person who hears what one witness has to say and then immediately jumps to a conclusion that you know all that there is to know about the case.”

       It has been noted that such jury indoctrination procedures are customarily used to acquaint jurors with their prospective duties and responsibilities in several states. See annot., 89 A.L.R.2d 197 (1963). “All authorities and commentators are thus in agreement that there is a need for and it is proper to initiate the jury panel at the beginning of the term by informing them of their duties and responsibilities.” State v. Vance, 162 W. Va. 467, 475, 250 S.E.2d 146 (1978).

       There may be cases where the reconstructed record of the jury indoctrination may indicate such a grossly erroneous statement of the law that a defendant might have been denied a fair trial even though the indoctrination is not a critical stage in the criminal proceedings or part of a trial against a particular defendant. This is not such a case.

         General Statutes § 54-56e requires that notice be given to the victim and that the victim have an opportunity to be heard on defendant’s motion.

       The state was permitted to conduct the following cross-examination of the defendant:
      ‘Q. Is it fair to say, Mr. Delgado, that based on the incident between Michael and your daughter, and the other run-ins you had with Michael, that you were angry at him?
      “A. No, sir.
      “Q. You were not mad.
      “A. No, sir.
      “Q. You did not wish to take the law into your own hands concerning Michael Keating?”
      “A. No, sir.”

         The trial court’s ruling on the exclusion of such evidence included the following: “I think I ought to indicate for the record, so as to afford Mr. Goldblatt an opportunity to have a record in the event of an appeal. That I am going to exclude at this stage of the proceedings, any evidence relating to any trait of character. For instance, for violence, if that’s what is sought to develop. And the reason for that is this. And I don’t think it necessary to develop this concept anymore than has already been developed. The position of the accused in the case from the very outset has been, and even up through and including the time that this trial started, that he did not do this. And as it was pointed out with that contention having been asserted that would be no basis for the defense of justification, or self-defense. And I feel therefore that the safer and more prudent course to follow is to eliminate any evidence at this time with respect to the character trait of the decease[d] which might otherwise be involved in the self-defense case. Until such time as there has been evidence of a factual situation supportive of self-defense. And if indeed that develops, then of course I will award Mr. Goldblatt an opportunity to approach the matter in terms of traits of character as provided for in the evidentiary rules relating to this case. Now, I understand that this creates a modest problem in terms of procedure. On the other hand I just feel that this is the safer course to pursue. So, the objection which was interposed to the question directed to Miss Condon is sustained. And you may have an exception.”

       Prior to the court’s ruling on the state’s objection and out of the presence of the jury, the defendant specifically alerted the court to the fact that a defense of self-defense would be used.


author: Borden, J.

text:
    State of Connecticut v. Raul Santiago State of Connecticut v. Benjamin Campfield et al. State of Connecticut v. Ollie Lawrence et al.
    (4564) (4565) (4566)
    Borden, Daly and Bieluch, Js.

      Argued March 19
    decision released July 29, 1986

      Carl Schuman, assistant state’s attorney, with whom, on the briefs, were Katherine J. Lambert and James L. Radda, former deputy assistant state’s attorneys, for the appellant (state).

      James Kearns, with whom were David Goldman and, on the briefs, Earl I. Williams, for the appellees (named defendant in each case).
   Borden, J.

In these combined cases, the state appeals, with the permission of the trial court, from the judgments of the court dismissing with prejudice the informations against the defendants following the suppression of evidence by the trial court. The informations charged the defendants with professional gambling in violation of General Statutes § 53-278b. The filing of the informations resulted from two searches in New Haven made pursuant to search and seizure warrants. The issues involve (1) whether the defendants established reasonable expectations of privacy in the areas searched so as to enable them to challenge the introduction of the evidence gathered by the searches, and (2) whether the facially general warrants were made sufficiently particular by reference to the applications and affidavits which accompanied them. We find error and remand for further proceedings.

There are three separate appeals. Two of the appeals, those involving the defendants Campfield and Santiago, arise out of a search pursuant to a warrant on April 1, 1982, of premises at 844 Grand Avenue, in New Haven, known as The 844 Grand Avenue Recreation Center. The third appeal, involving the defendant Lawrence, arises out of a search pursuant to a warrant on April 3, 1982, at 444 Legion Avenue, in New Haven, known as the Chicken Plus Luncheonette.

