author: Dupont, C. J.

text:
    State of Connecticut v. Gregory Chapman
    (7654)
    Dupont, C. J., Spallone and Foti, Js.

      Argued September 21
    decision released November 7, 1989

      David J. Wenc, for the appellant (defendant).

      Jacqueline J. Footman, deputy assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, and Keith DuBoff, assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

The sole issue of this appeal is whether the speedy trial provision of the Connecticut Interstate Agreement on Detainers (IAD), General Statutes § 54-186 et seq., applies to the defendant. The defendant argues that charges pending against him in Connecticut should have been dismissed by the trial court because he was not brought to trial within 180 days of his request for a final disposition of those charges, which were the basis of a detainer lodged against him.

During the first half of 1987, the defendant was sentenced to a term of imprisonment in the state of Georgia. In December, 1987, while incarcerated in Georgia, the defendant was contacted by Connecticut authorities, pursuant to the IAD, about detainers that had been lodged against him. In response, and in compliance with article III of the IAD, the defendant filed a request for final disposition of all charges pending against him in Connecticut. On February 19,1988, the Georgia board of pardons and paroles issued a certificate of conditional transfer, and transferred the defendant to the custody of the state of Connecticut. Subsequently, on November 8, 1988, the court denied the defendant’s motion to dismiss after an evidentiary hearing. The defendant then pleaded nolo contendere to the charges and appealed from the denial of the motion. See Practice Book § 4003 (b).

Article III (a) of General Statutes § 54-186 provides that a person who has requested a final disposition of charges pending against him and who is entitled to the benefits of the statute must be brought to trial within 180 days. Article V (c) of General Statutes § 54-186 provides that if that person is not brought to trial within the time provided, the charges against him shall be dismissed. In order to invoke the protection of article III (a), the defendant must be a person who has entered upon a term of imprisonment that still continues at the time dismissal of the charges is sought. The trial court found that the defendant was not a person serving a term of imprisonment within the meaning of the statute, and that, therefore, he was not entitled to the benefit of the speedy trial provision of the statute.

The defendant argues that the trial court’s conclusion about his status in the state of Georgia was clearly erroneous. He asserts that the language of the conditional certificate of transfer indicates that the defendant was still serving a term of imprisonment in Georgia at the time that he filed his motion to dismiss. He contends that no evidence was presented that he had ever been considered for parole prior to his transfer to Connecticut, and that, according to the certificate, custody would revert to the state of Georgia if he were released prior to February 1,1990. Furthermore, he claims that the trial court’s ruling effectively circumvents the purposes of the IAD.

The state argues that the IAD did not apply to the defendant because he was no longer subject to a term of imprisonment at the time of the hearing on his motion to dismiss.

A primary purpose of the IAD is to foster the rehabilitation of prisoners. State v. Foshay, 12 Conn. App. 1, 11, 530 A.2d 611 (1987). Proponents of the IAD have noted that “the uncertainty and anxiety accompanying outstanding charges often inhibits prisoner response to training programs and thwarts efforts at rehabilitation.” Id., citing United States v. Mauro, 436 U.S. 340, 359, 98 S. Ct. 1834, 56 L. Ed. 2d 329 (1978). If, however, a defendant has no immediate interest in institutional rehabilitation programs because he is no longer serving a term of imprisonment, he is not within the class of defendants that the statute was designed to protect. State v. Foshay, supra, 12-13; see also United States v. Dobson, 585 F.2d 55, 59 (3d Cir.), cert. denied, 439 U.S. 899, 99 S. Ct. 264, 58 L. Ed. 2d 247 (1978); State v. Harris, 14 Conn. App. 244, 249, 540 A.2d 395 (1988).

Several Connecticut cases have discussed the consequences of the status of defendants attempting to invoke the protection of detainer statutes. In State v. Foshay, supra, the defendant’s status as a parolee imprisoned while awaiting a parole revocation hearing was not in dispute. The question, instead, was whether that status entitled the defendant to the protection of the speedy trial provision of General Statutes §§ 54-82c and 54-82d, the intrastate equivalent of the I AD. We found that it did not.

