author: Daly, J.

text:
    Carol Beinhorn v. Nicholas A. Saraceno
    (8414)
    Daly, Foti and M. Hennessey, Js.

      Argued October 1
    decision released November 13, 1990

      Carol Beinhom, pro se, the appellant (plaintiff).

      Alexandra Davis, with whom was Jeffrey A. Hoberman, for the appellee (defendant).
   Daly, J.

The plaintiff instituted an action for false arrest against the defendant. From the judgment rendered after a jury verdict in favor of the defendant, the plaintiff has appealed claiming that the trial court improperly (1) instructed the jury regarding the plaintiffs burden of proof to establish a lack of probable cause for her arrest, (2) submitted interrogatories to the jury regarding matters of law, and (3) precluded the plaintiff from offering rebuttal evidence. We disagree and affirm the judgment of the trial court.

The jury could have reasonably found the following facts. On the evening of August 18,1984, the plaintiff left her work and drove to the defendant’s liquor store. Upon seeing the defendant in his car in an alley next to the store, she parked her car and approached the defendant who was preparing a cash bank deposit. The plaintiff reached into the defendant’s car and touched him, startling the defendant and causing him to upset the bills he was counting. The defendant then ordered her to leave his property. She returned to her car and drove away.

The plaintiff returned a little later, entered the alley next to the defendant’s store and surreptitiously attached a two page note to his car. She then left the alley and returned to the front of the liquor store. She asked a female passerby to enter the store and to tell the defendant that the plaintiff loved him. The woman did as the plaintiff had requested, announcing the message in front of a store full of customers. As a result of this disturbance, the defendant called the Middle-town police to report the incident but did not request further action.

The plaintiff once again returned to her car and wrote another note that she also placed on the defendant’s car. As she was returning to her car, Officer Stephen Ostroski of the Middletown police approached the plaintiff and advised her not to enter onto private property. The plaintiff then left the scene.

Later, the plaintiff resumed her vigil, parking in front of the defendant’s store. When the defendant saw her, he went to his car to leave, but the plaintiff blocked the exit from the alley with her car. The plaintiff left her car in that position for some time while she smoked several cigarettes. She eventually drove off and the defendant was then able to leave.

At the first stop light, the defendant noticed the plaintiff smiling at him in the car to his right. It was then that the defendant noticed the plaintiff’s note on his windshield. The defendant exited his car and tore up the note. He returned to his car, made a left turn into a parking lot and left his car to retrieve the pieces of the note from the street. Then, he immediately drove home. The plaintiff followed the defendant home, parked across the street from his residence and began calling out for him to talk with her. The defendant emerged from his home, walked up the street, found a police officer and requested the plaintiffs arrest.

Ostroski shortly thereafter met with the defendant at his liquor store, heard his complaint and asked the defendant to come to the police station to sign a statement. During this conversation, the plaintiff pulled up in front of the liquor store. Ostroski arrested the plaintiff on the basis of the defendant’s complaint and his own earlier observations of the plaintiff at the store. The plaintiff was taken into custody, transported to the police station and processed under the standard police procedures. At approximately 10 p.m., the defendant came to the station, signed a statement and left. The plaintiff was charged with disorderly conduct and released from custody at 11:45 p.m. Subsequently, the plaintiff, acting pro se, brought suit against the defendant for false arrest.

The plaintiff first claims that the trial court improperly charged the jury regarding the plaintiff’s burden of proof. The trial court instructed the jury that the plaintiff had the burden of proving a lack of probable cause for her arrest in order to establish her allegation of false arrest.

It is axiomatic that the plaintiff had the burden of proving each of the alleged facts of her complaint by a preponderance of the evidence to supply the elements of false arrest. Atlantic Richfield Co. v. Canaan Oil Co., 202 Conn. 234, 237, 520 A.2d 1008 (1987); Coogan v. Lynch, 88 Conn. 114, 116, 89 A. 906 (1914). One element the plaintiff had to prove was that her arrest was unlawful. Because she was arrested without a warrant, General Statutes § 54-lf requires that the arresting officer have probable cause to effect a valid arrest. State v. Wilson, 153 Conn. 39, 41, 212 A.2d 75 (1965); Sims v. Smith, 115 Conn. 279, 284,161 A. 239 (1932). Thus, in order to prevail on her complaint, the plaintiff had the burden of proving that the arresting officer did not have probable cause to arrest her. The record discloses that the trial court thoroughly instructed the jurors as to both the law and as to the necessary facts underlying their consideration of probable cause in the plaintiffs case. The court’s instruction was correct and therefore the plaintiff’s claim is without merit.

The plaintiff next claims that the interrogatories should not have been submitted to the jury. The submission of interrogatories to the jury rests within the sound discretion of the trial court. Shenefield v. Green wich Hospital Assn., 10 Conn. App. 239, 250, 522 A.2d 829 (1987). Connecticut courts favor the use of interrogatories to determine clearly the material facts underlying the jury’s verdict. Gaulton v. Reno Paint & Wallpaper Co., 177 Conn. 121, 125, 412 A.2d 311 (1979). The trial court in the present case was well within its exercise of reasonable discretion to submit interrogatories in this case. See id.

The plaintiff also questions the trial court’s submission of the second interrogatory to the jury: “(2) Did the arresting officer have probable cause to arrest the plaintiff for disorderly conduct?” General Statutes § 54-If requires an arresting officer to have reasonable grounds to believe that he has received speedy information of the commission of an offense in order to make an arrest without a warrant. Sims v. Smith, supra. This determination is usually summarized as probable cause to arrest. State v. Wilson, supra. In other words, probable cause is the knowledge of facts sufficient to justify a reasonable person’s belief that there are grounds to make an arrest; Paranto v. Ball, 132 Conn. 568, 571, 46 A.2d 6 (1946); and is determined by the existence or nonexistence of certain facts, as determined by the trier of fact. Cosgrove Development Co. v. Cafferty, 179 Conn. 670, 671, 427 A.2d 841 (1980). In a civil jury trial, the plaintiff must submit to the jury proof that the arresting officer did not have probable cause to arrest her. See id.

As previously noted, the trial court in this case gave the jury a thorough charge on the law of probable cause and the facts necessary to answer the second interrogatory. This determination was well within the province of the jury and the court’s submission of the interrogatories was not improper. See McMahon v. Florio, 147 Conn. 704, 707-708, 166 A.2d 204 (1960); Paranto v. Ball, supra.

The plaintiff finally claims that the trial court improperly denied her request to present rebuttal evidence, chiefly in response to the defendant’s witness, Michael Fazzino, the plaintiff’s former hairdresser. Fazzino’s testimony concerned two conversations that he had had with the plaintiff about her actions on the day of her arrest and her motivations for pursuing her lawsuit. The first conversation was admitted by the court as an admission of the plaintiff to Fazzino that she had blocked the defendant’s car and followed him on the day of her arrest. In the second conversation with Fazzino, held subsequent to the plaintiff’s filing her lawsuit, the plaintiff disclosed her motivations to obtain money and satisfaction. The trial court admitted this conversation to assist the jury in determining the plaintiff’s credibility.

When the plaintiff requested the opportunity to offer rebuttal testimony, the trial court requested that she make an offer of proof. The plaintiff asserted that she wanted to resume her testimony to controvert or to explain these statements made by Fazzino. The court inquired into the matter further and concluded that her testimony would be cumulative and repetitious of her prior four days of testimony. Furthermore, the trial court ascertained that the plaintiff had had ample opportunity to cross-examine this witness. The trial court also concluded that Fazzino’s testimony concerned matters that were collateral and, thus, was not a proper area for rebuttal.

A trial court has wide discretion in admitting rebuttal testimony and in determining relevancy. State v. Viet X. Nguyen, 17 Conn. App. 234, 240, 552 A.2d 823 (1989) ; B. Holden & J. Daly, Connecticut Evidence (1990) § 11. A plaintiff’s rebuttal testimony is ordinarily limited to such purposes as refuting the defendant’s evidence and impeaching or rehabilitating witnesses. State v. Simino, 200 Conn. 113, 123, 509 A.2d 1039 (1986); Shaham v. Capparelli, 23 Conn. App. 468, 471-72, 581 A.2d 1065 (1990); DeMartin v. Yale-New Haven Hospital, 4 Conn. App. 387, 392, 494 A.2d 1222, cert. denied, 197 Conn. 813, 499 A.2d 62 (1985).

The first conversation with Fazzino was admitted as an out-of-court admission of the plaintiff. When a party’s out-of-court admissions are allowed into evidence, that party is entitled to explain the circumstances surrounding the admissions so that the trier may properly evaluate them. Berger v. Guilford, 136 Conn. 71, 83, 68 A.2d 371 (1949). The trial court should have allowed the plaintiff to rebut these admissions, but in view of the record this omission was harmless. The plaintiff’s claim does not involve any constitutional violation and, hence, the burden rests upon her to demonstrate the harmfulness of the court’s ruling. State v. Simino, supra, 124. Although some details differ, the record discloses that during the plaintiff’s four days of testimony, she acknowledged being near the defendant at the same places that Fazzino later testified she had admitted to him. These admissions, therefore, did not place any significant evidence before the jury that it did not already possess. Finally, the plaintiff has failed to demonstrate credibly that any harm resulted from this witness’ testimony.

The trial court admitted the second conversation between Fazzino and the plaintiff for purposes of evaluating her credibility. The record discloses that the plaintiff had ample opportunity to cross-examine this witness. Moreover, the testimony concerned collateral matters not in issue. A trial court has broad discretion to exclude evidence whose logical nexus to a material fact or issue has not been established. State v. Franko, 199 Conn. 481, 486, 508 A.2d 22 (1986). Therefore, we agree with the trial court that this testimony was not a proper area for rebuttal.

The judgment is affirmed.

In this opinion the other judges concurred.