The Grand Avenue cases arose as follows: On March 31, 1982, a search and seizure warrant was issued by a Superior Court judge based on an affidavit establishing probable cause to believe that The 844 Recreation Center was being used as an after hours club and was disposing of liquor without a permit in violation of General Statutes § 30-77. The warrant was signed by the judge, but those parts of the printed warrant form describing the place and person to be searched and the property to be seized were left blank.

The parts of the form describing the place and person to be searched consisted of two boxes, which were not checked, followed by certain recitals and a blank space to be filled. The first box was followed by the following language: “enter into or upon and search the place or thing described in the foregoing Affidavit and Application, to wit. ...” The second box was followed by the following language: “search the person described in the foregoing Affidavit and Application, to wit . . . . ” The part of the form describing the property to be searched for was as follows: “for the property described in the foregoing Affidavit and Application, to wit . . . .” None of the boxes was checked, nor were the blanks filled in.

On April 1,1982, the New Haven police department executed the warrant. The lengthy return and inventory indicated that the police “searched the person, place, or thing named [in the warrant], to wit: 844 Grand Avenue — Grand Avenue Recreation Center located on the (1st) First Floor and Basement of 844 Grand Ave. and found thereon or therein, seized and now hold in custody the following [list of items].” The defendants involved in the Grand Avenue cases were arrested at the time of the execution of the search warrant.

The Legion Avenue cases arose as follows: On April 3,1982, a search and seizure warrant was issued by a Superior Court judge based on an affidavit establishing probable cause to believe that the crime of keeping liquor with intent to sell, in violation of General Statutes § 30-77, was being committed at 444 Legion Avenue, in New Haven. The affidavit and application described the premises as “the first floor store front with silver metal facade with large glass windows covered with black curtain type material, and a sign with the lettering above the windows stating Chicken Plus Luncheonette.” The warrant was signed by the judge, but the same boxes were unchecked and the same blanks not filled in as was the case with respect to the Grand Avenue warrant. The New Haven police department executed the warrant on the same day. The return and inventory indicated only that they had searched “444 Legion Ave. Silver Metal facade, Store Front, Large Windows, with sign above windows stating Chicken Plus Luncheonette,” and that the property seized was “[a]ll pertinent property pertaining to said Search Warrant.” The defendants involved in the Legion Avenue cases were arrested at the time of the execution of the search warrant.

All the defendants, in both the Grand Avenue and Legion Avenue cases, moved to suppress all the evidence seized and moved for its return, claiming that the warrants were invalid on the common ground of lack of particularity. The defendants in all cases did not question the probable cause established by the underlying affidavits, relied solely on the facial invalidity of the warrants themselves, and presented no evidence. The state claimed that (1) none of the defendants had established a reasonable expectation of privacy in the area searched; (2) the lack of particularity in the warrants was cured by the incorporation by reference of the underlying affidavits; and (3) even if the warrants were invalid, the seizures were independently justified because the police officers executing the warrants had been invited into public places. The state offered to introduce evidence to support this last claim, which evidence the trial court rejected as irrelevant.

The trial court ruled that the warrants were facially invalid for lack of particularity, and suppressed all the evidence seized and ordered it returned. Upon the state’s concession that it could not prosecute without the suppressed evidence, the court dismissed all the informations with prejudice. These appeals followed.

I

We first consider the cases involving all the defendants except Campfield. The state argues that the court erred in granting the defendants’ motions to suppress, and thus in dismissing their cases, because they did not establish the requisite reasonable expectations of privacy. We agree.