The facts in State v. Harris, supra, also were uncontroverted. The defendant had been serving a prison sentence when a detainer was lodged against him, but he had been released before the 120 day limit of General Statutes § 54-82c had expired. At the time he sought dismissal of the pending charges, he was a pretrial detainee incarcerated in lieu of bond. The question on appeal was whether those facts were sufficient to support a conclusion that the defendant was continuing a term of imprisonment within the meaning of the statute. We determined that the facts did not support that conclusion.

Similarly, other cases involving the IAD have rested, not on a factual dispute, but on whether the trial court erred in its conclusion that the statute applied, or on whether the trial court erred in its interpretation of the language of the statute. See Remick v. Lopes, 203 Conn. 494, 525 A.2d 502 (1987); State v. Braswell, 194 Conn. 297, 481 A.2d 413 (1984), cert. denied, 469 U.S. 1112, 105 S. Ct. 793, 83 L. Ed. 2d 786 (1985).

In the present case, unlike those previously cited, the relevant facts were in dispute in the trial court. The defendant argued that he was a prisoner of the state of Georgia at the time his motion to dismiss was heard, and that he would continue to be subject to a term of imprisonment in Georgia until February 1, 1990. The state argued that the defendant was no longer subject to a term of imprisonment in Georgia at the time of the hearing on his motion to dismiss.

Whether the defendant continued to be subject to a term of imprisonment in Georgia was a question of fact for the trial court to resolve. A question of fact is one to be determined by the trier based upon the conflicting evidence presented at trial. Sweet v. Sweet, 190 Conn. 657, 663, 462 A.2d 1031 (1983). The defendant does not claim that the IAD should have been applied even if he no longer had been serving a prison term at the time of his motion. Instead, he argues that the court should have applied the act because he was continuing a term of imprisonment in Georgia. In short, the defendant does not seek a determination that the court erred in its interpretation of a provision of the IAD, which would be a matter of law; see Parks v. Bourbeau, 193 Conn. 270, 276, 477 A.2d 636 (1984); but seeks review of a factual determination of the court. A factual finding of the trial court should not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record. Practice Book § 4061.

At the hearing on the defendant’s motion to dismiss, the court heard the testimony of the defendant and an inspector with the Connecticut division of criminal justice, and reviewed several documents, including the certificate of conditional transfer from the state of Georgia. The crucial language in the certificate, which was signed by the defendant, is found in the section labeled “Special Conditions.” That section states in part: “If released from custody prior to February 1, 1990 I will contact the Director of Field Operations . . . within three days after my release. This contact will be in person or by phone . . . and will be for purposes of assigning me to a parole officer.” The certificate also contained A list of parole conditions. Although the defendant testified that he had never been involved in any parole proceedings, he also testified that he understood from the terms of the certificate that his only obligation to the state of Georgia upon release from custody prior to February 1,1990, was to call for an assignment to a parole officer.

It is not the function of this court to retry the facts. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). There is ample evidence in the record to support the court’s conclusion that the defendant was no longer serving a Georgia prison term when he filed his motion to dismiss. Thus, the court’s ruling that the defendant could not avail himself of the speedy trial provisions of the IAD was correct, and its denial of the defendant’s motion to dismiss must be upheld.

There is no error.

In this opinion the other judges concurred.

       Article III (a) of General Statutes § 54-186 provides in part: “Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of the imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of Ms imprisonment and Ms request for a final disposition to be made of the indictment, information or complaint . . . .”

       The record is unclear as to the commencement of the sentence and the maximum term of imprisonment.

       The record is unclear as to when the motion to dismiss was filed.

       The charges were burglary in the third degree in violation of General Statutes § 53a-103 and failure to appear in the first degree in violation of General Statutes § 53a-172.