       After multiple revised and amended complaints, the plaintiff eventually characterized her complaint as false arrest. Although we would treat this cause of action as malicious prosecution; see Lo Sacco v. Young, 20 Conn. App. 6,19-20, 564 A.2d 610, cert. denied, 213 Conn. 808, 568 A.2d 793 (1989); we will follow the trial court’s determination that this suit was in false arrest. Under either cause of action, the plaintiff would bear the burden of proving that there did not exist probable cause to initiate proceedings; see McHale v. W.B.S. Corporation, 187 Conn. 444, 447-49, 446 A.2d 815 (1982); and thus the same result would follow, mutatis mutandis.

         The following eight interrogatories were submitted and answered by the jury, consistent with its verdict:
      “(1) Do you find that any confinement of the plaintiff terminated no later than August 19, 1984? Answer: yes.
      (2) Did the arresting officer have probable cause to arrest the plaintiff for disorderly conduct? Answer: yes.
      (3) Was the arrest made on the speedy information of others? Answer: yes.
      (4) Was the statement of facts given by the defendant to the police a reasonable basis for his complaint? Answer: yes.
      (5) Do you find that when the defendant requested the police to arrest the plaintiff he did so intending or knowing to a substantial certainty that she would be taken into custody? Answer: no.
      (6) Do you find that the plaintiffs arrest was instigated by the defendant’s request to the police for an arrest? Answer: no.
      (7) Did the defendant show a reckless indifference to the rights of the plaintiff in making a complaint to the police? Answer: no.
      (8) Was the making of a complaint by the defendant to the police an intentional and wanton violation of the rights of the plaintiff? Answer: no. ”

       Whether an error is harmful or harmless depends upon whether it affected the verdict. Unless the defendant claims at trial that the claimed error deprived him of a constitutional right, he bears the burden of proving its harmfulness. If the record discloses that the error could not reasonably have affected the verdict, it was harmless and is not reversible error. State v. Taylor, 23 Conn. App. 426, 430 n.l, 580 A.2d 1004 (1990), and cases cited therein.


source: Caselaw Access Project

author: Cretella, J.

license: Public Domain

text:
    State of Connecticut v. David Moreland
    (7621)
    Daly, O’Connell and Cretella, Js.
    Argued September 27
    decision released November 13, 1990

      William Holden, public defender, for the appellant (defendant).

      RichardF. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Linda N. Howe, assistant state’s attorney, for the appellee (state).
   Cretella, J.

The defendant was charged with one count of possession of cocaine with intent to sell in violation of General Statutes § 21a-277 (a). After the trial court denied his motion to suppress any narcotic substances that were seized during a search of his jacket at police headquarters, he pleaded nolo contendere pursuant to General Statutes § 54-94a. The defendant appeals from the trial court’s denial of his motion to suppress, and claims that the evidence seized was the fruit of an unreasonable seizure. We affirm the trial court’s determination.

On February 4,1987, Jesus Oritz, Jr., and Philomena Lula, of the Bridgeport police department, were in the process of transporting a drug offense suspect from Father Panik Village, where they had just apprehended him, to the police station for booking. As they were proceeding through Father Panik Village, the officers observed the defendant and another young male, later identified as Jose Colon, approach a white male seated in a blue automobile and carry on a three way conversation. The defendant had money in his hand and was about three feet from the blue car. Colon stood by the driver’s window. From what they observed, the officers became suspicious, stopped their car, and started to get out. When the defendant saw the officers he waved to Colon, who immediately dashed away.

Colon ran in front of the blue car toward building 17. He was pursued and apprehended by Ortiz. The defendant was detained by Lula. The officers then conducted an investigation and checked the area where the defendant and Colon had been standing, and the route that Colon had taken toward building 17. They located a quantity of narcotics on the ground in front of the blue car. Lula then patted the defendant down to check for weapons and arrested him for attempted sale of narcotics. The defendant was then handcuffed and transported to the police station where his jacket was searched incident to his custodial arrest. Pink glassine envelopes containing a white powdery substance, later identified as cocaine, were seized from a rip inside the lining of the defendant’s jacket. The defendant was then charged with possession of a narcotic substance with the intent to sell.

The defendant filed a motion to suppress the narcotic substance that was found in his jacket at police headquarters. When the court denied this motion, he entered a plea of nolo contendere conditioned upon the outcome of this appeal.

Because the defendant contests the validity of the search of his jacket, we must first review the validity of the defendant’s detention and the arrest that led to the search in question.

An officer may momentarily detain a person for investigative purposes if he has a reasonable and articulable suspicion that that person has committed or is about to commit a crime. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); State v. Edwards, 214 Conn. 57, 71, 570 A.2d 193 (1990). Whether there is a reasonable and articulable suspicion depends on the totality of the circumstances. State v. Aillon, 202 Conn. 385, 399, 521 A.2d 555 (1987). The character of the neighborhood and the officer’s knowledge of narcotics distributions in the area may properly be considered. State v. Rodriguez, 14 Conn. App. 574, 578, 542 A.2d 342 (1988). In reviewing the officers’ actions, we must first determine whether the stop was justified at its inception. Terry v. Ohio, supra, 19-20; State v. Aillon, supra.

The area where the defendant was apprehended was known to the officers to be a drug trafficking area. From their experience in the field of narcotics investigations and arrests, their suspicions were aroused by the defendant’s open display of money, and the conversation they observed between the defendant, Colon and the driver of the blue car. This activity, combined with the defendant’s wave to Colon and Colon’s hasty departure from the scene as soon as the officers stopped their vehicle and began to get out, gave the officers a reasonable and articulable suspicion that criminal activity was occurring, and warranted the detention of the defendant by Lula to inquire about any possible narcotics activity while Ortiz pursued Colon.

“A Terry stop that is justified at its inception will pass constitutional muster only if the ensuing police investigation is reasonably related to the purposes of the stop.” State v. Aillon, supra, 401. Here, the ensuing investigation was not only related to the purpose of the stop, but lead to the discovery of narcotics in a place Colon had just passed as he ran from the officers. It was this discovery that led to the arrest of the defendant. When the results of an initial stop confirm the officer’s suspicions, the scope of the stop may be enlarged. State v. Mitchell, 204 Conn. 187, 197, 527 A.2d 1168, cert. denied, 484 U.S. 927,108 S. Ct. 293, 98 L. Ed. 2d 252 (1987).

An officer may arrest a person without a warrant when he has reasonable grounds to believe that person has committed or is committing a felony. State v. Penland, 174 Conn. 153, 155, 384 A.2d 356, cert. denied, 436 U.S. 906, 98 S. Ct. 2237, 56 L. Ed. 2d 404 (1978). Because probable cause entails more than mere suspicion, there must be facts and circumstances within the officer’s knowledge sufficient to justify the reasonable belief that the offense has been committed. Id. In the present case, the officers’ investigation that followed the brief detention of the defendant led the officers to the narcotics on the ground in front of the blue car and gave rise to the reasonable belief that a felony was being committed.

We conclude that both the Terry stop and the arrest of the defendant were valid. In addition, because the seizure of the narcotics from the defendant’s jacket was the result of a search incident to a lawful custodial arrest, it too was valid. State v. Copeland, 205 Conn. 201, 209, 530 A.2d 603 (1987).

The judgment is affirmed.

In this opinion the other judges concurred.


author: Landau, J.

text:
    294 Farmington Realty Company v. CFM of Connecticut, Inc., et al.
    (8745)
    Foti, Lavery and Landau, Js.
    Argued October 3
    decision released November 20, 1990

      John Timbers, for the appellant (named defendant).

      Houston Putnam Lowry, with whom, on the brief, was Peter B. Rustin, for the appellee (plaintiff).
   Landau, J.

The named defendant, CFM of Connecticut, Inc., in this summary process action, appeals from a judgment of possession rendered on December 21, 1989, in the Housing Session of the Superior Court. The defendant’s attorney claims that he did not have fair notice of the trial date and that to hold trial in his absence was a violation of due process. The defendant’s claim is without merit and we uphold the judgment of the trial court.

The trial court could have found the following facts. The court held a scheduling conference on October 30, 1989, assigning the date of December 21,1989, for the underlying summary process action. Counsel for both parties participated in the conference. Following the scheduling conference, the plaintiff’s attorney sent a confirmation letter to the court. An electronic facsimile of this letter was also transmitted to the defendant’s attorney. On December 19, two days before trial, the defendant’s attorney discussed the possibility of a continuance with the chief clerk of the court. The plaintiff’s attorney did not agree to a continuance, however, and sent the defendant’s attorney an electronic facsimile indicating that the summary process action would be heard as scheduled. On December 20, the plaintiff’s attorney sent an electronic facsimile of a handwritten message to the defendant’s attorney reiterating that he did not agree to a continuance and would proceed with the summary process action as scheduled. After speaking with the defendant’s attorney on the telephone and personally telling him that he would not agree to a continuance and would be proceeding as scheduled, the plaintiff’s attorney sent another electronic facsimile of a typewritten letter again indicating that the trial would proceed on the following day.

The defendant’s attorney failed to appear in court on December 21. Because the defendant failed to respond to requests for admissions, the court considered the facts contained therein as admitted pursuant to Practice Book § 239, and rendered a judgment of possession for the plaintiff.

“ ‘ “It is the settled rule of this jurisdiction, if indeed it may not be safely called an established principle of general jurisprudence, that no court will proceed to the adjudication of a matter involving conflicting rights and interests, until all persons directly concerned in the event have been actually or constructively notified of the pendency of the proceeding, and given reasonable opportunity to appear and be heard.” . . . “It is fundamental in proper judicial administration that no matter shall be decided unless the parties have fair notice that it will be presented in sufficient time to prepare themselves upon the issue.” ’ ” (Citations omitted.) Hasbrouck v. Hasbrouck, 195 Conn. 558, 559-60, 489 A.2d 1022 (1985), quoting Winick v. Winick, 153 Conn. 294, 298-99, 216 A.2d 185 (1965).

In light of the participation of the defendant’s counsel at the scheduling conference, and the subsequent communications between the parties, the defendant’s attorney had ample notice of the pending proceedings. The defendant’s claim is therefore without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       Also named as defendants were Taufiquil Chowdhery, a franchisee of CFM of Connecticut, Inc., and John Doe. The court rendered a default judgment against Chowdhery and Doe on December 21, 1989. We will refer in this opinion to CFM, the sole appellant, as the defendant.