The law is clear that, in order for a defendant to challenge the introduction of evidence resulting from a search and seizure, he must at the threshold establish a reasonable expectation of privacy in the area searched. “A person may not object to the introduction of evidence resulting from an illegal search unless he first proves that he was a victim of that search. Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S. Ct. 2556, 65 L. Ed. 2d 633 (1980). One is a victim of a search when it violates his reasonable expectation of privacy in the area searched. Rakas v. Illinois, 439 U.S. 128, 143, 99 S. Ct. 421, 58 L. Ed.2d 387, reh. denied, 439 U.S. 1122, 99 S. Ct. 1035, 59 L. Ed. 2d 83 (1978). Therefore, the first question that must be answered in any suppression case is whether the individual who seeks suppression had a reasonable expectation of privacy in the area searched.” State v. Daay, 5 Conn. App. 496, 498, 500 A.2d 248 (1985). “Absent such an expectation, the subsequent police action has no constitutional ramifications.” State v. Brown, 198 Conn. 348, 355, 503 A.2d 566 (1986). The defendant “has the burden of proving that he had a reasonable expectation of privacy in the area searched.” State v. Daay, supra, 499. It is not sufficient for this purpose that a defendant seeking to challenge a search was legitimately on the premises searched. Rakas v. Illinois, supra, 142-48.

These defendants made absolutely no effort to establish their reasonable expectations of privacy in either the Legion Avenue or Grand Avenue premises. There is nothing in these records, either in the trial court or in this court, which would permit them to challenge either search. There is nothing in these records to establish the connection of any of these defendants with the premises searched which would establish his reasonable expectation of privacy in those premises. They utterly failed to lay any foundation for this basic threshold requirement for such a challenge.

The defendants argue in their brief that their reasonable expectations of privacy derive solely from “the fact that all defendants had their persons searched and that a substantial sum of money was seized from ‘various persons arrested. . . . ’ ” See footnote 5, supra. There is nothing in this record, however, to support their factual claim that all the defendants were searched, because the defendants made no effort to individualize their claims in the trial court. The return and inventory does not indicate that all defendants were searched. They presented no evidence as to how either warrant was executed. They presented no evidence that all the defendants were searched and they made no effort to establish what property or money was seized from whom. While it may be true that some or all defendants were searched and that some money or other evidence was seized from some or all of them, each defendant had the burden to establish that he was searched in order to establish his individual reasonable expectation of privacy. The fact that a total sum of money was seized from “Various Persons Arrested”; see footnote 5, supra; is insufficient to give every defendant arrested a reasonable expectation of privacy sufficient to challenge all the evidence seized. Under these circumstances, their blanket claim, while it purported to cover all of them, in fact covered none.

II

This leaves for consideration Campfield’s challenge to the search of the Grand Avenue premises and the seizure of the evidence therefrom. We conclude that he established a sufficient expectation of privacy in the premises. We also conclude that the warrant, when read together with the application and affidavit which was attached to it, was valid. Analysis of the state’s appeal as to Campfield requires further elaboration of the application and affidavit, and of the seareh and seizure warrant, which were before the trial court.

The combined application and affidavit for the search and seizure warrant stated, inter alia, as follows: “The undersigned . . . has probable cause to believe that certain property, to wit: bar, beer, alcoholic liquor, monies, mixes, stereo equipment, pool tables, signs, disco lights, glasses, tables, chairs, and dice is possessed, controlled, designed or intended for use as a means of committing the crime of unauthorized sale of alcoholic liquor. And is within or upon a certain person, place or thing, to wit . . . The 844 Grand Ave. Recreation Center located on the first floor and basement of 844 Grand Ave. which is a three (3) story brick structure with the first and second story having wood facing.” The underlying facts establishing probable cause were as follows: Between midnight and 8:00 a.m. at various times between December 21,1981, and January 17, 1982, a New Haven police officer saw several men and women enter and exit the premises. On February 27, 1982, a New Haven police officer entered the premises to check the recreation club’s permit. He observed three pool tables on the first floor and, in the basement, a bar fully stocked with beer and assorted alcoholic liquors, with a sign behind the bar indicating the prices of drinks. There were several persons at tables drinking alcoholic beverages. A small room off the basement contained a dice table. There was a dance floor, sound equipment and disco lights. The affidavit also stated that the premises had a three door front entrance; the two inner doors were operated by a buzzer activated by a doorman. When the police officer entered the premises, the doorman activated a switch which turned off the basement lights, warning the people inside that the police were present. The affidavit stated that Campfield was the permittee for the recreation center. Other facts stated in the affidavit were that separate surveillances of the premises between midnight and 6:00 a.m. on March 25, March 26, and March 28,1982, disclosed many persons entering the premises and thereafter leaving the premises in intoxicated states. The affidavit concluded with the request “that a warrant may issue commanding a proper officer to search said person or to enter into or upon said place or thing, search the same, and take into custody all such property.”