       Article V (c) of General Statutes § 54-186 provides in part: “[I]n the event that an action on the indictment, information or complaint on the basis of which the detainer has been lodged is not brought to trial within the period provided in article III or article IV hereof, the appropriate court of the jurisdiction where the indictment, information or complaint has been pending shall enter an order dismissing the same with prejudice, and any detainer based thereon shall cease to be of any force or effect.”

       In the oral memorandum of decision, the trial court stated: “It’s apparent from the language of the conditional certificate of transfer . . . that whatever Mr. Chapman’s status is, it is not one of an inmate who was transferred from Georgia with the expectation that he be returned to that state after disposition of the charges in Connecticut.”


source: Caselaw Access Project

author: Norcott, J.

license: Public Domain

text:
    State of Connecticut v. Charles D. Janice
    (6773)
    Spallone, O’Connell and Norcott, Js.
    Argued October 4
    decision released November 7, 1989

      William M. Bloss, special public defender, for the appellant (defendant).

      John O’Meara, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Roland Fasano, assistant state’s attorney, for the appellee (state).
   Norcott, J.

The defendant was convicted, after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a). The defendant appeals challenging the denial of his request for a competency evaluation and the denial of his motion to suppress his confession. We find no error.

I

The defendant claims that the trial court erred in denying his request, pursuant to General Statutes § 54-56d (c), for an evaluation to determine his competency to stand trial. Defense counsel’s motion was based upon the defendant’s statement to the court, Hadden, J., during jury selection but outside of the panel’s presence that he would plead guilty, but only if he was assured that he would receive the maximum sentence of twenty years. After Judge Hadden told the defendant that he would not necessarily receive the maximum sentence if he pleaded guilty, the defendant stated that he wanted to proceed to trial. No competency hearing was requested at this time.

On the first day of trial before the court, Quinn, J., but prior to the presentation of evidence, defense counsel moved for the first time that a competency hearing be ordered. This motion was based upon the defendant’s statement before Judge Hadden. Defense counsel claimed that the defendant was not able to assist in his own defense. The defendant then stood before Judge Quinn and ultimately stated, for the second time, that he wanted to receive the maximum sentence.

After a lengthy colloquy, Judge Quinn told the defendant that he was giving reasons to the court why he should not be sentenced to twenty years. To this, the defendant replied, “I am finally getting through to somebody ... I tried my hardest on Friday. . . . I wasn’t trying to put on a crazy role. I was trying to prove to the court [that putting me in prison was not the answer].” After canvassing the defendant, Judge Quinn concluded, “lam satisfied, after talking to this gentleman, that there is no basis for an examination for mental capacity. The young man has expressed himself very, very plainly. He knows what he’s doing.”

A competency hearing should not be available upon demand. State v. Lloyd, 199 Conn. 359, 366, 507 A.2d 992 (1986). “The decision to grant a hearing requires the exercise of sound judicial discretion.” Id. It is the job of the trial judge to examine the facts before him and to determine the need for a hearing. He is in the best position to weigh the evidence and to evaluate the credibility of the defendant. See id.

In this case, Judge Quinn, an experienced criminal trial judge, observed and spoke with the defendant and was aware of that which had transpired before Judge Hadden when the defendant made his first statement. After defense counsel moved for a competency hearing, Judge Quinn spent considerable time and effort canvassing the defendant to determine whether a competency evaluation was warranted. The record reflects that the defendant engaged in an intelligent and articulate dialogue with Judge Quinn. It was, therefore, reasonable for Judge Quinn to conclude that the defendant’s competence to stand trial was not of a questionable nature.

“ ‘[Prisoners are not entitled and need not be permitted to make bald charges of mental incompetency to stand trial for the purpose simply of obtaining an excursion from the penitentiary. . . . A balance must be struck between the practical and the theoretical, and this can best be done by [a trial court.]’ United States v. Miranda, [437 F.2d 1255, 1258-59 (2d Cir. 1977)].” State v. Lloyd, supra, 366.

This court will not disturb a trial court’s ruling absent an abuse of discretion. We find that no such abuse occurred here.