       The defendant, at oral argument, withdrew its second claim, which sought the assignment of a different judge upon remand of the case.


author: Spallone, J.

text:
    State of Connecticut v. Craig Toczko
    (8419)
    Dupont, C. J., Spallone and Foti, Js.
    Argued October 1
    decision released November 20, 1990

      Brian M. O’Connell, for the appellant (defendant).

      Susann E. Gill, assistant state’s attorney, with whom, on the brief, were John Bailey, state’s attorney, and Herbert E. Carlson, Jr., assistant state’s attorney, for the appellee (state).
   Spallone, J.

The defendant was convicted, after a jury trial, of the crimes of manslaughter in the first degree with a firearm in violation of General Statutes §§ 53a-55a and 53a-55 (a) (1) and conspiracy to commit manslaughter in the first degree with a firearm in violation of General Statutes §§ 53a-48 (a), 53a-55a and 53a-55 (a) (1). On appeal, the defendant claims that the trial court improperly (1) accepted the jury’s conviction of conspiracy to commit manslaughter, (2) instructed the jury regarding intoxication, and (3) denied the defendant’s motion for judgment of acquittal that was based upon the sufficiency of the evidence.

The jury could have reasonably found the following facts. On December 27, 1987, at about 3:30 a.m., the defendant, Craig Toczko, a marine on leave for the Christmas holidays, was a passenger in a grey Honda driven by an acquaintance, Gerald Larson. Larson drove the vehicle into the parking lot of the Newbrite Plaza in New Britain and brought it to a halt. In the vehicle were two rifles and a supply of ammunition belonging to Larson. The defendant pointed one of the rifles out of the passenger side window and aimed it toward Mark Barnett, who had just emerged from a nearby Dunkin Donuts. John Desano, who was loading Hartford Courant newspapers into his vehicle in preparation for early morning deliveries, noticed the weapon pointing out of the passenger window aimed towards Barnett and yelled to warn him. The defendant then took careful aim and shot Barnett through the heart. Barnett was later pronounced dead on arrival at New Britain Hospital.

Larson then sped out of the parking lot. Desano jumped into his car and chased after the two men. During the chase, Desano came upon a police cruiser and told the officers that the people in the vehicle he was chasing had just fired a shot. The officers pursued the vehicle a short distance. When it stopped, they ordered the occupants out of the car.

A search of the vehicle revealed two rifles and a box of .22 caliber ammunition. The bullet extracted from the victim matched those found in the vehicle and further analysis revealed that the bullet removed from the victim had been fired from the Squires Bingham model 16 rifle that was found in the Honda. While the defendant awaited booking at the police station, he mentioned to one of the officers that he was an expert marksman. At trial, the defendant testified as to his abilities as a marksman. The defendant also testified that he had been drinking on the night of the shooting. He stated that he was confused and drunk at the time of the shooting.

Upon the close of evidence, the court instructed the jury on the elements of murder and conspiracy to commit murder as well as the lesser included offenses of manslaughter in the first degree and conspiracy to commit manslaughter in the first degree. The court also instructed the jury as to the operation of General Statutes § 53a-7, which defines intoxication and its relation to the elements of a crime. After deliberation, the jury found the defendant guilty of manslaughter in the first degree with a firearm in violation of General Statutes §§ 53a-55 (a) (1) and 53a-55a, and conspiracy to commit manslaughter in the first degree with a firearm in violation of General Statutes §§ 53a-48 (a), 53a-55 (a) (1) and 53a-55a. From that judgment, the defendant filed the present appeal.

I

The defendant first claims that the trial court improperly accepted the jury’s conviction of conspiracy to commit manslaughter. The defendant recognizes that this claim was not raised at trial and requests review under the bypass rule of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), and State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). A defendant convicted of an offense of which he was never given notice has been deprived of a fundamental constitutional right and of a fair trial. State v. Martin, 187 Conn. 216, 445 A.2d 585 (1982). The circumstances of this case warrant review of the claimed error because the defendant has met the four requirements of State v. Golding, supra. See State v. Martin, supra.

The state concedes that conspiracy to commit manslaughter, as defined in General Statutes §§ 53a-55 (a) (1) and 53a-55a, is not a legally cognizable crime in the state of Connecticut. Manslaughter in the first degree under General Statutes § 53a-55 (a) (1), which was characterized as involuntary manslaughter; State v. Almeda, 189 Conn. 303, 308, 455 A.2d 1326 (1983); requires that a person, with the intent to cause serious physical injury, cause the death of another. The result, i.e., the death of the victim, is unintended. For conspiratorial liability to adhere, however, the criminal results of the offense must be the conscious objective of the actor’s conduct. State v. Beccia, 199 Conn. 1, 4, 505 A.2d 683 (1986). The crime of conspiracy to commit manslaughter, as defined in General Statutes §§ 53a-55 (a) (1) and 53a-55a, “requires a logical impossibility, namely, that the actor . . . intend that an unintended death result.” State v. Almeda, supra, 309; see also State v. Beccia, supra (conspiracy to commit arson is not a legally cognizable crime). Accordingly, it is legally impossible to conspire to commit involuntary manslaughter. State v. Montgomery, 22 Conn. App. 340, 344, 578 A.2d 130 (1990). Therefore, the trial judge improperly accepted the jury’s verdict of guilt on that charge.

The defendant and the state disagree, however, as to the proper disposition of the judgment on conspiracy to commit manslaughter. The state urges this court to render judgment against the defendant on the alleged lesser included offense of conspiracy to commit assault in the second degree under General Statutes §§ 53a-48, 53a-60 (a) (1) and 53a-60a. The state reasons that the jury implicitly found all of the elements for this crime when it found the defendant guilty of conspiracy to commit manslaughter and concludes, therefore, that the crime of conspiracy to commit assault in the second degree is a lesser included offense to the crime of conspiracy to commit manslaughter. The defendant, on the other hand, insists that it is logically irrational to fashion a lesser included offense from an offense that does not exist at law. He further asserts that such an action would be fundamentally unfair and would violate his constitutional rights.

This court cannot conduct a lesser included offense analysis to determine what a jury might have done had it been charged on the alleged lesser included offense because there was no such charge and because the greater offense does not exist at law. We cannot know what elements would be considered relevant by the jury. Under these circumstances, we decline the state’s invitation to define a lesser included offense of a nonexistent principal offense.

II

The defendant next claims that the trial court’s supplemental instructions on intoxication were inadequate to apprise the jury that, by presenting evidence of intoxication, the defendant incurred no obligation to prove his innocence. He further contends that the instructions could have been construed as requiring the defendant to establish his intoxication rather than placing the burden on the state to establish that the defendant had formed the requisite intent. We disagree.

A charge to the jury is not to be clinically dissected nor are portions of the charge to be read in isolation from the entire instruction. State v. Foreshaw, 214 Conn. 540, 548, 572 A.2d 1006 (1990). Rather the charge is to be read as a whole with a view towards its probable effect in guiding a jury to a correct verdict. State v. Shannon, 212 Conn. 387, 408, 563 A.2d 646, 493 U.S. 980, 110 S. Ct. 510, 107 L. Ed. 2d 512 (1989). Where, as here, supplemental instructions are reviewed those must be considered together with the original instructions. State v. Cavros, 196 Conn. 519, 528, 494 A.2d 550, cert. denied, 474 U.S. 904, 106 S. Ct. 233, 88 L. Ed. 2d 232 (1985). The test to be applied to any part of the charge is whether the charge, when taken as a whole, presents the case to the jury fairly and accurately, such that no injustice will be done. State v. Moss, 189 Conn. 364, 370, 456 A.2d 274 (1983).

Our review of the entire charge that was given to the jury reveals no reasonable possibility that the jury was misled. In fact, the trial court carefully and repeatedly instructed the jury that the burden of proof on the element of intent rested with the state. Accordingly, we find no merit in the defendant’s claim.

III

The defendant’s final claim is that the trial court improperly denied the defendant’s motion for a judgment of acquittal. The defendant claims that the state failed to introduce any evidence to show that he had the intent to cause serious physical injury to the victim, as is required for a conviction of manslaughter in the first degree with a firearm. The defendant concedes that the state introduced evidence that he intended to cause the death of the victim, but asserts that that evidence did not establish that he intended to cause serious physical injury.

When an appeal challenges the sufficiency of the evidence to justify a verdict of guilty, we must construe the evidence introduced at trial in the light most favorable to sustaining the verdict. State v. Carpenter, 214 Conn. 77, 78, 570 A.2d 203 (1990); State v. John, 210 Conn. 652, 666, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84,107 L. Ed. 2d 50 (1989). We must determine whether “ ‘the jury could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt.’ ” State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084,104 S. Ct. 1455, 79 L. Ed. 2d 722 (1984).

The element of intent involves “a mental process which ordinarily can be proven only by circumstantial evidence.” State v. Zdanis, 182 Conn. 388, 396, 438 A.2d 696 (1980), cert. denied, 450 U.S. 1003, 101 S. Ct. 1715, 68 L. Ed. 2d 207 (1981). “The intent of the actor is a question for the trier of fact, and the conclusion drawn by the trier in this regard should stand unless it is an unreasonable one.” State v. Holley, 174 Conn. 22, 26, 381 A.2d 539 (1977). The jury in this case could reasonably have determined that by firing a shot at the victim the defendant intended to cause “physical injury which [created] a substantial risk of death, or which [caused] serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ.” General Statutes § 53a-3 (4).

The judgment of conviction of conspiracy to commit manslaughter in the first degree with a firearm is reversed and the case is remanded with direction to render judgment of not guilty on that charge; the judgment of conviction of manslaughter in the first degree with a firearm is affirmed.

In this opinion the other judges concurred.

       The defendant meets the following four requirements of Evans and Golding: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” State v. Golding, supra, 239-40.