The search and seizure warrant contained the following language: “The foregoing Affidavit and Application for Search and Seizure Warrant having been presented to and been considered by the undersigned, a Judge of the Superior Court .... From said Affidavit, the undersigned finds that there is probable cause . . . to believe that the property described in the foregoing Affidavit and Application is within or upon the person, if any, named or described in the foregoing Affidavit and Application, or the place or thing, if any, described in the foregoing Affidavit and Application, under the conditions and circumstances set forth in the foregoing Affidavit and Application, and that, therefore, a Search and Seizure Warrant should issue for said property.” The warrant then commanded any police officer “to enter into or upon and search the place or thing described in the foregoing Affidavit and Application, to wit: . . . for the property described in the foregoing Affidavit and Application, to wit: . . . and upon finding said property to seize the same, take and keep it in custody until the further order of the court. . . . ” As noted above, the preprinted box before the words, “enter into or upon and search the place,” and the space following the phrase, “to wit,” was left blank.

The state concedes on appeal that analysis of Camp-field’s claim of an expectation of privacy differs from that of the other defendants. The state argues, nonetheless, that he did not sufficiently establish a reasonable expectation of privacy to challenge the search. We disagree. We conclude that his status as permittee gave him a sufficient reasonable expectation of privacy in the premises to challenge the search of those premises.

Whether a person has a reasonable expectation of privacy in an area involves a two part inquiry: (1) whether the individual has exhibited a subjective expectation of privacy; and (2) whether that expectation is one that society is prepared to recognize. State v. Daay, supra, 498. The description in the affidavit of the precautions taken at the front entrance to the recreation center are certainly sufficient to manifest a subjective expectation of privacy.

Although it is not clear from this record, we deduce that Campfield was the permittee of the recreation center under a permit to conduct a public billiard and pool room pursuant to General Statutes § 53-280. Such a permit requires the permittee to be responsible for the control of the premises so that they are not used in violation of the restrictions provided in General Statutes §§ 53-280 and 53-281. Those restrictions prohibit gaming, and also regulate the areas in which food may be sold, the hours of operation and the age of the patrons. Violations of these restrictions subject the permittee to revocation or nonrenewal of his permit and to criminal penalties. Id.

Implied in this liability of the permittee for violations of the permit restrictions is the right of the permittee to exclude persons from the premises. “One of the main rights attaching to property is the right to exclude others, see W. Blackstone, Commentaries, Book 2, Ch. 1, and one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of his right to exclude.” Rakas v. Illinois, supra, 144 n.12; see also State v. Brown, supra, 357 (reasonable expectation of privacy may derive from right to control access and exclude others).

We reject the state’s argument that, because the center was a public place, Campfield had no reasonable expectation of privacy in it. It is true that General Statutes § 53-280 provides for the grant of a permit “to conduct [a] public billiard and pool [room],” and that General Statutes § 53-281 provides that “[a]ny . . . police officer may at any time enter a public billiard or pool room for the purpose of ascertaining if the law is being violated therein. . . . ” It is also true that, as such a public place subject to such entry, the level of expectation of privacy which society is prepared to recognize is quite low in the privacy hierarchy.

