author: Hull, J.

text:
    State of Connecticut v. John D. Chauvin
    (3733)
    Dupont, C. J., Hull and Spallone, Js.
    Argued June 5
    decision released July 29, 1986

      Richard R. Brown, for the appellant (defendant).

      James G. Clark, deputy assistant state’s attorney, with whom, on the brief, was James E. Thomas, assistant state’s attorney, for the appellee (state).
   Hull, J.

On December 23,1982, the defendant was arrested and charged with manslaughter in the first degree, a violation of General Statutes § 53a-55. After a trial to the court, the defendant was convicted of the lesser included offense of manslaughter in the second degree. From this judgment the defendant appeals, claiming that the trial court erred in admitting evidence of prior acts of misconduct and pending charges. We find no error.

The trial court could reasonably have found the following facts. On December 21, 1982, from approximately 9:30 p.m., the defendant, his wife Donna Chauvin, her grandfather and the couple’s daughter Lisa Chauvin were all at their Bristol home. Sometime after 11 p.m., Lisa was awakened by what she described as furniture moving in her parents’ room. Although it was too dark to see details of the activity in the room, Lisa saw a struggle going on between her mother and father. She ran to the telephone in the kitchen and called the police. A short time later the defendant called to Lisa from his bedroom and told her that everything was fine and that Donna was asleep. Lisa then made a second call to the police cancelling the first call.

Approximately ten minutes later, the defendant came out of the bedroom and announced that Donna had drugged him and that she was lying on the floor. The defendant said he did not know if she was alive. He then told Lisa that he and Donna got into an argument and that he had strangled her. He repeated the story again to Lisa and later to several police officers. The defendant prevented Lisa from calling an ambulance for a short time, but she eventually was able to make the call. By the time the emergency medical personnel arrived at the house, Donna had no effective brain function. She died from her injuries on January 17, 1983.

The defendant did not testify at trial, nor did he assert that he had not been the cause of his wife’s death. Rather, he relied on a defense of mental disease or defect. Much of the defendant’s case consisted of psychiatric testimony concerning his mental illness. Michael Sheard and Walter Borden, both psychiatrists, testified that, at the time of the murder, the defendant was suffering from mental disease or defect. Sheard opined that the defendant was unable to conform his conduct to the law. Borden expressed the opinion that the defendant lacked substantial capacity either to appreciate the nature and wrongfulness of his conduct or to conform his conduct to the law. Both experts admitted that they had relied primarily on conversations with the defendant to form their opinions. When alerted to factual errors in the defendant’s rendition of events, Sheard stated that “it certainly makes me have more doubt about the situation.” He acknowledged that if the defendant’s assertions were not true, he could not form the opinions already stated. Borden also admitted that his diagnosis required a truthful account of events from the defendant. He stated that it would be important to his diagnosis “if there was a substantial indication of antisocial tendencies.” In his conversations with Borden, the defendant had denied any “antisocial behavior” other than one arrest several years earlier.

In rebuttal, the state offered one expert who was unable to state conclusively whether or not the defendant was able to appreciate the wrongfulness of his behavior. That expert also testified that the contradictory remarks made by the defendant led him to doubt the defendant’s credibility.

The defendant claims that the trial court erred in admitting evidence that he had committed prior acts of misconduct and that there were larceny charges pending against him. The defendant, however, did not except to the testimony concerning the prior acts of misconduct but only to that concerning the pending larceny charges. This court generally will not review any rulings on evidence where no exception was taken by counsel. State v. Baker, 182 Conn. 52, 56, 437 A.2d 843 (1980); State v. Jackson, 3 Conn. App. 132, 134-35, 485 A.2d 934 (1985). Only the most exceptional circumstances will save a claim from the fatal consequences of counsel’s failure to make a timely exception. State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). This case does not present such circumstances. See State v. Smith, 198 Conn. 147, 156, 502 A.2d 874 (1985) (rule concerning admission of evidence of other crimes is a rule of evidence, not of constitutional law). Thus, we decline to consider this claim.

The testimony that is the subject of the remaining claim was given by Alan Medvec, former brother-in-law of the defendant. On direct examination, the prosecutor asked Medvec if he was aware that the defendant had larceny charges pending against him. Over objection from defense counsel, Medvec answered affirmatively and was allowed to elaborate as to his knowledge of the circumstances surrounding those allegations.

The defendant asserts that Medvec’s testimony was improperly admitted for two reasons: it was prejudicial, thereby depriving him of a fair trial and there was no proper foundation laid for its introduction. The defendant has referred to no legal authority for the latter claim, however. Bare assertions of error without citation to legal authority may constitute an abandonment of a claim. State v. Anderson, 6 Conn. App. 15, 23 n.7, 502 A.2d 446 (1986). We therefore decline to address the issue of whether there was a proper foundation for the testimony.

The defendant’s other reason for his assertion that the trial court erred in admitting Medvec’s testimony concerning the larceny charges pending against him is that it was prejudicial. “Evidence of other misconduct, although not ordinarily admissible to prove the bad character or criminal tendencies of the accused, may be allowed for the purpose of proving many different things, such as intent, identity, malice, motive or a system of criminal activity.” State v. Ibraimov, 187 Conn. 348, 352, 446 A.2d 382 (1982). In State v. Carter, 198 Conn. 386, 393, 503 A.2d 576 (1986), our Supreme Court recently acknowledged another exception to the prohibition on the use of evidence of prior crimes: where insanity is raised as a defense. In that case, the court held that “[ojnce the insanity defense is asserted by a defendant the state is entitled to use relevant evidence of prior crimes to rebut it . . . subject to the constraint that the probative value of the evidence must outweigh its prejudicial effect.” Id.

Here, the probative value of the evidence was very-high. Both of the defendant’s experts, Borden and Sheard, testified that they relied on the accuracy of the history the defendant provided to them to reach their conclusions as to his sanity, a central issue in this case. The state introduced evidence of the larceny charges to show that the ground relied on by the psychiatrists, that is the honesty of the defendant, was not firm. Thus, the probative value of the evidence with respect to the psychiatric diagnosis is clear. See id.

The possibility of prejudice from admission of the challenged evidence was minimal. The pending charges, larceny, were not so similar to the crime for which the defendant was being tried, murder, as to raise a realistic danger that the trier “may use the information not for the limited purpose of its admission, but to establish the guilt of the perpetrator of the crime by assuming that ‘if he did it before, he probably did so this time.’ Gordon v. United States, 383 F.2d 936, 940 (D.C. Cir. 1967), cert. denied, 390 U.S. 1029, 88 S. Ct. 1421, 20 L. Ed. 2d 287 (1968).” State v. Carter, supra, 394. Additionally, the analysis used by our Supreme Court in Carter, that because “the focus of the defendant’s case was clearly his insanity at the time of the murder, [i]t is difficult to perceive . . . how the evidence of the [larceny] was so prejudicial as to outweigh its probative value on the issue of insanity”; id; is equally applicable here.

The probative value of the pending larceny charge in this case is clear and obvious: the credibility of the defendant was the key factor underlying the opinions of the psychiatrists who testified. Those opinions could not have been made with such certainty had there been more evidence of “anti-social behavior.” In light of that probative value and the small possibility of prejudice, we conclude that the trial court did not abuse its discretion in admitting the testimony.

There is no error.

In this opinion the other judges concurred.

       In his preliminary statement of issues, the defendant makes other claims of error. As he failed to brief or argue them, however, they are deemed to be abandoned. See State v. Samaha, 180 Conn. 565, 565 n.1, 430 A.2d 1290 (1980).

       General Statutes (Rev. to 1981) § 53a-13 provides in part: “In any prosecution for an offense, a defendant may be found guilty but not criminally responsible if, at the time of the proscribed conduct, he lacked substantial capacity, as a result of mental disease or defect, either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.”

       Donald Grayson, a psychiatrist, the state’s expert, testified that “[i]f [the defendant] was, indeed, drugged or delirious, as he indicated, it would be my opinion that he was probably unable to appreciate the wrongfulness of his behavior or to conform his behavior to the expectations of the law. If, however, he were not delirious, I would have to assume that he could conform his behavior to the expectations of the law.”

       We note that the defendant does not claim that the evidence that he committed the larcenies was insufficient to support a jury finding that he had in fact committed the crimes. See State v. Wilson, 199 Conn. 417, 449, 507 A.2d 1367 (1986) (before evidence of prior crimes can have any probative value, there must be a preliminary showing sufficient to support a jury finding that the defendant committed the prior crimes).


source: Caselaw Access Project

author: Spallone, J.

license: Public Domain

text:
    State of Connecticut v. Alfred J. Barkal
    (4403)
    Dupont, C. J., Spallone and Bieluch, Js.
    Argued May 9
    decision released July 29, 1986

      Vincent W. Oswecki, Jr., for the appellant (defendant).

      Patrick A. Cosgrove, assistant state’s attorney, for the appellee (state).
   Spallone, J.

The defendant takes this appeal from the judgment rendered after he was convicted by the court of two counts of sexual assault in the second degree, a violation of General Statutes § 53a-71 (a) (1), and two counts of risk of injury to a minor, a violation of General Statutes § 53-21.

The defendant claims that the trial court (1) found against the weight of the evidence that the defendant was guilty beyond a reasonable doubt on all four counts, (2) found the defendant guilty on the basis of insufficient evidence, (3) erroneously denied the defendant’s motion for a psychiatric examination of the victim, (4) erroneously found the minor victim competent to testify, and (5) erroneously excluded testimony by the defendant’s mother of an alleged extortion attempt.