       During the original charge to the jury, the trial court stressed that the entire burden of proving guilt rested with the state. During the first supplemental instruction, the trial court, in explaining the meaning of “intent,” stated that “the state must prove specific intent, along with the other elements, beyond a reasonable doubt.”
      During the second supplemental instruction requested by the jury, explaining intoxication and intent the trial court stated: “First, the defendant does not — I repeat — the defendant does not have to prove he was intoxicated to the degree that it negates intent. As I told you in my initial charge, there is no burden on the defendant to prove anything at all. The entire burden of proof . . . rests with the state of Connecticut and that burden is to prove all the elements . . . beyond a reasonable doubt. Again, ladies and gentlemen, I specifically instruct you that the entire burden of proof in this case rests with the State of Connecticut and in a criminal prosecution that burden never shifts.”


author: Lavery, J.

text:
    G. S. v. T. S.
    (8797)
    Foti, Lavery and Cretella, Js.
    Argued September 28
    decision released November 9, 1990

      Bruce A. Chamberlain, for the appellant (plaintiff).

      Peter W. Rotella, with whom, on the brief, was A. A. Washton, for the appellee (defendant).
   Lavery, J.

The plaintiff father appeals from a judgment in an action for dissolution of marriage in which custody of the minor children was awarded to the defendant mother. The plaintiff claims that the trial court abused its discretion (1) in awarding sole custody of the minor child H to the defendant, (2) in basing its custody decision on facts not in evidence, and (3) in failing to consider him as a potential custodial parent.

We do not reach the plaintiff’s specific claims because we find that the trial court abused its discretion in failing to appoint an attorney for the minor children.

The plaintiff raised the issue of counsel for the children in a pretrial motion. This motion was never addressed by either the court or the defendant, and the plaintiff did not pursue this motion at trial. Nevertheless, after a careful review of the record, we find that the trial court’s failure to appoint counsel went to the vital issue of custody in this case. In a case such as this, where custody is contested and where allegations of child abuse, specifically allegations of sexual molestation, were known to the trial court prior to the commencement of trial and became abundantly clear during the first day of testimony, it was an abuse of discretion not to appoint counsel for the minor children. We are therefore compelled to address this important issue in the interests of justice. Practice Book § 418b; Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 577-78, 479 A.2d 781 (1984); Batick v. Seymour, 186 Conn. 632, 641, 443 A.2d 471 (1982); Riccio v. Abate, 176 Conn. 415, 418 n.l, 407 A.2d 1005 (1976); State v. Rogers, 18 Conn. App. 104, 111, 556 A.2d 1030 (1989).

The facts relevant to the disposition of this appeal are as follows. The plaintiff and the defendant were married on February 7,1983, and two daughters were born to them, H, on April 26, 1982, and N, on July 2, 1986. The couple separated in the fall of 1988. Due to hostility exacerbated by the custody battle over H, there was no hope of reconciliation between the parties. On October 17,1988, the plaintiff filed suit in New London Superior Court seeking dissolution of the marriage and joint custody of the two minor children. In November, 1988, the court, Hendel, J., entered a pendente lite order awarding custody of both children to the defendant with reasonable rights of visitation to the plaintiff.

On April 20, 1989, the court, Hurley, J., issued an ex parte order changing the custody of H to the plaintiff. That order was based on an affidavit by the plaintiff alleging that H was sexually molested on numerous occasions by the defendant’s cousin, Larry Post, while she was in the defendant’s custody. The affidavit also stated that these allegations were being investigated by the Groton police department and the department of children and youth services (DCYS) and that both agencies had suggested that H not be returned to the defendant’s custody. Although a hearing date on the ex parte order was set for May 1, 1989, the hearing was never held.

From April until the end of trial before Hon. Eli L. Cramer, state trial referee, H resided with the plaintiff and N continued to reside with the defendant. The plaintiff sought sole custody of H alone until the end of the trial when he sought the custody of both children. At the time the ex parte order was entered, no counsel was appointed for H nor was any referral made to family relations for an investigation and study. On July 17, 1989, the plaintiff filed a motion for the appointment of counsel for both minor children. A review of the file fails to disclose whether action was ever taken on that motion, but in any event, counsel was not appointed for either of the two minor children during the trial.

A five day trial was held over the course of five months. During the first day of trial the plaintiff called three witnesses, Officer John Murphy of the Groton police department, Officer Herbert Soler of the Connecticut state police and Barbara Rucci, a social worker employed by the forensic mental health services, who was acting as sexual abuse counselor for H. The testimony of all three witnesses involved allegations of Post’s sexual abuse of H.

The two police officers had interviewed H, the defendant, the plaintiff’s parents, the defendant’s mother and Post. Reports of those interviews were entered as exhibits. The defendant objected to the admission into evidence of H’s statements to the police officers on the grounds that those statements were hearsay. Although the plaintiff offered to make the child available, the court indicated it was not going to allow a six year old child to testify.

The testimony and reports offered by the two police officers revealed that H was sexually molested, that H asserted that the defendant knew about the molestation, and that Post confessed to molesting H. The reports also disclosed conflicting assertions by the defendant that the molestation never took place and that she had no knowledge of it.

When Rucci was called as a witness, she objected to testifying, claiming that her conversations with H were confidential and were, therefore, privileged communications protected under this state’s confidentiality statute. The trial court allowed the plaintiff to waive H’s privilege over objections of the defendant and the witness, both of whom maintained that a parent or guardian who has an interest in the outcome of the hearing could not waive the privilege on behalf of the child. Upon order of the trial court, Rucci testified and her notes were admitted into evidence.

Rucci’s notes and testimony corroborated the fact that there was a conflict between H’s statements and those of the defendant relative to the molestations and the defendant’s knowledge of the abuse.

By the end of the first day of hearings the trial court was aware of the following facts: (1) H’s custody was modified by an ex parte order and a hearing was never held on that order; (2) Post confessed to molesting H; and (3) there was a conflict between H’s testimony and that of the defendant relating to whether the molestations ever took place and whether the defendant knew about them. The trial court also knew that DCYS was involved, that there was a great deal of conflict between the plaintiff and the defendant over custody, as well as discord between the plaintiff’s parents and the defendant’s parents. Over the course of the four subsequent days of trial, the trial court heard testimony from the plaintiff, the defendant, their respective parents, a DCYS social worker, and the defendant’s sister. All of this testimony pointed out the heated conflict between the two families and the disparate versions of Post’s sexual molestations of H.

The trial court in its memorandum of decision found that there was no conclusive probative evidence that the defendant knew or should have known that H had been molested. The court stated further that the defendant was living with her parents and that they were a good influence on the defendant and her children. On the basis of these findings, the court awarded custody of both children to the defendant.

The guiding principle applicable to determining the custody of children in a dissolution proceeding is the best interests of the child. General Statutes § 46b-56 (b); Spicer v. Spicer, 173 Conn. 161, 162, 377 A.2d 259 (1977); Simons v. Simons, 172 Conn. 341, 347, 374 A.2d 1040 (1977). Our Supreme Court has stated that “[i]n the search for an appropriate custodial placement, the primary focus of the court is the best interests of the child, the child’s interest in sustained growth, development, well-being, and in the continuity and stability of its environment.” Cappetta v. Cappetta, 196 Conn. 10, 16, 490 A.2d 996 (1985). This standard articulates the right of children in custody cases to be placed in an environment where they are not abused and neglected but rather where they are loved and nurtured.

In determining what is in the best interests of the child? the court is vested with broad discretion. Ridge way v. Ridgeway, 180 Conn. 533, 541, 429 A.2d 801 (1980); Kearney v. State, 174 Conn. 244, 252, 386 A.2d 223 (1978); Simons v. Simons, supra, 348; Palmieri v. Palmieri, 171 Conn. 289, 290,370 A.2d 926 (1976). This court is not privileged to usurp that authority or to substitute its judgment for that of the trial court. “ ‘A mere difference of opinion or judgment cannot justify our intervention. Nothing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference.’ ” Kearney v. State, supra, quoting Morrill v. Morrill, 83 Conn. 479, 491, 77 A. 1 (1910).

General Statutes § 46b-54 (b) provides that the court may appoint counsel in any case “when the court finds that the custody, care, education, visitation or support of a minor child is in actual controversy . . . .” Although the language of the statute leaves such appointments to the discretion of the court, our Supreme Court has stated that “in the absence of strong countervailing considerations such as physical urgency or financial stringency, the better course is to appoint independent counsel whenever the issue of child custody is seriously contested. ” (Emphasis added.) Yontef v. Yontef 185 Conn. 275, 284, 440 A.2d 899 (1981); see also K. Landsman & M. Minow, “Lawyering for the Child: Principles of Representation in Custody and Visitation Disputes Arising from Divorce,” 87 Yale L.J. 1126,1129-34 (1978); R. Berdon, “Child Custody Litigation: Some Relevant Considerations,” 53 Conn. B.J. 279, 286-88 (1979).

In Yontef supra, the trial court was not faced with charges of child abuse or sexual abuse. The court had the benefit of a family relations study and had ample evidence to support a finding that both parties were proper, fit and good parents. In this case, where custody is hotly contested, where, prior to trial, the court is made aware of allegations of child abuse and sexual molestation, and where those allegations become abundantly clear during the first day of testimony, it is an abuse of discretion not to appoint counsel for the minor children. C.J.(S.)R. v. G.D.S., 701 S.W.2d 165,169 (Mo. App. 1985); M.M. v. R.R.M., 358 N.W.2d 86 (Minn. App. 1984). When custody is contested and there are allegations of neglect and abuse, children have a unique need to be represented by counsel who will advocate their best interests.

If counsel had been appointed for H at the time of the ex parte order that counsel most likely would have requested a family relations study in accordance with § 46b-6 of General Statutes and may have requested a hearing on the ex parte order to get the court involved in the allegations set forth in the affidavit at the earliest possible date. On the first day of trial, counsel for H could have pointed out that under § 54-86h H was competent to testify. State v. James, 211 Conn. 555, 563-65, 560 A.2d 426 (1989); Wilhelm v. Czuczka, 19 Conn. App. 36, 38, 561 A.2d 146 (1989). Counsel could have argued that because her testimony was pivotal to the determination of her custody and sexual abuse, H was entitled to testify as of right. Counsel for H also could have cited § 52-146k (d) to highlight the fact that the plaintiff had an interest in the outcome of the dispute and therefore could not waive H’s privilege of confidentiality with her sexual abuse counselor.