II

The defendant next claims that the trial court erred in denying his motion to suppress his confession to Wethersfield police because (1) the state failed to prove that he voluntarily and intelligently waived his Miranda rights, and (2) his waiver was improperly obtained through promises of leniency by Detective John Salvatore of the Wethersfield police department. The defendant alternatively claims that, even if the waiver was valid, the confession was nonetheless involuntary because Salvatore’s promise of leniency caused him to confess to the commission of a crime in Meriden.

The record reflects that after the police had read the defendant his Miranda warnings, the defendant signed a notice of rights and waiver of those rights. He was then asked if he wanted to make a statement. At that time, the defendant appeared to be coherent and not under the influence of drugs or alcohol. The defendant testified at the suppression hearing that Salvatore had not made any promises to him but had said that he would “do some talking for” the defendant. The defendant, thereafter, confessed to committing a robbery in Meriden. He was subsequently charged with that crime, and his conviction is the subject of this appeal.

A

The defendant first challenges the denial of the suppression of his confession claiming that it was involuntarily given. The court held a full suppression hearing and heard the testimony of both the defendant and Salvatore.

There is no dispute that the defendant received his warnings and signed a waiver. Nonetheless, the defendant claims that he was deceived by Salvatore into believing that he would be treated more leniently, and, therefore, he waived those rights. The essence of the defendant’s claim is that after he was in custody at the Wethersfield police department and had been read his Miranda rights, Salvatore’s statement that he would talk to the prosecutor if the defendant would cooperate constituted a promise of leniency that induced him to waive his rights. After a full hearing, Judge Quinn denied the motion finding that “[tjhere is no doubt in the court’s mind that [tjhe defendant knew what he did, that he understood his rights and signed the statement as to what he did.” The trial court has broad discretion in evaluating the evidence and testimony presented before him. State v. Perry, 195 Conn. 505, 516, 488 A.2d 1256 (1985). We find that the trial court’s ruling was not clearly erroneous, and, therefore, we will not disturb it.

In analyzing the defendant’s claim, this court must take the facts as found by the trial court unless those findings are clearly erroneous. Id. This court cannot retry the facts or reconsider the credibility of witnesses. State v. McCarthy, 197 Conn. 247, 258, 496 A.2d 513 (1985); State v. Perry, supra. On appeal in a case involving the question of voluntariness, however, our “ ‘deference to the trial court’s findings on questions of this nature is qualified by the necessity of an independent examination of the entire record to determine whether the trial court’s findings of voluntariness is supported by substantial evidence.’ ...” (Citation omitted.) State v. Wynter, 19 Conn. App. 654, 658, 564 A.2d 296 (1989). It was reasonable, on the basis of the record, for Judge Quinn to have concluded that the defendant’s waiver was voluntarily and knowingly given.

B

The defendant alternatively argues that his statement should be suppressed because even if his waiver was valid, the confession was involuntary. He claims that the alleged promise of leniency by Salvatore caused him to confess to his criminal activity in Meriden. This claim also must fail.

The Wethersfield police have no jurisdiction over crimes committed in Meriden. Our Supreme Court dealt with a similar factual situation in State v. McCarthy, supra. In that case, the court held that the confession was not coerced since it was reasonable to conclude that any promises by the police in one jurisdiction would have no impact on the defendant’s decision to confess to crimes in other jursidictions. Id., 259.

Here, even though Salvatore might not have explicitly limited his statement concerning leniency to crimes committed within the town, as did the officer in State v. McCarthy, supra, that alone is not enough to render the otherwise voluntary confession involuntary. A statement by a police officer that it would be to a defendant’s benefit for him to cooperate “ ‘falls far short of creating the “compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.” ’ (Emphasis added.)” State v. Perry, supra, 519-20; see also State v. Householder, 7 Conn. App. 1, 10, 507 A.2d 1012 (1986).