The defendant, an adult male, runs a nursery business and a golf driving range on his family farm located in Windsor. The victim, a twelve year old boy, and his older brother were spending the fourth of July weekend on the farm. The trial court found that while the victim and the defendant were alone in a room in the farm house, the defendant, at about 1 a.m. on July 4, 1984, performed fellatio upon the victim. Further, the court found that shortly after 2 p.m., on the same day, the defendant again performed fellatio upon the victim. The trial court, having found that the acts were committed, concluded that all the elements constituting the crimes of sexual assault in the second degree and risk of injury to a minor had been met in each of the separate incidents and found the defendant guilty as charged. The court found the minor victim to be a “refreshingly honest boy” and doubted the credibility of certain witnesses for the defense. The court viewed the premises and concluded that “ample time and [an] area protected from view existed for the [second] criminal act to occur.”

The defendant’s first and second claims of error essentially raise the same issue, i.e., the sufficiency of the evidence to support a finding of guilty on all four counts of the information. We have the benefit of the trial court’s memorandum of decision in which the court has provided express and explicit findings of fact that serve not only to support its legal conclusions but also to negate the defendant’s first two claims of error. Our review of the evidence in this case fully supports the findings made by the court. The test to be applied in determining whether the evidence is sufficient to sustain a finding of guilty by a trial court has been enunciated by our Supreme Court when it stated: “ ‘ “ ‘[T]he issue is whether the [trier] could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt. . . . ’ ” ’ ” State v. Scielzo, 190 Conn. 191, 196, 460 A.2d 951 (1983), quoting State v. Haddad, 189 Conn. 383, 387, 456 A.2d 316 (1983). The evidence which is presented at the trial must be given a construction most favorable to sustaining the finding of the trial court as the finder of fact. Id. We hold that the trial court had before it ample evidence to find the defendant guilty on all four counts of the information.

The defendant’s third and fourth claims of error are also without merit. The trial court was not bound to order a mental examination to determine the victim’s competency to testify merely because counsel for the defense requested that it be done, nor did the court improperly exercise its discretion in finding that the minor victim was competent to testify. The competency of a witness is a matter peculiarly within the discretion of the trial court and its ruling will be disturbed only in a clear case of abuse or of some error in law. State v. Manning, 162 Conn. 112, 115-16, 291 A.2d 750 (1971); State v. Orlando, 115 Conn. 672, 675, 163 A. 256 (1932); see State v. Vars, 154 Conn. 255, 268, 224 A.2d 744 (1966). The testimonial capacity of a child witness is a matter for the court to determine upon inquiry. State v. Segeberg, 131 Conn. 546, 547, 41 A.2d 101 (1945). In determining the competency of a minor to testify, the trial court must consider the witness’ (1) maturity to receive correct impressions by his senses, (2) ability to recollect and narrate events intelligently, (3) ability to appreciate the moral duty to tell the truth, and (4) ability to comprehend the facts sought to be developed. State v. Brigandi, 186 Conn. 521, 534-35, 442 A.2d 927 (1982).

Our analysis of the record discloses that the trial court properly applied these principles when it ruled on the minor witness’ competency to testify. Not only did the trial court conduct an examination of the witness, it allowed the defendant to question the witness relative to his competency. There has been no showing that the court abused its discretion in denying the defendant’s request that the victim undergo a psychiatric examination or in its finding that the victim was competent to testify.

The defendant’s final claim of error relating to the trial court’s evidentiary ruling also fails. In an effort to establish a motive for the victim to lie, the defendant offered the testimony of his mother concerning an alleged extortion attempt relating to the sexual assault charges. The testimony was ruled to be hearsay and was excluded. Even if it were error to exclude the testimony because it was not offered for the truth of the matters contained therein, but was offered in an effort to establish motive, such exclusion would be harmless error. The case was being tried to the court. The court in its memorandum of decision found the child witness to be highly credible. There was no connection established in the evidence between the child and the third party whose statement was offered to indicate that the child would fabricate the story for the benefit of the third party. Such a scenario is speculation at its worst. Trials deal with facts and with inferences logically and rationally drawn therefrom. The quest for truth is ill served when the court is asked to engage in speculation.

We find no error in this case, particularly when we are presented, as we have been here, with the trial court’s meticulously drawn memorandum of decision which is completely supported by the evidence and is in accordance with the law.

There is no error.

In this opinion the other judges concurred.


author: Borden, J.

text:
    State of Connecticut v. Rosario Camerone
    (3500)
    Argued May 7
    decision released July 29, 1986

      Kent Drager, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      Susan C. Marks, deputy assistant state’s attorney, with whom, on the brief, were Arnold Markle, state’s attorney, Thomas O’Keefe, assistant state’s attorney, and Barbara Farrell, law student intern, for the appellee (state).
   Borden, J.

The defendant appeals from the judgment of his conviction, after a jury trial, of three counts of aiding the sale of narcotics in violation of General Statutes §§ 21a-277 (a) and 53a-8. The dispositive issue is whether it was error for the trial judge, during cross-examination of the state’s key witness, to comment on facts within his personal knowledge and outside the record as to whether a witness had been offered a “deal” in exchange for his testimony, and on whether the prosecutor had the ability to offer the witness promises in exchange for his testimony. We find error.

Because the defendant did not properly raise this claim in the trial court, he seeks review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). The determinative issue in granting an Evans review is whether “the record adequately supports a claim that [the defendant] has clearly been deprived of a fundamental constitutional right and a fair trial.” State v. Liebowitz, 7 Conn. App. 403, 404, 509 A.2d 43 (1986), citing State v. Evans, supra, 70. The defendant’s claim of a violation of a constellation of constitutional rights does raise an issue of fundamental constitutional dimension. For purposes of an Evans review, “it is also necessary that the record ‘adequately supports [the] claim.’ ” (Emphasis in original.) State v. Liebowitz, supra, 405. The record in this case adequately supports the defendant’s constitutional claim.

The state’s case against the defendant was that he supplied cocaine to William Deitch, who sold it to undercover officer Gary Hunt of the New Haven police department. Deitch testified that on May 5, May 12 and May 26,1983, he sold cocaine to Hunt, and that on each of these occasions the defendant supplied the cocaine to him. Hunt testified that the three transactions took place. He did not, however, have any personal knowledge that the defendant supplied the cocaine to Deitch.

During the period of the transactions, both the defendant and Deitch were under surveillance by members of the New Haven police department. Detective Sergeant Carl Giannotti, a member of the surveillance team, testified that he observed the defendant and Deitch meeting prior to each drug transaction. None of the surveillance officers, however, observed an exchange of drugs or money between the defendant and Deitch.

The defendant testified on his own behalf and denied supplying cocaine or any other drug to Deitch. He testified that he had purchased an automobile from Deitch and that Deitch had been dunning him to pay the money still owed on the car. While the defendant did not recall meeting with Deitch on May 5 or May 12,1983, he did remember meeting with him on May 26, 1983, to discuss the money still owed on the car. Thus, the only evidence presented at trial which directly linked the defendant with the three drug transactions was Deitch’s testimony that the defendant was his supplier on each of the three occasions. Consequently, the credibility of Deitch was crucial.

Deitch testified on direct examination that he had pleaded guilty to certain unspecified charges arising out of the narcotics transactions, that he was awaiting sentencing on these charges, that no promises had been made to him other than that his testimony would be taken into consideration by the sentencing judge, and that he was testifying in the hope that it would help him. On cross-examination, the defendant sought to impeach Deitch’s credibility based on his motive and interest in testifying against the defendant, namely, that his testimony was motivated by a desire for leniency in connection with the charges pending against him. Deitch revealed that he had pleaded guilty to several charges of selling cocaine and possession of marihuana with intent to sell, and that he was facing a potential maximum sentence of sixty-seven years. Thereafter, the following colloquy occurred between the defense counsel and Deitch:

“Q. And I believe the prosecution — I’m not sure whether the prosecution stated it or whether you told the prosecution. You told the prosecution that you were aware that if you testified satisfactorily to the prosecution in this trial, that it would affect your sentence.

A. No promises were made to me.

Q. No promises, but did they say it’s a possibility?

A. No promises were made to me.

Q. No promises?

A. Nothing at all.

Q. Then why are you here?”

At this point, the state objected to the defense counsel’s characterization of Deitch’s testimony, stating: “I object to this line of questioning. That is completely his representation of what the agreement is for this man’s testimony. I have no control over his sentence. It doesn’t have to satisfy me at all.”

After agreeing that the question of the defense counsel was “somewhat of a misrepresentation,” the trial court stated the following: “I think we ought to clarify it for the purpose of the jury. The state has no control over the sentence of this individual. Indeed, I took the plea and I am the sentencing judge. The state has no control over any of the sentences, nor is there any deal for the sentence. The sentence is completely discretionary and up to myself.” (Emphasis added.) Shortly thereafter, the court stated, “[t]he point I was making for the record and for the clarification of the jury is that the State can’t promise [the witness] anything. The state cannot make it any better for him.” (Emphasis added.)

The defendant claims that the trial court, by its statements, violated a cluster of interconnected fundamental rights, principally his state and federal right to confront the witnesses against him, and his due process right to a fair trial. We agree.