Both the plaintiff and the defendant had the benefit of counsel whose advocacy obligations were to their clients. Those obligations do not require that the parents’ counsel act in the best interest of the children. Neither parent could be relied on to communicate to the court the children’s interests where those interests differed from his or her own. As the United States Supreme Court has recognized, “experience has shown that the question of custody, so vital to a child’s happiness and well being, frequently cannot be left to the discretion of parents. This is particularly true where, as here, the estrangement of husband and wife beclouds parental judgment with emotion and prejudice.” Ford v. Ford, 371 U.S. 187, 193, 83 S. Ct. 273, 9 L. Ed. 2d 240 (1962).

Finally, the court is not an advocate but rather is the arbiter of the dispute and of the best interests of the child. It is clear that both H and N needed and were entitled to counsel to advocate their best interests.

The judgment is reversed as to the award of custody and child support and the case is remanded for a new hearing on those issues; custody of the children and the award of child support shall remain as ordered until further order of the Superior Court.

In this opinion the other judges concurred.

       Due to the sensitive nature of this case, the parties and their children are referred to by initials.

       Practice Book § 4185 provides in relevant part: “The supreme court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The supreme court may in the interests of justice notice plain error not brought to the attention of the trial court.”

       General Statutes § 46b-56 provides inter alia “(b) In making or modifying any order with respect to custody or visitation, the court shall be guided by the best interests of the child, giving consideration to the wishes of the child if he is of sufficient age and capable of forming an intelligent preference, provided in making the initial order the court may take into consideration the causes for dissolution of the marriage or legal separation if such causes are relevant in a determination of the best interests of the child.”

       General Statutes § 46b-54 provides: “(a) The court may appoint counsel for any minor child or children of either or both parties at any time after the return day of a complaint under section 46b-45, if the court deems it to be in the best interests of the child or children. The court may appoint counsel on its own motion, or at the request of either of the parties or of the legal guardian of any child or at the request of any child who is of sufficient age and capable of making an intelligent request.
      “(b) Counsel for the child or children may also be appointed on the motion of the court or on the request of any person enumerated in subsection (a) of this section in any case before the court when the court finds that the custody, care, education, visitation or support of a minor child is in actual controversy, provided the court may make any order regarding a matter in controversy prior to the appointment of counsel where it finds immediate action necessary in the best interests of any child.
      “(c) Counsel for the child or children shall be heard on all matters pertaining to the interests of any child, including the custody, care, support, education and visitation of the child, so long as the court deems such representation to be in the best interests of the child.”

       General Statutes § 46b-6 provides: “In any pending family relations matter the court or any judge may cause an investigation to be made with respect to any circumstance of the matter which may be helpful or material or relevant to a proper disposition of the case. Such investigation may include an examination of the parentage and surroundings of any child, his age, habits and history, inquiry into the home conditions, habits and character of his parents or guardians and evaluation of his mental or physical condition. In any action for dissolution of marriage, legal separation or annulment of marriage such investigation may include an examination into the age, habits and history of the parties, the causes of marital discord and the financial ability of the parties to furnish support to either spouse or any dependent child.”

       General Statutes § 54-86h provides: “No witness shall be automatically adjudged incompetent to testify because of age and any child who is a victim of assault, sexual assault or abuse shall be competent to testify without prior qualification. The weight to be given the evidence and the credibility of the witness shall be for the determination of the trier of fact.”

       General Statutes § 52-146k provides in relevant part: “(a) As used in this section: ... (3) ‘Confidential communication’ means information transmitted between a victim of a battering or a sexual assault and a battered women’s counselor or sexual assault counselor in the course of that relationship and in confidence by a means which, so far as the victim is aware, does not disclose the information to a third person other than any person who is present to further the interests of the victim in the consultation or any person to whom disclosure is reasonably necessary for the transmission of the information or for the accomplishment of the purposes for which such counselor is consulted, and includes all information received by, and any advice, report or working paper given or made by, such counselor in the course of the relationship with the victim. . . .
      “(5) ‘Sexual assault counselor’ means any person engaged in a rape crisis center who (A) has undergone a minimum of twenty hours of training which shall include, but not be limited to, the dynamics of sexual assault and incest, crisis intervention, communication skills, working with diverse populations, an overview of the state criminal justice system, information about hospital and medical systems and information about state and community resources for sexual assault victims, (B) is certified as a counselor by the sexual assault center which has provided such training, (C) is under the control of a direct services supervisor of a rape crisis center, and (D) whose primary purpose is the rendering of advice, counseling and assistance to, and the advocacy of the cause of, victims of sexual assault.
      “(6) ‘Victim’ means any person who consults a battered women’s counselor or a sexual assault counselor for the purpose of securing advice, counseling or assistance concerning a mental, physical or emotional condition caused by a battering or a sexual assault.
      ' “(b) On or after October 1,1983, a battered women’s counselor or a sexual assault counselor shall not disclose any confidential communications made to such counselor at any time by a victim in any civil or criminal case or proceeding or in any legislative or administrative proceeding unless the victim making the confidential communications waives the privilege ....
      “(d) A minor may knowingly waive the privilege established by this section. In any instance where the minor is, in the opinion of the court, incapable of knowingly waiving the privilege, the parent or guardian of the minor may waive the privilege on behalf of the minor, provided such parent or guardian is not the defendant and does not have a relationship with the defendant such that he has an interest in the outcome of the proceeding.”


text:
    Housing Authority of the Town of East Hartford v. Nancy Melanson
    (9002)
    Spallone, O’Connell and Foti, Js.
    Argued October 30
    decision released December 4, 1990

      John F. Sullivan, with whom, on the brief, was Ralph J. Alexander, for the appellant (plaintiff).

      Robin J. Hammeal-Urban, with whom was James Moreno, for the appellee (defendant).
   Spallone, J.

The plaintiff appeals from the trial court’s decision granting the defendant a writ of audita querela that stayed the execution of the judgment of immediate possession in a summary process action.

The plaintiff claims that the trial court improperly (1) granted the writ of audita querela based on a previously adjudicated issue, (2) granted the equitable remedy of audita querela where the defendant had “unclean hands,” (3) granted a second writ of audita querela, and (4) violated the plaintiffs federal constitutional rights. We do not review these claims because this appeal is moot.

The following facts are relevant to the disposition of this appeal. The plaintiff housing authority of the town of East Hartford filed a summary process action based on nonpayment of rent against its tenant, the defendant Nancy Melanson. On April 11, 1989, the plaintiff and the defendant entered into a stipulated judgment of possession for the plaintiff, which provided for a final stay of execution through June 11, 1989. At the time of the stipulated judgment, it was believed that the defendant would be able to procure housing with the Rockville housing authority. The defendant was unable to secure such alternate housing, however, and on July 17,1989, an execution was issued against her. The defendant sought a writ of audita querela based on her inability to procure alternate housing. The defendant asserted that she had entered into the stipulated judgment in reliance on the representation that alternate housing was available and that she would not have stipulated to judgment for the plaintiff had she known otherwise. On August 14,1989, the trial court granted the defendant a writ of audita querela, staying the execution through February 14, 1990.

On August 15, 1989, the plaintiff appealed to this court seeking a reversal of the trial court’s decision. On December 22,1989, we set aside the writ of audita querela because the defendant, appearing pro se, failed to file a brief as we had ordered and failed to appear at oral argument. We remanded to the trial court with instruction to vacate the writ.

Subsequently, another execution issued against the defendant and she was notified by the sheriff that she would be evicted from the premises at 10 a.m. on March 19,1990. On March 15,1990, the defendant filed for a second writ of audita querela based on allegations of poor mental and physical health that would be exacerbated if she were forced to move. After a hearing, the trial court granted the second writ of audita querela staying the execution through June 30, 1990. This appeal followed.

We note that the writ of audita querela, the subject of this appeal, and the resultant stay of execution expired as of July 1, 1990, and are no longer of any force and effect. The only reason an execution may not issue at this time is because of the automatic stay incident to this appeal. Upon the rendering of a decision by this court, such stay will also be terminated, subject to further appeal, with the result that the plaintiff may properly apply for an execution.

As the writ of audita querela has expired, there is no longer a controversy before us. It is beyond dispute that “ ‘the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions disconnected from the granting of actual relief or from the determination of which no practical relief can follow.’ Reynolds v. Vroom, 130 Conn. 512, 515, 36 A.2d 22 (1944); see also Shays v. Local Grievance Committee, 197 Conn. 566, 571, 499 A.2d 1158 (1985). ‘ “In the absence of an actual and existing controversy for us to adjudicate in any sense of the term, the courts of this state may not be used as a vehicle to obtain judicial opinions upon points of law . . . and where the question presented is purely academic, we must refuse to entertain the appeal. . . Connecticut Foundry Co. v. International Ladies Garment Workers Union, 177 Conn. 17,19, 411 A.2d 1 (1979).’ ” Butzgy v. Glastonbury, 203 Conn. 109, 114-15, 523 A.2d 1258 (1987).

Accordingly, this appeal is moot.

The appeal is dismissed.

In this opinion the other judges concurred.

       Audita querela is a remedy granted in favor of one against whom execution has issued or is about to issue on a judgment the enforcement of which would be contrary to justice.


author: Foti, J.

text:
    Angelika Papagorgiou v. Angelo Anastopoulous et al.
    (8752)
    Dupont, C. J., Spallone and Foti, Js.
    Argued September 28
    decision released December 4, 1990

      Steven Duke, with whom was J. L. Pottenger, Jr., for the appellant (plaintiff).

      Frank B. Velardi, Jr., for the appellees (defendants).
   Foti, J.

The plaintiff appeals from the judgment rendered by the trial court following its granting of the defendants’ motion to dismiss for failure of the plaintiff to establish a prima facie case. The plaintiff claims that she was precluded from proving a prima facie case. We reverse the trial court’s decision.