We do not believe, however, that these factors alone eliminated in this case an otherwise reasonable expectation of privacy on the part of Campfield, the person in control, where the police conduct in question was not objectively like that of a public patron engaging in the normal transaction of the business of the premises. “[T]here is no basis for the notion that because a retail store invites the public to enter, it consents to wholesale searches and seizures that do not conform to Fourth Amendment guarantees.” Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 329, 99 S. Ct. 2319, 60 L. Ed.2d 920 (1979) (town justice viewing and examining books in manner different from that of ordinary patron); cf. Maryland v. Macon, 472 U.S. 463, 469, 105 S. Ct. 2778, 2782, 86 L. Ed.2d 370 (1985) (where undercover officer purchased obscene magazines in normal manner, the defendant “did not have any reasonable expectation of privacy in areas of the store where the public was invited to enter and to transact business”). In this case, the police entered for the purpose of executing the search and seizure warrant with which they were armed and, from a perusal of the return and inventory, they executed it sweepingly. Under these circumstances, they can hardly be viewed as akin to public patrons. Furthermore, we cannot find, either in the trial court record or in the state’s brief on appeal, any reliance on that part of General Statutes § 53-281 which grants a right of entry to the police at any time to ascertain if the law is being violated. We, therefore, need not decide what effect that statutory provision may have on the question of Campfield’s reasonable expectation of privacy. His right to challenge the search of the recreation center has been established.

We turn, therefore, to the state’s principal claim of error. That claim is that the facial lack of particularity of the search and seizure warrant was cured by reference to the application and affidavit which was attached to the warrant and which specifically was incorporated into the warrant. We agree.

The particularity clause of the fourth amendment requires that no warrants issue except those “particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const., amend. IV. This standard is met with respect to the place to be searched “ ‘if the description is such that the officer with a search warrant can with reasonable effort ascertain and identify the place intended.’ Steele v. United States No. 1, 267 U.S. 498, 503, 45 S. Ct. 414, 69 L. Ed. 757 (1925); United States v. Alexander, 761 F.2d 1294, 1300 (9th Cir. 1985).” State v. Abbott, 5 Conn. App. 441, 446-47, 499 A.2d 437 (1985). With respect to the things to be seized, the standard is met if “ ‘the officer executing it can identify the property sought with reasonable certainty.’ ” 1 LaFave & Israel, Criminal Procedure § 3-4 (f), quoting State v. Muldowney, 60 N.J. 594, 600, 292 A.2d 26 (1972).

There are three purposes behind the particularity clause: (1) to prevent general searches; (2) to prevent the seizure of objects in the mistaken belief that they are within the scope of the issuing magistrate’s authorization; and (3) to prevent the issuance of warrants on vague or doubtful factual bases. LaFave & Israel, supra. Reading the particularity clause in the light of these three purposes has led the courts to recognize a well established exception to the general rule that the warrant itself must describe with sufficient particularity the place to be searched and the property to be seized. “In determining whether the description given the executing officer was sufficiently detailed, it is of course important initially to examine the description which appears in the warrant itself. If that description is inadequate, however, it is appropriate to look to the description appearing in the warrant application or affidavit if it is clear that the executing officers were in a position to be aided by these documents, as where they were attached to the warrant at the time of execution and incorporated therein by reference.” (Emphasis in original; footnote omitted.) 2 LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 4.5, pp. 73-74; see United States v. Johnson, 690 F.2d 60, 64 (3d Cir. 1982), cert. denied, 459 U.S. 1214, 103 S. Ct. 1212, 75 L. Ed. 2d 450 (1983); United States v. Wuagneux, 683 F.2d 1343, 1350-51 (11th Cir. 1982); United States v. Brock, 667 F.2d 1311, 1323 (9th Cir. 1982); see also State v. Rose, 168 Conn. 623, 645-46, 362 A.2d 813 (1975) (Cotter, J., dissenting on other grounds). Indeed, Campfield concedes the validity of this principle in his brief, but argues that it does not apply because the warrant in this case does not refer to the affidavit. We conclude that this principle applies in this case.

The parties stipulated in the trial court that the application and affidavit were attached to the warrant when it was executed. The application and affidavit described with reasonable particularity both the place to be searched and the property sought to be seized. The place was identified as The 844 Grand Avenue Recreation Center located on the first floor and basement of 844 Grand Avenue, described as a three story brick structure and second story with a wood facing. The property sought to be seized was described as a bar, beer and other alcoholic beverages, mixes, money, stereo equipment, pool tables, signs, disco lights, glasses, tables, chairs and dice. The factual statement establishing probable cause in the affidavit further elucidated the general locations of these items within the premises. The application and affidavit, at its conclusion, requested authority “to enter into or upon said place .... search the same, and take into custody all such property.”