It is significant that the court in this case determined that the defendant’s confession was voluntarily given. “ ‘A confession, otherwise freely and voluntarily made, is not vitiated by a promise of leniency unless such promise was the motivating cause of the confession.’ (Citations omitted.) State v. Tardiff, 374 A.2d 598, 601 (Me. 1977).” State v. Perry, supra, 519; see also State v. Falby, 187 Conn. 6, 18, 444 A.2d 213 (1982). Further, a statement by police that the accused’s cooperation will be brought to the attention of the court is not sufficient to render it involuntary. State v. Perry, supra, 520; State v. Householder, supra.

As in Perry, the defendant here was given no assurances that his statement would affect the outcome of the proceedings. State v. Perry, supra, 519. Accordingly, the trial court reasonably found that the defendant’s statement was voluntarily given.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 54-56d (c) provides in pertinent part: “If at any time during the criminal proceeding it appears that the defendant is not competent, counsel for the defendant . . . may request an examination to determine the defendant’s competency.”

        Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).


text:
    Triangle Contractors, Inc. v. Debra M. Young et al.
    (7638)
    Spallone, Daly and Norcott, Js.
    Submitted on briefs October 3
    decision released November 7, 1989

      Frank X. Lo Sacco, pro se, the appellant (defendant), filed a brief.

      George M. Purtill and Sharon H. Purtill filed a brief for the appellee (plaintiff).
   Norcott, J.

The sole issue on appeal is whether the trial court erred in denying the defendant Frank X. Lo Sacco’s “motion for judgment of costs.” This issue arises from a rather complex procedural scenario which bears description.

In 1982, the plaintiff, Triangle Contractors, Inc., successfully brought an action against Debra M. Young, Inc., to collect monies for services rendered on a construction project. Judgment was rendered for the plaintiff, but, to date, the plaintiff has been unsuccessful in satisfying that judgment.

In 1985, Triangle brought the present action against the defendants, Debra M. Young, Inc., Debra M. Young, and Frank X. Lo Sacco, alleging that the previously obtained judgment could not be satisfied because the entirety of the assets of Debra M. Young, Inc., had been transferred to Lo Sacco. On October 11, 1988, Triangle withdrew the action as to the defendant Lo Sacco. Thereafter, Triangle and the other defendants stipulated to judgments.

On November 29,1988, Lo Sacco filed a bill of costs with the court, and, on the next day, he filed a “motion for judgment for costs as to Defendant Frank X. Lo Sacco upon withdrawal by plaintiff.” After a hearing on December 12,1988, the trial court, Fracasse, J., denied the motion. In response to Lo Sacco’s motion for articulation, Judge Fracasse stated that he denied the motion because “there is not such a motion or procedure provided by the rules of practice.” It is from that denial that Lo Sacco now appeals.

To complete the procedural scenario, however, we must also note that, subsequent to the trial court’s denial of his “motion for judgment of costs” and his appeal therefrom, Lo Sacco filed an amended bill of costs with the clerk of the court pursuant to Practice Book § 412. After a hearing held on January 31,1989, the clerk denied Lo Sacco’s motion and ordered no taxation of costs “since there is an appeal pending to the Appellate Court.” Lo Sacco took no appeal from that decision.

Lo Sacco argues that the court erred in denying his motion for judgment of costs. He bases his claim on General Statutes § 52-81 which mandates that, if claimed by him, a judgment for costs be entered upon the withdrawal of an action by the plaintiff. The gravamen of Lo Sacco’s argument rests on the fact that he initially looked to the clerk of the court for his costs, but the clerk directed him to the court. The court then denied his motion and, in effect, returned him to the clerk. Lo Sacco appealed the trial court’s denial and the clerk, in turn, denied him costs because of the pending appeal. The essence of Lo Sacco’s argument is that in light of this procedural maze he was wrongfully denied his statutorily mandated reimbursement of costs.