The plaintiff filed a two count complaint on June 19, 1987, seeking specific performance and damages for breach of contract. The complaint alleged that the defendants, Angelo and Maria Anastopoulous, owned property at 8 Orange Street in New Haven and entered into a contract with the plaintiff on January 31,1985. This agreement, which consisted of a lease and an option to purchase the premises, was recorded on the land records of the city of New Haven. The plaintiff attempted to exercise that option under the terms of the contract but was notified by the defendants that they intended to sell the building to someone else. On August 27,1987, the defendants successfully moved to stay the proceedings claiming arbitration was required under the contract. When the arbitration hearing was held on April 26,1989, and resumed on May 10,1989, the arbitrators declined jurisdiction because the parties could not produce a copy of the contract that was signed by the plaintiff. Without a duly executed contract, the arbitrators could not enforce the arbitration clause.

On April 24, 1989, the defendants filed an answer admitting the existence and terms of the contract but denying that the plaintiff had properly exercised her option to buy. Thereafter, on May 9, 1989, they filed an amended answer, in which they admitted only that they owned the property, but denied or claimed insufficient knowledge or information of the remaining allegations in the complaint. The defendants added noncompliance with the statute of frauds to the existing special defenses of noncompliance with the payment of rent and insurance covenants of the contact, and failure of the plaintiff to exercise her right of first refusal under the terms of the contract when notified that the defendants intended to sell the property to another buyer for a price of $132,000.

The plaintiff, who has acted pro se throughout most of these proceedings, appeared before a trial referee, who dismissed her complaint. The plaintiffs motion to open the judgment was subsequently denied.

The trial court’s sole articulation of its reasons for dismissing the plaintiff’s case was “that is not her signature on the lease on which this suit is based.” The plaintiff alleges, the defendants concede, and we agree, that the absence of her signature does not implicate the statute of frauds as a defense, and it should not have been considered by the court in denying the plaintiff recovery. The defendants, therefore, posit that inconsistency between the plaintiffs complaint and her proof was the basis of the court’s action. The defendants argue that the plaintiff’s theory of recovery required her to prove a duly executed lease. The defendants argue further that because her complaint “does not address part performance, or the fact that the lease may constitute an adequate memorandum,” she may not use these theories to establish her case. We do not agree.

The complaint alleges the existence of an agreement, the terms of the agreement, the exercise of the option to purchase contained in the agreement and the refusal of the defendants to comply with the terms of the agreement. It does not allege that the plaintiff signed the agreement. The complaint does allege that a copy of the lease was annexed to the complaint; the plaintiff alleges that the terms of the annexed written instrument are the terms of the agreement under which she seeks specific performance. There was therefore no material variance between the complaint and the proof as it related to the written instrument, which was the alleged agreement of the parties. Even if a material variance arguably existed between the allegations and proof, the court could at its discretion permit an amendment of the complaint; Practice Book § 178; to allow the proof to conform to those pleadings. See Lawson v. Godfried, 181 Conn. 214, 216, 435 A.2d 15 (1980).

The purpose of the complaint is to put the defendants on notice of the claims made, to limit the issues to be decided, and to prevent surprise. Farrell v. St. Vincent’s Hospital, 203 Conn. 554, 557, 525 A.2d 954 (1987). “Justice is not served by accepting a claim of variance [between allegations and proof] from a party who at all times has been in a position of knowing the true state of facts.” Schaller v. Roadside Inn, Inc., 154 Conn. 61, 67, 221 A.2d 263 (1966). Our Supreme Court has indicated that a minor pleading deficiency, in the absence of surprise or other prejudice, should not be relied on to defeat a cause of action. Giulietti v. Connecticut Ins. Placement Facility, 205 Conn. 424, 434, 534 A.2d 213 (1987).

The plaintiff, by the first count of her complaint, sought not to enforce the lease agreement, but rather to obtain specific performance of the agreement to convey the premises through her exercise of the option to purchase. The defendants could not have been misled or prejudiced by her failure to prove the signature on the lease was hers; that was not an essential element of her cause of action. The defendants were not surprised by the plaintiff’s position because they knew that she had asserted at the arbitration proceeding that her signature on the agreement was not genuine.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       The record discloses that the following transpired: (The plaintiffs married name is Konstandinidis.)
      “The Court: You had a lease for the purchase of the building containing what you say was an option signed by you — signed by you.
      “Mrs. Konstandinidis: The only lease that I have, and I have submitted to the court, and from what I understand the defendants have done so as well, is the release [sic] that you have in your possession. I paid $35,000 with that release [sic],
      “The Court: Did you sign a lease to buy the building and is the lease attached to your complaint, the original complaint? And that lease is dated the twenty-third day of January, 1985, and attached to that lease was a rider and that’s the rider that contains the option. Now, as I understand it from reading the file and allegations and motions heard by Judge Reynolds, you told the arbitrators that that signature on that lease was not yours?
      “Mrs. Konstandinidis: That signature on that lease is not mine.
      “The Court: Is not yours?
      “Mrs. Konstandinidis: But it’s the lease that we agreed on. I don’t know what—
      “The Court: That is not your lease, your signature at all?
      “Mrs. Konstandinidis: I don’t know why that is not my signature, I remember signing a lease and I—
      “The Court: This is the one you brought the suit on and this is not your signature.
      “Mrs. Konstandinidis: Your Honor, I agreed to that lease, I—
      “The Court: No, no, no, you’ve got to answer my questions now, no more nonsense about this. The lease calls for arbitration and you went up to arbitration and you started the proceedings before the arbitrators, and when the lease was put in before the arbitrators you told them that was not your signature, that was a forgery. And so, they discontinued the arbitration because they said we don’t have any authority if that lease is not valid because it was not signed by this plaintiff here, we cannot go forward here because we have no jurisdiction to assume arbitration, there’s no paper signed by the parties agreeing to arbitration. Do you understand that? That’s what they said.
      “And so they threw the arbitration out and then you came back before Judge Reynolds and he ordered the trial to go forward. And now it’s before me and I want it — in the basis of your lawsuit is a lease, a written lease, you have to have a written lease in this state for this kind of a transaction. You’re telling me again that this is not your signature on the lease, is that it?
      “Mrs. Konstandinidis: I’m under oath, Your Honor.
      “The Court: Pardon?
      “Mrs. Konstandinidis: I’m under oath, I have to say the truth.
      “The Court: That is true, okay.
      “Mrs. Konstandinidis: I am telling the truth.
      “The Court: That is the basis of your lawsuit, this piece of paper here that has your name on it in script, but it’s not your signature. You don’t know who wrote it, is that what you’re saying?
      “Mrs. Konstandinidis: No, I don’t.
      “The Court: That’s what you told the arbitrator?
      “Mrs. Konstandinidis: But that is the lease that we agreed on.
      “The Court: That’s what you told the arbitrators and that’s what you’re telling me now, that that is not your signature on there and you don’t know who signed your name there? I’m talking about Angelika Papagorgiou, P-A-P-A-G-O-R-G-I-O-U, that’s not your signature on there, is that what you’re saying, and that’s what you told the arbitrators? Is that so?
      “Mrs. Konstandinidis: That is so.
      “The Court: It is so. Anything you want to say.
      “Mr. Velardi: Yes, Your Honor. I have a transcript of the arbitration proceeding, the original transcript.
      “The Court: She has admitted it. You’ve got a motion to make?
      “Mr. Velardi: Motion to dismiss pursuant to Section 302 of the Connecticut Practice Book for failure to establish a prima facie case.
      “The Court: I’ll grant the motion.
      “Mrs. Konstandinidis: Excuse me, Your Honor.
      “The Court: This is the basis of your lawsuit here.
      “Mrs. Konstandinidis: Your Honor, the courts of Connecticut have held that the defendant is the one that has to sign the lease, I have the case, I will present it to the court. The lease is enforceable by the court of law, there is consideration, there was an offer, there was an acceptance. I have been occupying the property for a period of four years now.
      “The Court: I just granted your motion.
      “Mr. Velardi: Thank you, Your Honor.
      “The Court: You may step down, Ma’am. Judgment may enter for the defendant on the basis of the testimony of this plaintiff that it’s not her signature on the lease on which this suit is based.”

       “[General Statutes] Sec. 52-550. statute of frauds; written agreement or memorandum, (a) No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged: (1) Upon any agreement to charge any executor or administrator, upon a special promise to answer damages out of his own property; (2) against any person upon any special promise to answer for the debt, default or miscarriage of another; (3) upon any agreement made upon consideration of marriage; (4) upon any agreement for the sale of real property or any interest in or concerning real property; or (5) upon any agreement that is not to be performed within one year from the making thereof.
      “(b) This section shall not apply to parol agreements for hiring or leasing real property, or any interest therein, for one year or less, in pursuance of which the leased premises have been or are actually occupied by the lessee, or any person claiming under him, during any part of the term.”

       The defendants did not object on this basis but rather moved to dismiss pursuant to Practice Book § 302 for failure to make out a prima facie case. As pertinent, § 302 provides: “If, on the trial of any issue of fact in a civil action tried to the court, the plaintiff has produced his evidence and rested his cause, the defendant may move for judgment of dismissal, and the court may grant such motion, if in its opinion the plaintiff has failed to make out a prima facie case.” The record does not indicate that the plaintiff had rested.

       Practice Book § 178 provides: “In all cases of any material variance between allegation and proof, an amendment may be permitted at any stage of the trial. If such allegation was made without reasonable excuse, or if the adverse party was actually misled thereby to his prejudice in maintaining his action or defense upon the merits, or if such amendment requires postponement of the trial or additional expense to the adverse party and this is shown to the satisfaction of the court, such amendment shall be made only upon payment of costs or upon such terms as the court may deem proper; but in any other case, without costs. Immaterial variances shall be wholly disregarded.”


author: Per Curiam.

text:
    State of Connecticut v. Charles Burke
    (8824)
    Spallone, Daly and Lavery, Js.
    Argued October 31
    decision released December 4, 1990

      Charles Burke, pro se, the appellant (defendant).

      Leah Hawley, assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and Vicki O’Donnell and Margaret Flynn, deputy assistant state’s attorneys, for the appellee (state).
   Per Curiam.