The search and seizure warrant clearly incorporated the critical parts of the application and affidavit by reference. The warrant began by referring to “[t]he foregoing Affidavit and Application for Search and Seizure Warrant. . . . ” It then referred to “the property described in the foregoing Affidavit and Application . . . within . . . the place . . . described in the foregoing Affidavit and Application, under the conditions and circumstances set forth in the foregoing Affidavit and Application, and that, therefore, a Search and Seizure Warrant should issue for said property.” It concluded by commanding an officer to “enter into or upon and search the place . . . described in the foregoing Affidavit and Application . . . for the property described in the foregoing Affidavit and Application . . . and upon finding said property to seize the same . . . . ”

We note, of course, that the list of items actually seized; see footnote 5, supra; goes far beyond the property described in the application and affidavit and incorporated by reference in the warrant. We note also, however, that Campfield did not challenge the evidence on this basis in the trial court or attempt in this court to justify the trial court’s judgment on that alternate ground. See Practice Book § 3012 (a). Of course, a seizure of property beyond the bounds of that which is described in a search and seizure warrant may be valid based on applicable exceptions to the warrant requirement, such as plain view or a search incident to a valid arrest. Because Campfield did not in the trial court and does not in this court seek to suppress any of the evidence seized on this basis, we have no need to consider such a claim, nor will the trial court on the remand. See footnote 9, supra.

There is error in each case, the judgments granting the motions to suppress and return, and dismissing the informations are set aside, and the cases are remanded for further proceedings according to law.

In this opinion the other judges concurred.

       These appeals were transferred to this court by the Supreme Court. General Statutes § 51-199 (c).

       These two appeals were also combined by the trial court with the appeals in the cases of the following defendants whose companion cases were prosecuted, by stipulation of the parties, with the cases of Campfield and Santiago: Wilbur House, Angel Ortiz, Robert Woods, Rocell Wilson, Allen Jeffries, Anthony Poppagoda, Henry Hannible, Joseph Williams, Ollie Lawrence, Viola Pugh, Eddie Parks, Milvin Long, Donald Fleming, Willie Grinnan, Cleveland Ellison, Miguel Pitman, and Pasquale Russo.

       This appeal was also combined by the trial court with the appeals in the cases of the following defendants whose companion cases were prosecuted, by stipulation of the parties, with the case of Lawrence: Anthony Poppagoda, Pasquale Russo, Michael LaRoceo, Willie Highsmith, John Lewis, Cleveland Ellison, Raymond Knox, Claude Ellison, John Green, Paul Acklin, Victor Mase, J.T. Williams, and Charles Tyson.
      It appears from this record that Santiago was also arrested at the Legion Avenue premises and charged together with these defendants. Thus his separate appeal relates to both the Grand Avenue and the Legion Avenue searches. It also appears that the following defendants, whose names appear in the Grand Avenue appeal, are also involved in the Legion Avenue appeal: Anthony Poppagoda, Pasquale Russo, and Cleveland Ellison.

       Although this language appears on the warrant form, it is clear from the return and inventory that the police regarded the warrant as authorizing only the search of the premises and the seizure of certain property therein, and not as authorizing the search of any particular person. Nor does the state on appeal attempt to justify the warrant as authorizing the search of any individual. We therefore treat this case as involving a search and seizure warrant aimed at premises and property therein, and not as directed at a person.

       The items seized were as follows: two portable television sets; two cigarette machines; two soda machines; two juke boxes; three refrigerators; two video game machines; a pinball machine; a room fan; four doors; a door buzzer; assorted bar stools and other chairs and tables; a box of records; a pool table; a foam rubber cushion for backing on a crap table; a bar; various stereo equipment and other electrical appliances; a card table for eight players; two kitchen type tables; three coin operated pool tables; a table mounted on saw horses and used as a crap table; a door closer; a cash register; various items of food and drink, both alcoholic and nonalcoholic; bar supplies; fifteen pool cue sticks with a rack; $23.75 in quarters which fell from pool tables while they were being removed; nine dice; thirty-eight boxes of dice; a box of playing cards; eight playing cards with numbers written on the backs; a cigar box containing $28.75; and “$9,049.06 seized from Crap Table & Various Persons Arrested on Gambling Charges.”