I

The defendant claims that his right of confrontation was violated because the trial court’s comments effectively foreclosed three areas of potential cross-examination of the state’s key witness. First, the defendant claims that the statement that there was no deal between the state and the witness as to his pending sentence, based on the trial judge’s personal knowledge outside the record, had the effect of unduly restricting the defendant’s cross-examination of the witness in two areas of motive testimony: whether in fact a deal had been made; and whether the witness believed that, by testifying, he would be benefitted. Second, the defendant claims that the court’s statement that the prosecution could not promise the witness anything with respect to his upcoming sentencing was legally incorrect and foreclosed defense inquiry into whether the prosecution had made any assurances in this regard. We conclude that the defendant’s right of confrontation was not violated with regard to the first two areas of motive testimony. We agree with the defendant, however, that his right of confrontation was violated by the trial court’s comments regarding whether the prosecution could promise him anything about his sentence.

“ ‘Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted. . . . The sixth amendment to the constitution guarantees the right of an accused in a criminal prosecution “to be confronted with the witnesses against him.” ... To comport with the constitutional standards embodied in the confrontation clause the defendant in exercising his right of cross-examination must be allowed to “expose to the jury the facts from which the jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witnesses.” Davis v. Alaska, 415 U.S. 308, 318, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974).’ ” (Citations omitted.) State v. Privitera, 1 Conn. App. 709, 711-12, 476 A.2d 605 (1984), quoting State v. Wilson, 188 Conn. 715, 720, 453 A.2d 765 (1982).

Cross-examination as to bias or motive is constitutionally protected. State v. Cosby, 6 Conn. App. 164, 167, 504 A.2d 1071 (1986). In a case where the only direct evidence linking the defendant with criminal activity is the testimony of an accomplice who has already pleaded guilty to charges and is awaiting sentencing, it is especially important that a defendant be permitted to search for an agreement between the state and the witness. Under these circumstances “it might be assumed that the [witness’] course would be such as would best serve his interest in the trouble in which he found himself.” State v. Santello, 120 Conn. 486, 492, 181 A. 335 (1935). Even in the absence of an actual deal, such a witness may be motivated to testify by a desire to please the prosecution in an attempt to procure lenient treatment. United States v. Mayer, 556 F.2d 245, 248-49 (5th Cir. 1977). Thus, whether or not an actual agreement has been worked out, a witness may be cross-examined to show a belief or expectation of favorable treatment by the state.

The trial court’s comments, when examined in the context of the extensive cross-examination of Deitch, did not foreclose inquiry into these two areas. Our review of the entire cross-examination discloses that the defendant was afforded an adequate opportunity to inquire into the fact of whether a deal had been arranged with respect to Deitch’s sentence, and into Deitch’s motive for testifying. The defendant questioned Deitch on several occasions, both before and after the trial court’s comments, on whether he had received any promises or been offered any deals. He also questioned Deitch on his motive for testifying. On at least two occasions, the defendant elicited from Deitch the statement that he hoped and believed that his testimony might help him at sentencing. Additionally, the court in its charge instructed the jury that they should consider the witness’ motive for testifying in assessing his credibility. Thus, this aspect of the defendant’s claim that he was not permitted cross-examination sufficient to satisfy the sixth amendment fails.

The defendant was, however, effectively foreclosed from inquiring into the witness’ motive for testifying based on a prosecutorial, as opposed to a judicial, promise or assurance. This foreclosure arose from the court’s statement that the prosecution could not promise anything to the witness. As a statement of law, albeit incorrect; see text infra; the defendant could only perceive this as a ruling forbidding inquiry into this area. The court’s statement was correct in the sense that the state cannot promise a witness a specific sentence in exchange for his testimony. The state can, however, make promises or assurances with respect to the position it will take at sentencing. Practice Book §§ 921, 922; see Szarwak v. Warden, 167 Conn. 10, 18, 355 A.2d 49 (1974). For example, the prosecution can promise to recommend a lenient sentence in exchange for a witness’ testimony against a defendant. It can promise that it will, moreover, try to persuade the court to accept its recommendation of leniency, so that future similar promises to other persons will carry some credibility with them. The defendant was entitled to ask Deitch whether his hope for leniency from the court had been bolstered by assurances from the state that it would attempt to persuade the court to realize his hope. Because the defendant was effectively precluded from cross-examination in this area, and the jury may have thus been deprived of facts from which it could appropriately draw inferences concerning Deitch’s reliability, we conclude that the defendant was denied his constitutional right of confrontation.

II

The defendant also claims that the trial court’s comments violated his due process right to a fair trial. There are two interrelated aspects to this claim. First, he claims that the trial court’s comment before the jury on a material fact, adverse to the defendant and based on the judge’s personal knowledge, crossed the line of judicially permissible conduct, and had the unintended effect of improperly bolstering Deitch’s credibility by corroborating his testimony. Closely related to this is the defendant’s claim that the statement had the effect of improperly restricting the jury’s consideration of Deitch’s credibility, thus undermining the defendant’s constitutional right to have all facts and issues of credibility determined by the jury. We agree.

Due process requires that “there should be no questioning that appears to reject a defendant’s credibility and implies judicial support of a prosecution witness’ testimony. ... 1 “The influence of the trial judge on the jury is necessarily and properly of great weight,” Starry. United States, 153 U.S. 614, 626 [14 S. Ct. 919, 38 L. Ed. 841 (1894)], and jurors are ever watchful of the words that fall from him.’ See Bollenbach v. United States, 326 U.S. 607, 612, 66 S. Ct. 402, 90 L. Ed. 350 (1946). These admonitions and cautions ‘are prompted by the truism that a jury has a natural tendency to look to the trial judge for guidance, and may find it even where it is not intended.’ ” State v. Fernandez, 198 Conn. 1, 12, 501 A.2d 1195 (1985).

In State v. Fernandez, supra, the court held that the defendant was deprived of his right to a fair trial by the trial judge’s “partisan” cross-examination of the only witness for the defense concerning his statement to the judge on a plea of guilty canvass. The court noted that whether a defendant’s right to a fair trial has been violated must be determined on a “case by case basis.” Id., 15. The facts found significant in Fernandez are remarkably similar to the present case. The key witness who was cross-examined by the trial judge during the state’s cross-examination of him was a joint participant in the criminal activities for which the defendant was on trial. He had already pleaded guilty to charges arising from the crimes and was awaiting sentencing. The witness’ credibility was a key issue in the case because if the jury chose to believe him, they could not consistently convict the defendant of the crimes charged. The judge who took the witness’ guflty plea was the same judge who was presiding at the defendant’s trial. The trial judge referred to the earlier plea session with the witness, albeit not on the basis of personal knowledge but rather by cross-examining him based on a copy of the plea transcript.

The court in Fernandez found error in the defendant’s convictions. The court noted that the credibility of the witness was directly implicated by the trial court’s conduct, and that the defense theory of the case, dependent as it was on the jury’s acceptance of the witness’ testimony, “could not escape the tremor emanating from that examination by the trial judge.” Id., 15.

It is the combination of the jury’s tendency to view the trial judge as its guiding light and the trial judge’s conduct which may have been interpreted by the jury as an evaluation of Deitch’s credibility, that created the error in this situation. By stating to the jury that he was the judge who took the witness’ guilty plea and, further, based on his own personal knowledge, that there was in fact no deal made between the witness and prosecution with respect to the witness’ testimony, the trial judge, as the state concedes, in effect bolstered the credibility of Deitch by judicially corroborating facts to which Deitch had already testified. It is likely that this inadvertently conveyed to the jury an impression that the judge was of the opinion that Deitch was telling the truth in his defense against the defendant’s attack on his credibility. This seriously undermined the defendant’s theory of defense which was, very simply, that Deitch was lying when he implicated the defendant as his supplier of cocaine and that he was doing so in order to help himself in his own pending cases.

The defendant also claims that the trial court’s statements transcended the bounds of legitimate comment so as effectively to preclude the independent determination of questions of fact and credibility which the defendant is entitled to have the jury make. More specifically, the defendant argues that the trial court, by its comments, took the determination of the witness’ credibility from the jury on the issues of whether in fact there was a deal for the witness’ testimony and whether the state had made any promises to the witness. We agree.

The jurors are the “sole triers of fact and credibility.” Davis v. Alaska, supra, 318. “[Ljitigants have a constitutional right to have issues of fact decided by the jury and not by the court.” State v. Hines, 187 Conn. 199, 210, 445 A.2d 314 (1982), quoting Ardoline v. Keegan, 140 Conn. 552, 555, 102 A.2d 352 (1954). “They are free to reject even uncontradicted testimony, if they do not find it credible . . . particularly in a criminal case.” State v. Dudla, 190 Conn. 1, 7, 458 A.2d 682 (1983).

In State v. Santello, supra, a case involving facts very close to those in this case, our Supreme Court was faced with a similar claim. The defendant was charged with and convicted of murder. The evidence at trial revealed that two masked and armed men entered a club and, after a scuffle ensued, a person was shot and killed. The defendant denied any participation in the incident, claiming to have been at home when it took place. The state’s key witness, Cosmo Scarpello, was a participant in the crime and testified that the defendant was present during the incident. Proof of the defendant’s identity as a participant depended entirely on Scarpello’s testimony. Id., 492. The defense counsel placed great reliance upon an intended claim that Scarpello was motivated to testify as he did by a hope or promise of leniency or clemency as to his own participation. Id., 492-93. The defense counsel repeatedly cross-examined Scarpello as to whether he had received promises of immunity or clemency and, upon an attempt to read from a newspaper statement containing information contradicting the witness’ negative responses, the state’s attorney made the following objection: “Now I object to any reading from the Nor-walk newspapers, Your Honor. If there is any privilege of exemption to be given to this man it comes from me, not from any reporter of the Norwalk newspapers. I can only say that no such promise has been made. ” (Emphasis added.) Id., 489-90.