The defendant appeals from the judgment of conviction, rendered after a jury trial, on three counts of failing to provide a fire alarm system in a rooming house in violation of the Connecticut Fire Safety Code, Chapter 20-3.3.1 and two counts of failing to provide a sleeping room with a door that is self-closing or automatic-closing upon smoke detection in violation of Chapter 20-3.4 of the code. In his numerous claims, the defendant has mounted a wholesale attack against the judicial system of this state including its prosecutors, judges and juries. We are not persuaded by the defendant’s arguments and we affirm the judgment of the trial court.

The jury could reasonably have found the following facts. The defendant is the owner of three rooming houses located in East Hartford. On December 16, 1987, the fire marshal of East Hartford conducted an inspection of these premises pursuant to General Statutes § 29-305 which allows for the inspection of buildings and facilities by local fire marshals. Because the defendant refused to consent to these inspections they were conducted under the authority of administrative search warrants. At the time of the inspection, the defendant could not be located and force was necessary to obtain entry. Several fire safety code violations were discovered at the properties. A letter dated December 18, 1987, was sent to the defendant advising him that the listed violations were mandated to be corrected by December 29,1987. On January 29,1988, the fire marshal conducted a reinspection of the premises in order to determine if the violations were abated. Upon the discovery that certain violations remained uncorrected, the defendant was charged with those uncorrected violations. He was subsequently tried to a jury. Upon conviction, the defendant was sentenced to a total effective sentence of 330 days of incarceration and a $2500 fine. Thereupon, appearing pro se, he brought this appeal.

The defendant claims, inter alia, that General Statutes § 29-305 is unconstitutional because it allows for an administrative search warrant to issue without probable cause; that only the United States Supreme Court has jurisdiction to hear his case; that the jury was unqualified, unfair, partial, and did not understand the supreme law of the land; and that the trial judge was unfair and by his actions “denied justice to the accused.”

A plenary review of the record fails to disclose that the defendant has proven the unconstitutionality of General Statutes § 29-305 beyond a reasonable doubt.

He has failed to overcome the presumption of the constitutionality of validly enacted legislation. See State v. Breton, 212 Conn. 258, 269, 562 A.2d 1060 (1989). Additionally, “[i]t is a settled rule of constitutional adjudication that a court will decide the constitutionality of a statute only as it applies to the particular facts at hand.” State v. Zach, 198 Conn. 168,176, 502 A.2d 896 (1985). A person to whom a statute was constitutionally applied may not challenge that statute on the ground that it may conceivably be applied unconstitutionally to other persons or in other situations not before the court. Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973); United States v. Raines, 362 U.S. 17, 21, 80 S. Ct. 519, 4 L. Ed. 2d 524 (1960); United States v. Smith, 818 F.2d 687, 690 (9th Cir. 1987). Probable cause to issue a warrant to inspect for safety code violation “exist[s] if reasonable legislative or administrative standards for conducting an area inspection are satisfied . . . .” Camara v. Municipal Court, 387 U.S. 523, 538, 87 S. Ct. 1727,18 L. Ed. 2d 930 (1967). Reasonable legislative standards include periodic annual inspections such as those authorized under this statute. Id. General Statutes § 29-305 is constitutional as applied in this case.

Our review of the record, transcripts and briefs in the light of those issues properly before us fails to reveal that the trial court’s rulings were clearly erroneous or that the court abused its discretion. All other claims asserted by the defendant are also without merit.

The judgment is affirmed.

       The defendant has not briefed certain other claims beyond a statement of the claim. These include: an objection “to the citing by the appellee’s attorney of case decisions to support her argument”; whether the issues before the court were moot because the defendant allegedly corrected the violations after his arrest; and that the trial court improperly denied the defendant’s motion for a new trial which was based on newly discovered evidence. Assignments of error that are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court. Bowman v 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 250 n.3, 524 A.2d 610 (1987); State v. Hall, 17 Conn. App. 502, 518 n.8, 554 A.2d 746, cert. granted, 211 Conn. 807, 559 A.2d 1141 (1989).

       “[General Statutes (Rev. to 1987)] Sec. 29-305. inspections by local fire marshals, reports. Each local fire marshal and the state fire marshal, for the purpose of satisfying themselves that all pertinent statutes and regulations are complied with, may inspect in the interests of public safety all buildings and' facilities of public service, all buildings and facilities used for manufacturing and all occupancies regulated by the fire safety code within their respective jurisdictions. Each local fire marshal shall inspect or cause to be inspected, at least once each calendar year and as often as may be necessary in the interests of public safety, all buildings and facilities of public service and all occupancies regulated by the fire safety code within his jurisdiction, and upon receipt by him of information from an authentic source that any other building or facility within his jurisdiction is hazardous to life safety from fire, he shall inspect such building or facility, and in each case shall satisfy himself that all pertinent statutes and regulations are complied with, and shall keep a record of such investigations. Such local fire marshal shall have the right of entry by himself or by his lawful agent at all reasonable hours into or upon any premises within his jurisdiction for the performance of his duties except that occupied dwellings and habitations, exclusive of common use passageways and rooms in tenement houses, hotels and rooming houses, may only be entered for inspections between the hours of 9 a.m. and 5 p.m., except in the event of any emergency requiring his immediate attention for safety to life, or in the interests of public safety. Each local fire marshal shall make a monthly report to the authority from which he received his appointment, and shall be paid for his services in making such inspections of buildings and facilities the compensation agreed upon with such appointing authority.”


text:
    State of Connecticut v. Heriberto Berrios
    (8160)
    Spallone, Lavery and Cretella, Js.
    Argued October 30
    decision released December 4, 1990

      Terry Sablone, with whom, on the brief, was Jeremiah Donovan, special public defender, for the appellant (defendant).

      RichardF. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Linda Howe, assistant state’s attorney, for the appellee (state).
   Spallone, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of the crime of possession of heroin with intent to sell in violation of General Statutes § 21a-277 (a). On appeal, the defendant claims (1) that the prosecutor’s opening argument, coupled with the trial court’s instructions to the jury, deprived him of a fair and unbiased jury, and (2) that the trial court erroneously denied his motion to suppress evidence seized as a result of a search incident to his arrest. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On May 2, 1988, at about 10:30 p.m., Officers Richard Herlihy and John Losak of the Bridgeport police department were on patrol to detect drug transactions in the area of Father Panik Village. Herlihy observed the defendant and a female standing together. The defendant held out in his hand a pink and white envelope which Herlihy recognized as a type commonly used in the packaging of narcotics. The female had in her hand what appeared to be paper currency. When the defendant saw Herlihy approaching, he ran into a nearby building. Herlihy gave chase and apprehended the defendant in a hallway. While another officer detained the defendant, Herlihy looked on the ground where the defendant had been standing. Herlihy found a bundle of white and pink envelopes, similar to the one that he had seen the defendant holding, on the ground about five feet from the defendant. He picked them up and arrested the defendant. At the police station, Losak conducted a custodial search of the defendant which resulted in the discovery of $22 in currency. The white and pink envelopes were inventoried and later tests revealed that they contained heroin.

At trial, the assistant state’s attorney began her opening argument to the jury as follows: “What we have here is a situation that, unfortunately, [is] all too common in the city of Bridgeport and it’s a situation that’s a pretty serious one in terms of how it’s affecting our society, namely, an individual who is at a location engaged in — or about to engage in activity that is ruining our society.”

Upon objection by the defense, the court admonished the jury that “[i]n this argument we’re only concerned with the innocence or guilt of this defendant. We’re not concerned with what goes on in society. . . .What goes on in society that’s been brought out here you can consider but that’s it, as long as it pertains to this gentleman’s innocence or guilt. ...”

After telling the jury to evaluate carefully all the evidence and to render a verdict of not guilty if the facts and law so require, the trial court stated:

“The state of Connecticut and its people, on the other hand, look to you as the sworn officers of this court to deal with this case fairly and firmly and honestly as strong-minded men and women with the interest placed in your hands as an arm of the court to aid and uphold the law of the land by rendering a verdict of guilty if the facts and the law require such a verdict. The state does not desire the conviction of innocent people or of any person whose guilt upon the evidence is in the realm of reasonable doubt. The state is as much concerned in having the innocent person acquitted as having a guilty person punished, but for the safety and well being for the citizens of the state and for the protection of life and property the state is concerned in securing the convictions of persons who have been proven by the evidence to have been found guilty of committing crimes beyond a reasonable doubt.” Upon deliberation, the jury returned a guilty verdict.

The defendant first claims that the prosecutor’s remarks, coupled with the trial court’s instructions, invited the jury to participate in “ameliorating society’s woes” and therefore “encourage[d] the jury to convict the defendant not only for what he had done,” but for what others had done. This claim is without merit. A fair reading of the entire charge in the context of the state’s attorney’s remarks fails to reveal an intentional pattern of misconduct calculated to infringe upon the defendant’s right to a fair trial. See, e.g., State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987); State v. Hawthorne, 176 Conn. 367, 372,407 A.2d 1001 (1978); State v. Wilson-Bey, 21 Conn. App. 162, 171, 572 A.2d 372, cert. denied, 215 Conn. 806, 576 A.2d 537 (1990).

The defendant’s second claim is that the trial court improperly denied his motion to suppress $22 in currency found in his possession during a search conducted incident to his arrest. The defendant claims that the arrest was illegal because it was undertaken without probable cause, that the stationhouse search was a result of the illegal arrest, and that the evidence found by that search, i.e., the $22 in currency, should have been excluded as “fruits” of the illegal arrest. We disagree. Our review of the record, transcripts and briefs establishes that there was ample probable cause for the arrest of the defendant and that the custodial search performed at the police station was legal. See, e.g., State v. Magnotti, 198 Conn. 209, 213-14, 502 A.2d 404 (1985); State v. Holloman, 20 Conn. App. 521, 527-28, 568 A.2d 1052, cert. denied, 214 Conn. 805, 573 A.2d 317 (1990).

The defendant was neither deprived of a fair trial nor was the custodial search of his person illegal.