       The state argues on appeal, for the first time, that none of the Legion Avenue defendants actually filed a motion to suppress, either orally or in writing, and that its appeal in those cases should be sustained on that basis alone. As the defendants correctly point out, however, it is clear from the trial court record that all parties, including the state, presented both sets of cases to the trial court on the assumption that motions to suppress had been filed. Since this was the assumption on which the cases were tried and decided, we will review them on the same assumption. See State v. McKnight, 191 Conn. 564, 578-79 n. 14, 469 A.2d 397 (1983).

       For purposes of this analysis we have disregarded the state’s offer of proof made in the trial court, and rejected by it as irrelevant, that despite those precautions the police officers were admitted, both at the initial entry preceding the warrant and at the execution of the warrant itself, without inquiry or objection by the doorman. We do so, not because such a factual showing may not be pertinent, but because it is not necessary to consider it due to our disposition of Campfield’s claim.

       General Statutes § 53-280 provides: “billiard and pool rooms; permits. The first selectman of any town, the chief of police of any city or the warden of any borough may grant permits to suitable persons to conduct public billiard and pool rooms in such town, city or borough, as the case may be, and may revoke any permit issued by him, for cause found after hearing. The use of any billiard or pool table for the purpose of gaming within any billiard or pool room, for the conduct of which a permit has been granted, or the carrying on within such billiard or pool room of any game of chance shall be sufficient cause for the revocation of such permit or for the refusal of a renewal of such permit. Each application for such a permit shall be in writing and shall describe the place where such billiard or pool room is to be located and state the number of tables to be used therein and the name of the proprietor thereof. Each such permit shall designate the place where such business is to be carried on and shall continue in force for one year unless revoked. Each person receiving such permit shall annually pay to the authority granting the same the sum of ten dollars for the use of the municipality. Any person who conducts, maintains or keeps open a public billiard or pool room without such permit shall be fined not more than fifty dollars or imprisoned not more than six months or both.”

       We do not decide that Campfield’s reasonable expectation of privacy as the permittee of the premises automatically entitled him to challenge the seizure of all the evidence gathered. We emphasize that this was a search of premises in which numerous persons were found and arrested, and that many items were seized, some incriminating and many benign. See footnote 5, supra. We also emphasize that the return and inventory did not identify what was seized from whom or from where; and that even in the face of the state’s response that the defendants had to establish their reasonable expectations of privacy, Campfield, together with all of the other defendants, made no effort, other than to note his status as permittee, to identify what items he claimed were within his protected expectation of privacy.
      “The Fourth and Fourteenth Amendments protect the ‘legitimate expectations of privacy’ of persons, not places.” Ybarra v. Illinois, 444 U.S. 85, 91, 100 S. Ct. 338, 62 L. Ed.2d 238 (1979), reh. denied, 444 U.S. 1049, 100 S. Ct. 741, 62 L. Ed. 2d 737 (1980). In Ybarra, the Supreme Court decided that a search warrant authorizing the search of a bar and of its bartender did not authorize the search of the patrons of the bar. In discussing the separate and individual expectations of privacy of the bartender and the patrons, the court stated: “Each patron who walked into the [bar] was clothed with constitutional protection against an unreasonable search or an unreasonable seizure. That individual protection was separate and distinct from the Fourth and Fourteenth Amendment protection possessed by the proprietor of the tavern . . . .” (Emphasis added.) Id., 91-92. Similarly, in this case what may have been taken from the persons of various patrons of the recreation center, or from areas then under their immediate control, were not necessarily at that time within the individual reasonable expectation of privacy of Campfield as the permittee. Because Campfield limited his challenge to the facial invalidity of the warrant, because he made no attempt to individualize his claim, and because we conclude that the warrant was not invalid, we need not decide the precise contours of his protected privacy expectation. Nor, for the same reasons, will it be necessary for the trial court to do so on the remand. To permit him now to challenge the search anew on bases other than those originally raised in the trial court would be to encourage a piecemeal challenge to the same search and seizure, a procedure which our practice does not countenance.