The court held that this statement by counsel, not under oath, of a material fact pertinent to the issues, unsupported by the evidence, and prejudicial to the defendant without a cautionary instruction, constituted reversible error. Id., 490. The court noted that, despite Scarpello’s testimony that no deals had been made, “it yet remained open to the defendant to claim that in these denials Scarpello was not worthy of credit and that in testifying as he did he was actuated by some such inducement.” Id., 492-93. The court noted further that the effect on the jury of a statement by the state’s attorney, because of the prestige and confidence pertaining to his office, gave the statement “a finality which decisively put an end to attack upon the credit of [the state’s key witness] based upon any promise or assurance of exemption from prosecution, or similar concession.” Id., 493. In effect, the determination of the witness’ credibility with respect to his testimony on this fact was taken from the jury by the state’s attorney’s comment.

When a statement corroborating a witness’ testimony comes from the trial judge, as it did in this case, the influence on the jury is even greater. “ ‘The respectability and standing of [the trial judge] only serve to enhance the peril.’ ” (Citations omitted.) Id.; see State v. Fernandez, supra. A juror will be inclined to take the judicially corroborated fact as conclusively true. Since the defendant was entitled to have the jury determine Deitch’s credibility and to disbelieve his statement that there was no deal; State v. Santello, supra; the trial court’s flat assertion corroborating the testimony violated the defendant’s right to a fair trial.

Ill

The state argues that if error is found, it is nonetheless harmless. Our cases hold that when error is of constitutional dimension it is reversible unless the state proves the error harmless beyond a reasonable doubt. State v. Mebane, 8 Conn. App. 63, 69, 511 A.2d 359 (1986). In this case, the state has not sustained its burden. This is not a situation where “the evidence against the accused is so overwhelming that we can conclude as a matter of law that the jury’s verdict was not influenced [by the trial court’s comment].” State v. Cohane, 193 Conn. 474, 485, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984). On the contrary, the only direct evidence linking the defendant to the criminal activities with which he was charged was the testimony of the state’s key witness, and it is precisely this testimony which was supported by the trial court’s statements.

The statements had a multifaceted impact on the jury’s assessment of Deitch’s credibility. On the one hand, the jury was prevented from hearing evidence which they had a right to hear concerning his motive to testify which might have impacted on their assessment of his credibility. On the other hand, they were presented with a statement by the trial court based on personal knowledge which corroborated his testimony and which they should not properly have considered in evaluating his credibility. Moreover, they were directed by the court, during both cross-examination of the witness and during the jury charge, to find that there was in fact no deal worked out for the testimony of the witness, thus bolstering his credibility. In this case, we are not persuaded beyond a reasonable doubt that the standard instruction to the jury that they are the sole judges of credibility rendered the error harmless.

Our resolution of this claim of the defendant is dis-positive. Although he raises other claims of error of an evidentiary nature, it is not clear that they 'will recur in the new trial. We therefore decline to review them.

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

In this opinion the other judges concurred.

       Although the defendant relies on both the sixth and fourteenth amendments to the United States constitution and article first, §§ 8 and 19, of the Connecticut constitution, he offers no separate analysis of the Connecticut constitution, as a basis for disparate treatment between the two. We see no reason to undertake such an analysis. See State v. Cosby, 6 Conn. App. 164, 166 n.1, 504 A.2d 1071 (1986).

       The defendant claims that an aspect of the right to trial by jury is the right to have issues of fact and credibility determined by the jury. This right, however, has been viewed as a component of the right to a fair trial; State v. Hines, 187 Conn. 199, 209, 445 A.2d 314 (1982); and thus does not in this case require separate analysis under the rubric of the right to trial by jury.

       The defendant in his brief concedes, and we agree, that if the trial judge had confined his statements to the initial legal point that it is the judge and not the prosecutor who determines an individual’s sentence, there would be no error. It is permissible to inform the jury that the judge, not the state’s attorney, imposes the sentence; otherwise the jury might think that a particular suggested deal between the prosecutor and witness was even better than it was. United States v. Rosson, 441 F.2d 242, 244 (5th Cir. 1971); see State v. Mendill, 141 Conn. 360, 363, 106 A.2d 178 (1954).

       The court charged as follows: “If you feel that he may, in his own mind, be looking for or hoping for some favors in the handling of his own situation and, therefore, his testimony may be colored because of such thoughts, then, of course, you will give such weight to his testimony or no weight to it at all as may appear appropriate to you under all the circumstances.”


text:
    State of Connecticut v. Andreas Van Der Werff
    (3221)
    Borden, Spallone and Bieluch, Js.

      Argued May 9
    decision released July 29, 1986

      Gerald M. Klein, for the appellant (defendant).

      Ian R. McMillan, special assistant state’s attorney, with whom, on the brief, were John J. Kelly, chief state’s attorney, and James G. Clark, deputy assistant state’s attorney, for the appellee (state).
   Borden, J.

The defendant appeals from the judgment of conviction of possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (a). This conviction was based on his conditional plea of nolo contendere, pursuant to General Statutes § 54-94a, following the denial of his motion to suppress evidence seized from his suitcase at Bradley International Airport in Windsor Locks. The principal issue is whether the trial court erred in finding that the facts of this case are distinguishable from the facts in Florida v. Royer, 460 U.S. 491, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983), in which the Supreme Court held that a similar airport search was tainted. We find no error.

In a thorough and analytical memorandum of decision, the trial court found the following facts: The defendant was returning to his home in Hartford from a vacation in Florida. He walked up to the Delta Airlines ticket terminal in the Fort LauderdaleHollywood International Airport approximately five minutes before the scheduled departure time of flight 560 to Bradley Airport. He paid with cash for a one way ticket. He glanced about from side to side and appeared nervous as he asked the attendant if he could carry his single piece of luggage onto the plane. When told that he could not, he repeated his request. He finally checked his suitcase and watched anxiously as it was conveyed to the airplane.

Deputy Sheriff Daniel DeCoursey, of the sheriffs department of Broward County, Florida, believed that the defendant’s nervous mannerisms matched the so-called “drug courier profile,” a group of characteristics developed by law enforcement agencies and used to identify persons who illegally transport narcotics along the nation’s airways. The defendant, unaware that he had aroused suspicion, boarded the plane. DeCoursey telephoned to inform the Connecticut state police that he believed that the defendant possessed illegal narcotics.

In response to DeCoursey’s call, two undercover Connecticut state police officers who were assigned to Bradley Airport, Detective David Hutchinson and Sergeant William Burke, awaited the arrival of the defendant’s flight. They saw him leave the plane and walk 300 yards from the jetway to the main concourse. As he walked, the defendant’s constant glancing over his shoulder caused him to stand out from the other passengers. His extreme nervousness continued as he waited at the baggage terminal. A narcotics detection dog positioned along an interior baggage conveyor registered a weak response to the defendant’s suitcase. The dog’s handler then radioed this response to Hutchinson and Burke.

The defendant picked up his suitcase and began to walk in a direction away from the public exits. Hutchinson and Burke, both dressed in plain clothes, approached him. Hutchinson asked to see the defendant’s driver’s license and ticket receipt and, noticing that the defendant’s hands were trembling and that he was sweating profusely, asked him why he was nervous. The defendant answered that he was nervous because of his unexpected confrontation by two state policemen. He handed his license and receipt to Hutchinson. Hutchinson indicated that he would like to search the suitcase, and asked the defendant if he would mind moving to a location out of public view. There was no indication that the officers would have insisted on retaining the defendant had the defendant been unwilling to leave the baggage area. Instead, the defendant, possibly to avoid embarrassment and preferring to continue the encounter, if at all, in a more private location, replied that he would not mind.

With Hutchinson in possession of the defendant’s license and ticket receipt and the defendant carrying the suitcase, the three men walked approximately twenty feet to a room secured by a punch-type cipher lock. Hutchinson punched in the combination and opened the door to a small room without chairs. They entered the room. Hutchinson returned the defendant’s license and receipt to him. Hutchinson had had possession of the license and receipt for approximately two minutes. Although the room was not locked from the inside, the defendant believed that it was. The defendant stood near a wall with his suitcase, next to Hutchinson, while Burke stood back. Neither officer touched the defendant or exhibited a weapon. After a brief conversation, Hutchinson asked the defendant if he could search the suitcase. The defendant consented orally. Up to the time when he consented, he had been in the room for three minutes. Hutchinson reached into the suitcase and found an envelope containing white powder. He then placed the defendant under arrest.

The entire encounter between the police officers and the defendant lasted no longer than five minutes. Neither police officer displayed a weapon or physically contacted the defendant. Neither attempted to intimidate him, either physically or verbally, by tone of voice or general demeanor. Both were courteous and asked, but did not demand, that the defendant comply with their request. Neither advised the defendant that he might refuse their request. There was no evidence of coercion.

On the basis of these facts, the court concluded that the defendant was “seized,” within the meaning of the fourth amendment, near the baggage terminal shortly before being taken to the room, and that he was not free to leave thereafter. The court also concluded that the seizure was based on reasonable and articulable suspicion, that the scope of the seizure was permissible, and that the defendant’s consent to search the suitcase was voluntarily given. Accordingly, the court denied the motion to suppress. This appeal followed.