The judgment is affirmed.

In this opinion the other judges concurred.


author: Norcott, J.

text:
    Rochelle P. Tesler, Executrix (Estate of Michael A. Tesler) v. Gary T. Johnson et al.
    (8718)
    Spallone, Norcott and Landau, Js.
    Argued October 2
    decision released December 11, 1990

      Robert G. Oliver, with whom was John W. O’Meara, for the appellants (named defendant et al.).

      James J. Courtney, with whom, on the brief, was Thomas B. Wilson, for the appellee (plaintiff).
   Norcott, J.

The plaintiff, Rochelle P. Tesler, as executrix of the estate of Michael A. Tesler, instituted this wrongful death action against the defendants Gary Johnson, Randolph T. Johnson and Captain Dick’s Saloon Cafe, Inc., for their alleged wanton and reckless conduct in serving alcohol to an intoxicated person. The defendants appeal from the judgment rendered upon a jury verdict in favor of the plaintiff.

The defendants challenge the trial court’s failure (1) to explain the concept of proximate cause to the jury, and (2) to instruct the jury properly on the calculation of damages for loss of earning capacity. We agree that the trial court improperly instructed the jury on causation and remand for a new trial. Because the second issue raised by the defendants is likely to arise at the new trial, we address it also.

The jury could reasonably have found the following facts. At approximately 2:30 p.m. on February 10, 1986, Howard Branzell arrived at the Finish Line Cafe, a bar in Groton operated by the defendants. Branzell drank at least six beers at the Finish Line before leaving the bar sometime between 5 and 6 p.m.

At approximately 6:30 p.m., Branzell, driving his van on Route 117 in Groton, rear-ended a pickup truck driven by Brian Laliberte. Laliberte noticed that Branzell “looked drunk.” Although the drivers agreed to pull their vehicles to the side of the road, Branzell got back in his van and drove away. Laliberte followed Branzell to Thomas Road, where Branzell “really took off.”

As he was driving south on Thomas Road, Branzell collided head-on with a car driven by Michael Tesler in the northbound lane. Upon arriving at the scene of the accident, Officer Kenneth Kelly of the Groton police department found Branzell standing near his van. Branzell was staggering and smelled of alcohol. His eyes appeared glassy and his speech was slurred. A blood alcohol test performed at approximately 8:50 p.m. revealed that Branzell’s blood alcohol level was then .22 percent. Tesler was taken by helicopter to Hartford Hospital, where he died three days later from the injuries he had sustained in the accident.

I

The defendants claim that the trial court failed to instruct the jury properly on causation. We agree.

In reviewing a challenge to jury instructions, we must examine the charge in its entirety. Preston v. Keith, 20 Conn. App. 656, 662, 570 A.2d 214, cert. granted, 214 Conn. 807, 573 A.2d 320 (1990). Although the instructions need not be “exhaustive, perfect or technically accurate,” they must be “correct in law, adapted to the issues and sufficient for the guidance of the jury.” Castaldo v. D’Eramo, 140 Conn. 88, 94, 98 A.2d 664 (1953). The jury instructions in the present case fail to meet these standards.

At trial, the jurors were instructed that they could find the defendants liable only if their conduct “was a substantial factor in causing the death of Michael Tesler . . . Although the court used the phrase “substantial factor” several times in its charge, those two words comprised the only definition of causation that was heard by the jury. The court referred to “proximate cause” only once, when explaining that the defendants’ liability was limited to those damages “as were proximately caused by the accident in question.”

These instructions, although correct in law, were clearly inadequate to guide the jury through the complex maze of causation. “A legal . . . causal connection between the conduct and the resulting injury is a necessary element of causes of action in . . . recklessness.” Boehm v. Kish, 201 Conn. 385, 390, 517 A.2d 624 (1986); Kowal v. Hofher, 181 Conn. 355, 359-62, 436 A.2d 1 (1980). To be a legal cause, the conduct must be both a cause in fact and a proximate cause of the resulting injury. Doe v. Manheimer, 212 Conn. 748, 757, 563 A.2d 699 (1989). “The test for cause in fact is, simply, would the injury have occurred were it not for the actor’s conduct.” Kowal v. Hofher, supra, 359. A proximate cause is “an act or failure to act which is a substantial factor in producing a result.” Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341, 349, 493 A.2d 184 (1985). “To be factors of this degree they must have continued down to the moment of the damage, ‘or, at least, down to the setting in motion of the final active injurious force which immediately produced (or preceded) the damage.’ ” Mahoney v. Beatman, 110 Conn. 184, 195, 147 A. 762 (1929).

None of these concepts were conveyed to the jury through the trial court’s charge on causation. The court did not explain to the jury the difference between a “cause in fact” and a “proximate cause” ; in fact, these terms were never used by the court in its instructions on causation. Although the court did use the phrase “substantial factor” to describe the required connection between the defendants’ acts and their putative result, that phrase was never defined for the jury. In a case such as this, in which causation is a highly disputed issue, it is paramount that these terms be adequately explained to the jury. The trial court’s failure to do so in the present case, therefore, requires the reversal of its judgment and the remand of this action for a new trial.

II

The defendants also argue that the trial court failed to instruct the jury properly on the calculation of damages for loss of earning capacity. Specifically, the defendants challenge the court’s refusal to charge the jury in accordance with the reasoning of Floyd v. Fruit Industries, Inc., 144 Conn. 659, 136 A.2d 918 (1957), that, in determining such damages, they must make appropriate deductions for necessary personal living expenses and income tax liability. Although we are remanding this case on the first issue presented, we address this issue because it may recur on retrial.

The only information received by the jury regarding Tesler’s loss of earning capacity came from Richard Martin, an economist who testified as an expert witness for the plaintiff. Martin testified that in making his calculations he had deducted both taxes and living expenses from Tesler’s earnings. Martin estimated that, had Tesler pursued a career in computer science, he would have earned $950,800; if Tesler had taken over his father’s business he could have earned $1,367,000.

In its instructions to the jury, the trial court noted that “the plaintiff’s estate is entitled to recover damages for the destruction of the decedent’s capacity to earn money.” The court described the proper calculation of such damages only by referring the jury to Martin’s testimony.

In Floyd v. Fruit Industries, Inc., supra, our Supreme Court first held that any award of damages for loss of earning capacity must be offset by both income tax liability and necessary personal living expenses. In that case, there was a dispute between the parties as to whether and to what extent taxes and living expenses were to be deducted. The court noted that these factors “should, in a proper case, be called to the attention of the jury.” Id., 673. Here, the plaintiff argues that these deductions were adequately submitted to the jury through Martin’s testimony.

The determination of the amount of damages, if any, to be awarded is within the sole province of the jury. Holbrook v. Casazza, 204 Conn. 336, 359, 528 A.2d 774, cert. denied, 484 U.S. 1006,108 S. Ct. 699, 98 L. Ed. 2d 651 (1987). It is also the function of the jury alone to judge the credibility of expert witnesses and the weight to be accorded their testimony. Hartford Federal Savings & Loan Assn. v. Tucker, 196 Conn. 172, 183, 491 A.2d 1084, cert. denied, 474 U.S. 920,106 S. Ct. 250, 88 L. Ed. 2d 258 (1985). In fact, the jury in the present case was specifically instructed that they could accept or reject any part of Martin’s testimony. If they chose to do so, however, the trial court’s charge left them with no guidance as to the calculation of damages for loss of earning capacity. To avoid this peculiar problem, therefore, we now hold that, in wrongful death actions, which require a determination of damages for loss of earning capacity, the jurors must be instructed that, in calculating such damages, they are to subtract probable income taxes and necessary personal living expenses.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       Gerald Knotts and Howard Branzell were also named as defendants in the plaintiffs complaint. The claims against Gerald Knotts were withdrawn before the verdicts. Howard Branzell is not a party to this appeal. Therefore, we refer herein to Gary Johnson, Randolph T. Johnson and Captain Dick’s Saloon Cafe, Inc., as the defendants.

       The defendants properly preserved this claim for appeal both by submitting a request to charge and by taking exception to the charge as given. Practice Book § 852.

       The trial court initially phrased the relevant inquiry as whether the defendants “act[ed] in a manner that amounted to wanton and reckless misconduct in serving Howard Branzell liquor, which conduct was a substantial factor in causing the injuries and death of the plaintiff’s decedent, Michael A. Tesler.” Later in its instructions, the court stated that “[i]f any of [the defendants] acted in that manner which caused or which amounted to wanton and reckless misconduct which was a substantial factor in causing the injuries and death of the plaintiff’s decedent, Michael A. Tesler, then you find against those defendants who are all lumped as one on a verdict form.” Finally, the trial court admonished the jury, “If you do not find that the plaintiff has proven wanton and reckless misconduct which was a substantial factor in causing the death of the plaintiff’s decedent, Michael Tesler, then your verdict must be for these defendants.”

       In noting defense counsel’s objection to this portion of its charge, the trial court explained its failure to use the term “proximate cause” as follows: “I just want to put on the record something that I’ve wanted to do for a long time. I am trying to avoid the use of the words ‘proximate cause’ because jurors always seem to think of approximate and they don’t seem to understand that word, so that’s why I deliberately didn’t use that word. But thank you for giving me the opportunity to mention it.”

       The defendants properly preserved this claim for appeal by taking exception to the appropriate portion of the trial court’s charge. Practice Book § 852.

       The trial court instructed the jury as follows: “[Dr. Martin] testified that he calculated the decedent’s reasonably probable earnings up until the end of his work life expectancy. He then testified that he discounted those figures to their present value and determined what the present value economic loss was, and then he gave two separate figures .... Dr. Martin explained that he arrived at these figures by making use of widely accepted government publications on life expectancies average earnings, economic projections and census data, among others. You are to consider his testimony in arriving at an award for the estate of Michael Tesler for the destruction of his ability to earn a living.”

       When discussing expert testimony, the court charged the jury that “even though they are experts, their testimony and their opinion is subject to review at your hands. In other words, just because they are experts, that doesn’t mean you have to accept their opinions or their testimony.” The court also told the jury that Martin was an expert witness.