I

The defendant first gives a glance at the argument that the initial seizure was unlawful, but he does not seriously press this claim in his brief. We agree with the state that the trial court did not err in concluding that the initial seizure of the defendant was reasonable. The degree of the match between his behavior in the Florida airport and the drug courier profile; see footnote 2, supra; was further corroborated by his nervous behavior after leaving the plane at Bradley Airport, the weak but not exculpatory response of the narcotics trained dog, and the defendant’s additional extreme nervousness upon being approached and questioned by Hutchinson and Burke. In the aggregate, these facts and observations were sufficient to give the police officers reasonable and articulable suspicion to stop the defendant. State v. Mitchell, 7 Conn. App. 46, 57-60, 507 A.2d 1017 (1986), rev’d in part, 204 Conn. 187, 527 A.2d 1168 (1987). Thus, the stop was justified at its inception. Id.

The defendant’s principal argument is that the scope of the stop exceeded its permissible limits and resulted in the functional equivalent of an arrest based on less than probable cause. In this regard, the defendant relies solely on Florida v. Royer, supra. We disagree. We conclude that the trial court was correct in reading Royer as distinguishable from the facts of this case.

In Royer, the defendant had aroused the suspicion of two narcotics agents in the Miami airport as he proceeded to board a plane, having checked his luggage. They approached him and asked to speak to him. Upon their request, but without his oral consent, Royer gave them his airline ticket and driver’s license. On the basis of certain discrepancies in these items and on observations of Royer’s increased nervousness, the officers identified themselves as narcotics investigators and told him that they suspected him of transporting narcotics. They did not return his ticket and identification, but asked him to accompany them to a small room approximately forty feet away. Without responding, Royer went with them to the room. Without his consent, one of the officers retrieved Royer’s two suitcases from the plane and returned them to the room. Royer was asked if he would consent to a search of the suitcases. He did not respond orally, but produced a key and unlocked one of the suitcases, and did not object to one of the detectives opening the other by force. Marihuana was found in both suitcases, and Royer was arrested. The entire episode took about fifteen minutes from the time the officers approached him to his arrest.

A plurality of the United States Supreme Court, (White, Marshall, Powell and Stevens, Js.), “agreefd] that had Royer voluntarily consented to the search of his luggage while he was justifiably being detained on reasonable suspicion, the products of the search would be admissible against him.” (Emphasis added.) Id., 502. The same plurality, however, held that, under the facts of that case, the permissible scope of an investigative stop had been exceeded. They ruled “that at the time Royer produced the key to his suitcase, the detention to which he was then subjected was a more serious intrusion on his personal liberty than is allowed on mere suspicion of criminal activity”; id., 502; and that “[a]s a practical matter, Royer was under arrest.” Id., 503. Therefore, because “Royer was being illegally detained when he consented to the search of his luggage . . . the consent was tainted by the illegality and was ineffective to justify the search.” Id., 507-508.

In a concurring opinion, Justice Powell “agree[d] with the plurality that as a practical matter [Royer] was then under arrest, and his surrender of the luggage key to the officers cannot be viewed as consensual.” Id., 509 (Powell, J., concurring). Justice Powell relied on the facts that, after accompanying “the officers to a more private place” and before surrendering the key to his luggage, “Royer then found himself in a small windowless room — described as a ‘large closet’ — alone with two officers who, without his consent, already had obtained possession of his checked luggage. In addition, they had retained his driver’s license and airline ticket.” (Emphasis added.) Id., 508.

Both the Royer plurality and Justice Powell agreed that each airport stop and search case must pivot on its own facts. “We do not suggest that there is a litmus-paper test for distinguishing a consensual encounter from a seizure or for determining when a seizure exceeds the bounds of an investigative stop. Even in the discrete category of airport encounters, there will be endless variations in the facts and circumstances, so much variation that it is unlikely that the courts can reduce to a sentence or a paragraph a rule that will provide unarguable answers to the question whether there has been an unreasonable search or seizure in violation of the Fourth Amendment.” Id., 506-507. “As the plurality opinion emphasizes, ante, at 506-507, the facts and circumstances of investigative stops necessarily vary.” Id., 508.

The Supreme Court has subsequently read the Royer case as turning on the facts that “government agents stopped the defendant in an airport, seized his luggage, and took him to a small room used for questioning, where a search of the luggage revealed narcotics. The court held that the defendant’s detention constituted an arrest. [Florida v. Royer, supra, 503 (plurality opinion), 509 (Powell, J., concurring), 509 (Brennan, J., concurring in the result)]. As in Dunaway [v. New York, 442 U.S. 200, 99 S. Ct. 2248, 60 L. Ed. 2d 824 (1979)] though, the focus was primarily on facts other than the duration of the defendant’s detention — particularly the fact that the police confined the defendant in a small airport room for questioning.” (Emphasis added.) United States v. Sharpe, 470 U.S. 675, 105 S. Ct. 1568, 1574, 84 L. Ed. 2d 605 (1985).

There are two critical factual distinctions between this case and Royer. First, in this case, the trial court found that the officers would not have insisted upon taking the defendant to the room had he been unwilling to leave the baggage area, that the defendant knew that a search of his luggage was contemplated before he had accompanied the officers to the room, that the defendant in order to avoid possible embarrassment preferred to continue the encounter in a more private place, and that the defendant agreed after two minutes of questioning to relocate to an area out of the public view. Thus, unlike Royer, in this case, it can not be fairly said of the defendant that the police officers “took him to a small room-for questioning”; United States v. Sharpe, supra (emphasis added); in the same sense in which Royer was taken to the room. Nor was this defendant “confined, in a small room”; id. (emphasis added); in the same sense that Royer was confined. This defendant was in the room by his own consent.

We are aware that the trial court in this case also found that the “defendant was seized near the baggage terminal shortly before being taken to the private room . . . . ” (Emphasis added.) This finding, however, which was made in the context of the identification of the point at which the defendant was “seized,” in constitutional parlance, must be read together with the later, more expansive findings of the trial court on the same issue. Those later findings are that “[t]here is no indication that the officers would have insisted had Van Der Werff been unwilling to leave the baggage area. Rather, it appears that Van Der Werff, possibly to avoid embarrassment, preferred to continue the encounter, if at all, in a more private location. The scope of this temporary detention was not impermissibly enlarged merely because the defendant agreed after two minutes of questioning to relocate twenty feet to an area out of the public view.” Thus, the gist of the trial court’s findings in this regard is that, unlike the defendant in Royer, who was not told that his luggage was to be searched when he was taken to the room and who gave no oral consent to the relocation to that room, the defendant in this case was told, before accompanying the police to the room, that they wished to search his luggage, and consented to having that done out of the public’s eye.

The second critical factual difference from Royer is that in this case the defendant retained possession of his suitcase until the moment that Hutchinson searched it. Indeed, the trial court’s factual findings do not even indicate that the defendant ever relinquished his hold on the suitcase. The findings were as follows: The defendant “stood near a wall with his suitcase, next to Hutchinson ...” “After some brief conversation Hutchinson asked if he could search the suitcase, and the defendant orally consented . . . .” “Hutchinson reached in and found a single envelope containing white powder.” Thus, unlike in the Royer case it cannot be said in this case that the defendant was with officers “who, without his consent had obtained possession of his checked luggage.” Florida v. Royer, supra, 508 (Powell, J., concurring). Nor can it be said of the defendant that the police “seized his luggage. ...” United States v. Sharpe, supra.

These two factual aspects sufficiently distinguish this case from Florida v. Royer, supra, on which the defendant relies. We agree with the trial court that the scope of the investigative stop was not impermissibly expanded by the consensual relocation of the defendant, who retained control of his luggage until the moment of the consent, for a distance of twenty feet from the baggage terminal to the private room. Thus, the defendant’s consent to the search was not tainted by an illegal detention.

II

This leaves for consideration the defendant’s final argument. He claims that, even if the initial stop was justified and its scope not impermissibly enlarged, there was insufficient evidence to support the court’s finding of a voluntary consent to the search of his suitcase. We disagree.

Whether a search was based on consent, which the state has the burden of establishing, requires a finding of voluntariness, as opposed to an acquiescence to lawful authority. State v. Cardona, 6 Conn. App. 124, 134, 504 A.2d 1061 (1986). The consent must be free and voluntary, which is a question of fact to be determined from the totality of the circumstances. Id. The ultimate question “is whether the will of the consenting individual was overborne, or whether the consent was his unconstrained choice.” State v. Cobbs, 7 Conn. App. 656, 659, 510 A.2d 213 (1986). The trial court’s finding must stand unless it is clearly erroneous. Id.

Here, the court found that the state met its burden of proof to establish that the defendant’s consent to search the suitcase was voluntary. Although he was not advised that he need not comply with the requests, and although knowledge of the right to refuse to consent is an important element in the voluntariness determination; Dotson v. Warden, 175 Conn. 614, 619, 402 A.2d 790 (1978); such advice is not a prerequisite to a voluntary consent. Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). In support of its finding of voluntariness, the court also found that both officers were in plain clothes. Neither displayed a weapon, made physical contact with the defendant or intimidated him in any way. Both were courteous and asked, but did not demand, that he comply with their requests. There was no coercion. We cannot conclude that the trial court’s finding of a voluntary consent to search was clearly erroneous.

There is no error.

In this opinion the other judges concurred.

       The defendant’s written plea of nolo contendere in the record does not indicate that it was made “conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure,” as required by General Statutes § 54-94a. The parties, however, have treated it as such a conditional plea, and we review it accordingly. The judgment file, moreover, incorrectly states that the defendant “said that he was guilty.” The judgment file should be corrected to recite the defendant’s nolo contendere plea.

       The drug courier profile is “an informally compiled abstract of characteristics thought typical of persons carrying illicit drugs.” United States v. Mendenhall, 446 U.S. 544, 547 n.1, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980).

       Although the defendant concedes that he did not raise a state constitutional claim in the trial court, and although he did not raise it in his initial brief in this court, in his reply brief he indicated that he would do so at oral argument. That effort was no more, however, than a passing reference to State v. Kimbro, 197 Conn. 219, 496 A.2d 498 (1985), for the proposition that we are free to interpret our own constitution differently from the United States constitution. We do not regard the defendant to have adequately raised and briefed a state constitutional claim. We therefore confine our discussion to the theory on which the case was tried and decided in the trial court, and briefed in this court. Travelers Ins. Co. v. Hendrickson, 1 Conn. App. 409, 411 n.3, 472 A.2d 356 (1984).

       Nowhere in his brief did the defendant challenge the evidentiary sufficiency of these critical factual findings. He first did so part way through his oral argument in this court, after opening his argument with the statement that he agreed with the findings of the trial court. We do not believe that such a belated attempt to raise such an important claim properly presents the issue to us. We therefore disregard this claim of the defendant, and take the factual findings of the trial court as expressed in its memorandum of decision and as briefed by the parties. “Care must be taken ... to examine . . . [the] findings of fact that the trial court actually made in its decision to deny the motion to suppress.” State v. Brown, 198 Conn. 348, 360, 503 A.2d 566 (1986) (Healey, J., dissenting).

       This consensual aspect of the relocation of the defendant also distinguishes this part of the case from our analysis in State v. Mitchell, 7 Conn. App. 46, 507 A.2d 1017 (1986), rev’d in part, 204 Conn. 187, 527 A.2d 1168 (1987). In Mitchell, we noted that “[Relocation of a temporarily detained suspect is permissible incident to an investigative stop if it does not make the stop unreasonably more intrusive. [United States v. Vanichromanee, 742 F.2d 340, 345 (7th Cir. 1984).] An important factor in evaluating such a relocation is whether it is to a more police-oriented institutional setting, such as a police station or interrogation room. Id.” State v. Mitchell, supra, 63. There, we were discussing a relocation of a seized suspect by the police without the suspect’s consent. In this case, the trial court found in effect that the defendant consented to the relocation to a more private place.


text:
    State of Connecticut v. Daniel H. Henderson
    (4205) (4206) (4207)
    Spallone, Daly and Bieluch, Js.
    Argued June 13
    decision released July 29, 1986

      John R. Williams, for the appellant (defendant).

      Bernadette Conway, special assistant state’s attorney, for the appellee (state).
   Spallone, J.

The defendant pleaded guilty to four criminal charges contained in three separate informations. A judgment of conviction was rendered in each case, and the defendant has filed a separate appeal from each judgment. Because the issues in each appeal are identical, we have ordered, suo motu, that the appeals be combined. Accordingly, this opinion is applicable to all three appeals.

On March 29,1985, the defendant was sentenced by the trial court following his pleas of guilty to reckless endangerment in the second degree in violation of General Statutes § 53a-64, larceny in the third degree in violation of General Statutes § 53a-124, forgery in the third degree in violation of General Statutes § 53a-140, and forgery in the second degree in violation of General Statutes § 53a-139. He was sentenced to a total effective term of three years, suspended after eighteen months, with three years probation thereafter.

On April 17,1985, new counsel for the defendant filed motions for a new trial and to correct an illegal sentence in each case. These were denied by the court after it disallowed the defendant’s request for an evidentiary hearing on the motions. On appeal, the defendant claims error in the court’s denial of his motions.

At the outset, two factors are immediately apparent. First, the motion for a new trial was untimely, having been filed far after the five days specified in Practice Book § 903. Second, both motions, no matter how they are couched, raise the claim of ineffective assistance of counsel.

We will not review the defendant’s claim of ineffective assistance of counsel. We heed our Supreme Court’s admonition that habeas corpus proceedings rather than direct appeals are best suited to test the performance of counsel, including those claims arguably supported by the record as well as those requiring an evidentiary hearing. State v. Leecan, 198 Conn. 517, 541, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986); State v. Colon, 8 Conn. App. 111, 112-13, 510 A.2d 1023 (1986); State v. Aspinall, 6 Conn. App. 546, 554-55, 506 A.2d 1063 (1986).

The defendant argues that the trial court’s failure to provide the defendant with an evidentiary hearing constitutes an abuse of the trial court’s discretion and that had the court conducted such a hearing, it would have satisfied the Leecan pronouncement that “all claims of ineffective assistance ... be evaluated by the same trier in the same proceeding.” We disagree.

Initially, we note that a trial court’s procedure in acting on motions is not a substitute for a habeas corpus proceeding. All matters concerned with the alleged illegal confinement of the petitioner in habeas corpus, including the conduct of the trial judge, are subjects of a habeas hearing.

In that the granting of a motion for a new trial is wholly discretionary; State v. Asherman, 193 Conn. 695, 735, 478 A.2d 227 (1984) cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985); the trial court’s ruling on a motion for a new trial should stand unless it is shown that the court abused its discretion. Kubeck v. Foremost Foods Co., 190 Conn. 667, 669-70, 461 A.2d 1380 (1983). The defendant has failed to demonstrate such abuse.

The trial court’s action in denying the defendant’s motions to correct an illegal sentence and its failure to afford the defendant an evidentiary hearing with regard to such motions also reflect the exercise of the court’s discretionary power. The judge who ruled on the motions in this case also sentenced the defendant after she conducted a canvass of at least part of the defendant’s guilty pleas. Nothing elicited at the canvass supports the defendant’s later allegations, by affidavit, that he was subject to certain misrepresentations by counsel which induced him to enter his guilty pleas. The trial court was confronted with the fact that the position taken by the defendant during his canvass was contrary to that expressed in the allegations contained in his affidavit. The court performed its function of resolving the conflicting stances assumed by the defendant and in the exercise of its discretion, based on the facts and circumstances of the case as presented at the hearing on the motions, denied such motions.

There is no error.

In this opinion the other judges concurred.

       Practice Book § 903 provides: “Unless otherwise permitted by the judicial authority in the interests of justice, a motion for a new trial shall be made within five days after a verdict or finding of guilty or within any further time the judicial authority allows during the five-day period.”


text:
    State of Connecticut v. William D. Payton
    (4230)
    Dupont, C. J., Hull and Spallone, Js.
    Argued June 3
    decision released July 29, 1986

      Joseph R. Carvalko, with whom, on the brief, were J. Timothy Deakin, and Joseph R. Carvalko, Jr., for the appellant (defendant).

      Judith Rossi, deputy assistant state’s attorney, with whom, on the brief, were Robert Brunetti, assistant state’s attorney, and James G. Clark, deputy assistant state’s attorney, for the appellee (state).
   Spallone, J.

The defendant appeals from the judgment rendered after he was convicted by a jury of three counts of sexual assault in the first degree in violation of General Statutes § 53a-70.

The jury could reasonably have found the following facts. On July 2, 1984, the defendant, William D. Payton, was arrested and charged with three counts of sexual assault in the first degree. After entering pleas of not guilty to all charges, the defendant elected a trial by jury. When the case was reached for trial and just before the start of jury selection, the trial court, in response to the defendant’s motion to dismiss all charges on the ground that the arrest was illegal, conducted an evidentiary hearing after which it denied the defendant’s motion.

On appeal, the defendant claims that the trial court erred (1) in refusing to dismiss the charges against him despite its finding that the defendant was arrested unlawfully, and (2) in denying the defendant’s motion to dismiss without logically and unambiguously stating its findings.

The facts adduced at the hearing on the defendant’s motion to dismiss may reasonably be summarized as follows. In response to a complaint of a victim of a sexual assault, three uniformed police officers went to the defendant’s home on July 2, 1984, at approximately 5:30 a.m. The defendant answered the officer’s knock on his door at which point the police asked him to step outside so that they could speak with him. The defendant was partially dressed and declined to come out but invited the officers into the house to talk. Upon their entry into the house, the police informed the defendant that there had been a complaint and asked him to come to the police station to discuss the “problem.” The defendant agreed, and the police escorted him to the police cruiser. In accordance with standard police procedure, the defendant was patted down for weapons before he was allowed to enter the vehicle. The officers had not informed the defendant that he was not obligated to go with them, nor was he handcuffed or formally arrested at that time.

At the police station, the defendant was warned of his rights in accordance with the mandates of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), after which he read and initialed a written waiver of those rights. The defendant was then interviewed by Sergeant Michael of the sexual assault unit of the Danbury police, following which the defendant gave a statement which, after it was transcribed by the police, he signed. At the time of the interview, the defendant had not been formally charged with or arrested for any crime and, according to the police, he was free to leave the station at will. After he gave the signed statement, the defendant was arrested.

Prior to trial, the defendant moved to dismiss all charges against him. The court held a hearing on the motion and upon the conclusion of the testimony and after argument by counsel, the court found that probable cause to arrest the defendant existed at the time the police initially went to the defendant’s home, that the police could have obtained an arrest warrant, and that the defendant, by inviting the police in, consented to their entrance into his home. After a colloquy with counsel of the legal principles in State v. Licari, 153 Conn. 127, 214 A.2d 900 (1965), which held that an illegal arrest deprives the court of jurisdiction over the defendant, the trial court ruled as follows: “This court is satisfied that there was probable cause and the officers acted properly. There was no violation of the fourth amendment. There was consent, that the arrest is in fact valid, that it did occur in his home and [that there] was probable cause for such an arrest. If that’s not enough then, to phrase it in such a way that it can be considered in the alternative, the court finds no probable cause, [the police] are absolutely wrong, everything they did was wrong and yet refused to follow Licari and if the Supreme Court wants a second opportunity to examine what they said in Heinz this will present it to them. Motion [to dismiss] is denied. ...” Thereafter, the defendant was tried to a jury and was found guilty of three counts of sexual assault in the first degree.

The defendant’s second claim of error, that he was denied his due process rights under the United States and the Connecticut constitutions by the court’s failure to logically and unambiguously state its finding, even if valid, is immaterial, because for the purposes of this opinion, we shall accept the court’s alternate findings and its conclusion that the defendant’s arrest was unlawful.

Prior to State v. Fleming, 198 Conn. 255, 502 A.2d 886 (1986), the defendant, under Licari, supra, would have been entitled to prevail under his first claim of error, i.e., that the court, by failing to dismiss the charges against the defendant who was unlawfully arrested, committed reversible error. In Fleming, however, the court expressly overruled Licari when it unequivocally stated: “Our holding, in Licari, that an illegal arrest deprives the court of jurisdiction over the defendant’s person, was . . . expressly derived from a misunderstanding of the federal cases, and this fragility in the Licari jurisdictional underpinnings has repeatedly been noted. See State v. Heinz, 193 Conn. 612, 629, 480 A.2d 452 (1984); State v. Gallagher, 191 Conn. 433, 438, 465 A.2d 323 (1983); Borden & Jaffe, ‘The Trouble with Licari; Irony and Anomaly,’ 55 Conn. B.J. 463, 465-69 (1981). As an interpretation of federal law, Licari can no longer stand.” State v. Fleming, supra, 259-60.

Further, the Fleming court found no state constitutional grounds for sustaining Licari. It stated that “[n]othing in the language of the [state] constitutional provisions themselves sheds any light on the proper relationship between an illegal arrest and a subsequent conviction. Nothing in the constitutional history of this state, so far as we know, illuminates the issue. Courts in other jurisdictions, in decisions that are persuasive even though they are not binding, have followed the federal rule. We therefore conclude that an illegal arrest imposes no jurisdictional barrier to a defendant’s subsequent prosecution and overrule State v. Licari to the extent that it holds to the contrary.” (Footnotes omitted.) Id., 262-63.

This court, in State v. Hansen, 8 Conn. App. 26, 29, 510 A.2d 465 (1986), recognized that the rule oí Licari has been abandoned in this state and reversed the ruling of the trial court dismissing the charges against the defendant because of the illegal arrest.

Although the defendant’s claim in this case is based on Practice Book § 815 (4), regarding motions to dismiss based on the absence of the court’s jurisdiction over the defendant, whereas the claim in Hansen was based on Practice Book § 815 (9), regarding motions to dismiss based on the insufficiency of the affidavit relied upon for the issuance of the arrest warrant, we hold that under either Practice Book subsection the defendant is no longer entitled to a dismissal of the charges against him when the underpinning to support his motion to dismiss is based on the now defunct Licari ruling.

The defendant’s argument that Fleming should not be given retroactive application is not persuasive. The court in Fleming expressly stated that Licari was based on an erroneous interpretation of federal law. The law is clear that only where there is a “clear break with the past” involving a new United States constitutional fourth amendment decision should a court consider a new rule as nonretroactive. See, e.g., Solem v. Stumes, 465 U.S. 638, 643-45, 104 S. Ct. 1338, 79 L. Ed. 2d 579 (1984); Reed v. Reincke, 155 Conn. 591, 600-601, 236 A.2d 909 (1967). Because the Licari rule was admittedly an erroneous application of the law, we conclude that the general rule enunciated in United States v. Johnson, 457 U.S. 537, 562, 102 S. Ct. 2579, 73 L. Ed. 2d 202 (1982), that a decision such as in Fleming, where it was not a “clear break from the past,” and which involved the fourth amendment of the United States constitution does apply retroactively to cases, such as the present one, which were pending on direct appeal when Fleming was decided.

Therefore, the ruling of the trial court, denying the defendant’s motion for dismissal on the ground that the defendant arrest was illegal, was proper and in accordance with the law.

There is no error.

In this opinion the other judges concurred.


text:
    State of Connecticut v. Thomas Nicoletti
    (3861)
    Spallone, Daly and Bieluch, Js.
    Argued June 13
    decision released July 29, 1986

      Charles E. Tieman III, with whom, on the brief, were Hugh F. Keefe, John J. Keefe, Jr., and Margaret E. Flynn, certified legal intern, for the appellant (defendant).

      Alan C. Abare, legal intern, with whom were James G. Clark, deputy assistant state’s attorney, and, on the brief, John Waddock, assistant state’s attorney, for the appellee (state).
   Spallone, J.

The defendant, a state police trooper, was tried on a substituted information charging him with three counts of unlawful removal of records in violation of General Statutes § 53-153 and two counts of attempted coercion in violation of General Statutes §§ SZa-té) and 53a-192. He has appealed from the judgment rendered after his conviction by a jury of one count of the crime of attempted coercion.

At the close of the state’s case-in-chief, the court granted the defendant’s motion for acquittal with respect to one count of attempted coercion but denied the motion as to the other four counts. The case then proceeded to its conclusion whereupon the jury returned verdicts of not guilty to the three counts of unlawful removal of records and guilty to one count of attempted coercion. The defendant claims as error the court’s denial of his motion for judgment of acquittal on the second count of attempted coercion.

The jury could reasonably have found the following facts. At approximately 4 a.m. on November 6, 1982, the female complainant, then twenty-one years old, was stopped by the defendant and charged with speeding. During the conversation between the two, the defendant asked the complainant to “go out and have a cup of coffee” with him. She declined the offer and also refused the defendant’s request that she ride with him in his state police vehicle the following evening. She did, however, give the defendant her telephone number. At that point, the defendant took back the complainant’s copy of the speeding ticket and tore it up in front of her.

About two weeks later, the defendant telephoned the complainant and asked her to join him for “that cup of coffee.” The complainant, who in the meantime had discovered that the defendant was married, responded that she would go “anytime you’d like to bring your wife and kids along.” In response, the defendant stated: “If you don’t have a cup of coffee with me, you will receive a copy of your suspended license through the mail.” Thereupon, the complainant filed a complaint against the defendant. This led to an official investigation by the state police and culminated in the defendant’s arrest, trial and conviction.

The defendant contends that the trial court erred when it refused to enter a judgment of acquittal on the charge of attempted coercion. The defendant’s claim of error is, in general, an assertion that there was insufficient evidence presented to the jury to support its finding of guilty. He argues that the state failed to produce any evidence from which the jury could infer beyond a reasonable doubt an essential element of the crime of coercion, i.e., that the defendant actually instilled in the victim a fear that he would take action against her in his capacity as a state official. The defendant also argues that the state failed to prove beyond a reasonable doubt that his conduct towards the victim constituted a substantial step in a course of conduct planned to culminate in his commission of the crime. We find no merit to these claims of error.

All of the defendant’s arguments are based on his claims that there was insufficient evidence to allow the jury to find the essential elements constituting the crime charged beyond a reasonable doubt. The defendant focuses much of his argument on his allegation that the state failed to produce any evidence that the defendant “instilled fear” in the victim. The trial court instructed the jury that an essential element to be proven by the state was that the defendant by his conduct actually did instill fear in the victim. Because the defendant was accused of attempted coercion, a proper application of the attempt statute would require that the jury be instructed not that the defendant actually instilled fear, but that he attempted to instill fear in the victim.

Assuming that the trial court erred in instructing the jury that it had to find that the defendant’s conduct actually instilled fear in the victim, such error would increase the state’s burden and would act as a benefit to the defendant. Where an instruction works to the benefit of a defendant he cannot be heard to complain. State v. Hawthorne, 175 Conn. 569, 574, 402 A.2d 759 (1978). There was evidence presented to the jury that upon hearing the threat: “If you don’t have a cup of coffee with me, you will receive a copy of your suspended license through the mail,” the victim filed the complaint against the defendant. The jury could infer from this act alone that the victim was fearful of losing her license. Moreover, it is the function of the jury to decide, on the basis of all the evidence, whether the defendant’s conduct was a substantial step corroborative of his criminal purpose. The question of whether the defendant’s statement to the victim, along with his other conduct, was sufficient evidence for conviction, obviously was resolved against the defendant by the jury.

It is within the province of the jury to determine the credibility and the effect to be given the evidence. State v. Grant, 177 Conn. 140, 142, 411 A.2d 917 (1979); Eagar v. Barron, 2 Conn. App. 468, 471, 480 A.2d 576 (1984). The issue to be determined is whether the jury reasonably could have concluded, upon the established facts and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt. State v. Findlay, 198 Conn. 328, 333, 502 A.2d 921 (1986); State v. Fernandez, 198 Conn. 1, 21, 501 A.2d 1195 (1985); State v. Tyler-Barcomb, 197 Conn. 666, 668, 500 A.2d 1324 (1985). The evidence must be given a construction most favorable to sustaining the jury’s verdict. State v. Fernandez, supra, 22. The verdict must stand unless it is against the evidence or its manifest injustice is so plain as to justify the belief that the jury or some of its members were influenced by ignorance, prejudice, corruption or partiality. Martino v. Palladino, 143 Conn. 547, 548, 123 A.2d 872 (1956); see Carfora v. Globe, Inc., 5 Conn. App. 526, 529, 500 A.2d 958 (1985). We see nothing in this case that would justify our intrusion into the realm of the jury.

Consequently, the defendant’s claim that his motion for judgment of acquittal should have been granted is without merit. The trial court’s rulings on motions of this nature, because of that court’s familiarity with the facts, are entitled to great weight. Hearl v. Waterbury YMCA, 187 Conn. 1, 3, 444 A.2d 211 (1982); State v. Baldwin, 7 Conn. App. 477, 481, 509 A.2d 76 (1986); see Holden & Daly, Connecticut Evidence (1983 Sup.) § 35. The dispositive question is whether the trial court clearly abused its discretion in denying the motion. Labatt v. Grunewald, 182 Conn. 236, 240, 438 A.2d 85 (1980). Having held that the jury, in this case, reasonably and logically could have reached the determination it did, we conclude that the court did not abuse its discretion in denying the defendant’s motion for judgment of acquittal.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-49 provides in pertinent part: “(a) A person is guilty of an attempt to commit a crime if, acting with the kind of a mental state required for commission of the crime he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be;'or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
      “(b) Conduct shall not be held to constitute a substantial step under subdivision (2) of subsection (a) unless it is strongly corroborative of the actor’s criminal purpose. ...”

       Section 53a-192 provides in pertinent part: “(a) A person is guilty of coercion when he compels or induces a person to engage in conduct which the latter has a legal right to abstain from engaging in ... by means of instilling in him a fear that, if the demand is not complied with, the actor or another will ... (4) take or withhold action as an official, or cause an official to take or withhold action.”


author: Daly, J.

text:
    Rita Carter v. Ralph L. Carter
    (3678)
    Dupont, C. J., Daly and Bieluch, Js.
    Argued April 30
    decision released July 29, 1986

      Lloyd Cutsumpas, with whom was Thomas W. Beecher, for the appellant (plaintiff).

      David P. Ball, with whom, on the brief, was Joseph Dieso, for the appellee (defendant).
   Daly, J.

In this appeal from the judgment dissolving the marriage of the parties, the plaintiff challenges the trial court’s division of assets and award of alimony as being unreasonably disproportionate.

The trial court found the following facts. The parties were married on December 2, 1972. This was the fourth marriage for the defendant, a retired airline pilot, who had been told by the plaintiff before their marriage that she was divorced from her husband, owned a home in Bethel and enjoyed a $500 weekly income from her grandmother’s estate in Austria. The defendant subsequently learned that such was not true. The trial court found the plaintiffs credibility to be totally lacking on the basis of the fact that her financial representations to the defendant were untrue. The plaintiff, although suffering from arthritis, was found to be employable. The defendant was in poor health at the time of the dissolution. The plaintiff was found to be the cause of the breakdown of the marriage which was dissolved on November 5,1984, by the trial court, Geen, J.

After a division of certain personalty, the trial court awarded the plaintiff periodic alimony in the amount of $250 a week for a maximum of two years and the proceeds of the sale of certain stock holdings. The defendant was also ordered to assume certain of the plaintiffs medical bills. The plaintiff claims on appeal (1) that the irretrievable breakdown of the marriage was not a result of her conscious acts, and (2) that the monetary award to her was inadequate.

As a result of certain postjudgment motions filed by the plaintiff, the trial court awarded the plaintiff $150 per week in temporary alimony pending resolution of the appeal. The defendant was subsequently ordered to pay all of the plaintiff’s medical expenses not covered by the defendant’s insurance policy as long as they did not exceed written estimates which were filed in court. The order was conditioned on the plaintiff’s signing a release allowing the defendant to make withdrawals during 1985 from his pension fund. The plaintiff amended her issues challenging the trial court's refusal to grant postjudgment relief by refusing to modify the alimony award from $150 to $250 per week and in requiring her to release the 1985 pension fund payment to the defendant.

In dissolution of marriage cases, we allow the trial court broad discretion in determining whether it correctly applied the law and made reasonable conclusions based on the facts presented. Leo v. Leo, 197 Conn. 1, 4, 495 A.2d 704 (1985); McPhee v. McPhee, 186 Conn. 167, 177, 440 A.2d 274 (1982); Tirado v. Tirado, 7 Conn. App. 41, 43, 507 A.2d 470 (1986). The trial court is “in a clearly advantageous position to assess all of the circumstances surrounding a dissolution action, in which personal factors such as the demeanor and the attitude of the parties are so significant.” Tutalo v. Tutalo, 187 Conn. 249, 251, 445 A.2d 598 (1982); Pickman v. Pickman, 6 Conn. App. 271, 277, 505 A.2d 4 (1986). The trial court is in the position to weigh and interpret the evidence before it in order to pass upon the credibility of witnesses. We, as a reviewing court, do not retry the facts. Leo v. Leo, supra. The trial court chose to believe the defendant’s evidence. “The trier of the facts is free to accept or reject, in whole or in part, the evidence of either party.” Holmes v. Holmes, 2 Conn. App. 380, 382, 478 A.2d 1046 (1984).

In support of her claim that the temporary alimony was inadequate, the plaintiff offered expert medical testimony that she is 25 percent permanently disabled by arthritis. “ ‘The acceptance or rejection of the opinions of expert witnesses is a matter peculiarly within the province of the trier of fact and its determinations will be accorded great deference by this court.’ ” Johnson v. Healy, 183 Conn. 514, 515-16, 440 A.2d 765 (1981). The facts cannot be retried on appeal. “This is particularly true with respect to financial awards in a dissolution action where ‘great weight is given to the judgment of the trial court because of its opportunity to observe the parties and the evidence.’ ” Hirst v. Hirst, 2 Conn. App. 348, 350, 478 A.2d 618 (1984). In dissolution actions, the trial court may exercise broad discretion in awarding alimony and dividing property. Carpenter v. Carpenter, 188 Conn. 736, 742, 453 A.2d 1151 (1982). “While alimony, in whatever form, or an assignment of property is not to be considered either as a reward for virtue or as a punishment for wrongdoing, a spouse whose conduct has contributed substantially to the breakdown of the marriage should not expect to receive financial kudos for his or her misconduct.” Robinson v. Robinson, 187 Conn. 70, 72, 444 A.2d 234 (1982).

We disagree with the plaintiffs claim that the trial court, in making its award of alimony and its assignment of property, gave inordinate weight to the cause of the breakdown. There is no provision in the governing statutes requiring that awards of alimony be distributed equally between the parties. Tutalo v. Tutalo, supra, 253. The trial court structured the division of property in a way which returned to the defendant his contribution to the marriage. Weiman v. Weiman, 188 Conn. 232, 235, 449 A.2d 151 (1982). We find that the trial court fully considered in its memorandum of decision the criteria set out in General Statutes § 46b-81 and that the decision regarding the financial award was reasonable and supported by the evidence. Tirado v. Tirado, supra.

In the amendment to the appeal, the plaintiff further claimed that the trial court abused its discretion in not increasing the temporary alimony pending the appeal from $150 to $250 per week and in ordering her to sign a release for the 1985 pension withdrawal. The plaintiff sought no articulation of the order of September 16, 1985. It may well be that the trial court decided that the release of the pension fund was necessary for the defendant to make his alimony payments or to have funds available for the plaintiff’s potential medical expenses. The established rule in a modification action is that the decision of the trial court shall be attributed great weight and every consideration given in support of its correctness. McGuinness v. McGuinness, 185 Conn. 7, 13, 440 A.2d 804 (1981). “ ‘[T]he power to act equitably is the keystone to the court’s ability to fashion relief in the infinite variety of circumstances which arise out of the dissolution of a marriage.’ ” Holley v. Holley, 194 Conn. 25, 29, 478 A.2d 1000 (1984); Vaiuso v. Vaiuso, 2 Conn. App. 141, 147, 477 A.2d 678, cert. denied, 194 Conn. 807, 482 A.2d 712 (1984). The plaintiff relies on Connolly v. Connolly, 191 Conn. 468, 464 A.2d 837 (1983), for the claim that she was not given adequate notice of the court’s order to sign the approval consent form. Connolly is distinguishable from the present case because it involved an action under subsection (b) of General Statutes § 46b-86 which requires notice and hearing in order to modify dissolution judgments in situations where a party receiving alimony is living with another person. “Because § 46b-86 (a) is narrowly written it cannot reasonably be construed as giving notice of grants of judicial authority outside its own parameters. Moreover, the principle of constructive notice cannot be extended to subsection (b) of § 46b-86 because to do so would negate the notice and hearing requirements expressly provided therein by the legislature.” Connolly v. Connolly, supra, 477.

Because the plaintiffs counsel did not object to the failure of the defendant to testify as to his ability to pay alimony without reaching into the pension fund, it would appear that both parties obviously acquiesced in the procedure regarding the consent form. “If counsel has full knowledge of improper conduct (or what he perceives to be improper procedure) he cannot remain silent, hoping for a favorable ruling, and then be heard to complain when the order is unsatisfactory. See Holden & Daly, Conn. Evidence § 12.” Walsh v. Walsh, 190 Conn. 126, 132, 459 A.2d 515 (1983).

There is no error.

In this opinion the other judges concurred.

       According to the September 16,1985 order, the defendant was entitled to receive a lump sum from his pension each year. This required the waiver or consent of the plaintiff spouse under the provisions of the Pension Reform Act of 1984, effective January 1, 1985.

       General Statutes § 46b-81 provides in pertinent part: “[T]he superior court may assign to either the husband or wife all or any part of the estate of the other. . . . (c) In fixing the nature and value of the property, if any, to be assigned, the court . . . shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”