This appeal exposes an unresolved gray area of procedure between the rules of practice and the General Statutes. The right to costs must be based on some statute or authorized rule of the court. Condon v. Pomroy-Grace, 73 Conn. 607, 614, 48 A. 756 (1901); see also Bridgeport Gas Co. v. United Mine Workers, 21 Conn. Sup. 331, 154 A.2d 530 (1959). General Statutes § 52-81 authorizes the taxation of costs in favor of a party against whom any civil action has been withdrawn. Indeed, the statutory language mandates the allowance of costs upon withdrawal.

Alternatively, Practice Book § 412 establishes the general procedure for the taxation of costs. That procedure requires that the taxation of costs in civil cases begin with action by the court clerk. “Only after the clerk has given notice to the adverse party to be present and has proceeded to tax costs does the rule provide for appeal of that taxation to the trial court.” (E. O’Connell, J., dissenting). Birmingham v. Kielczewski, 17 Conn. App. 219, 224, 551 A.2d 1260 (1988). This general procedure applies in a civil action where there is a prevailing party in whose favor a decision or verdict is rendered and judgment entered.

Lo Sacco argues that the statutory language of General Statutes § 52-81, which mandates the taxation of costs upon withdrawal of an action, does not require that he follow the procedures specified in Practice Book § 412. We disagree.

Notwithstanding the fact that judges and not clerks “render” judgments, to be consistent with our rules of practice the pertinent language of General Statutes § 52-81 must be interpreted so as to require the party against whom an action has been withdrawn to follow the procedures of Practice Book § 412. Under that provision, the clerk acts as an agent of the court. Should there be no resulting appeal, the clerk’s action will become a part of the trial court’s judgment in the matter.

While the clerk has no discretion to order the taxation of the costs, the amount of the costs might well be contested at a hearing before the clerk. An appeal from that decision would lie in the trial court. See Practice Book § 412; Krawiec v. Kraft, 163 Conn. 445, 447-48, 311 A.2d 82 (1972); Hall v. Hall, 36 Conn. Sup. 15, 16, 409 A.2d 1250 (1979). Should the clerk refuse to tax any costs pursuant to General Statutes § 52-81, “the remedy is a petition to the court to order the clerk to perform an act as required by law. State v. Crabtree, 32 Conn. Sup. 322, 323, 353 A.2d 796 (1975); Gordan v. New Haven, 5 Conn. Sup. 292, 293 (1937); see Shaker v. Shaker, 12 Conn. Sup. 197, 198 (1943); 2 E. Stephenson, Connecticut Civil Procedure (2d Ed.) § 312e.” Birmingham v. Kielczewski, supra, 223-24 n.3.

In the present case, the trial court did not err in refusing to allow Lo Sacco, in effect, to bypass the procedures of Practice Book § 412 and create a new procedure that cannot be found in our rules of practice. The court’s denial of Lo Sacco’s “motion for judgment of costs upon withdrawal” created an appealable order; see Wildman v. Munger, 70 Conn. 380, 382, 39 A. 599 (1898); that has allowed this court to clarify the procedure for the taxation of costs upon the withdrawal of an action.

We conclude that our decision to confine the remedy of seeking costs upon withdrawal exclusively to the confines of Practice Book § 412, (1) relieves the trial court of a duty that the clerk, as an arm of the court, provides routinely in other nonwithdrawal civil cases, and (2) keeps the administration of the taxation of all costs consistently within one office. Our decision today neither works any injustice nor imposes any unnecessary burden on any party. Rather, it is within the spirit of Practice Book § 6 to allow for the liberal interpretation of our rules of practice which have been designed to “facilitate business and advance justice.”

There is no error.

In this opinion the other judges concurred.

       Practice Book § 412 provides: “Bills of costs in civil cases may be taxed by the clerk or assistant clerk, but reasonable notice shall be given to the adverse party, or his attorney, to be present at the taxation, if the appearance of such party be entered on the docket. Either party may appeal from such taxation to the court.”

       The appeal referred to here is Lo Sacco’s appeal of the denial by the trial court, Fracasse, J., of his motion for judgment of costs.

       General Statutes § 52-81 provides: “Upon the withdrawal of any civil action after it has been returned to court and entered upon the docket, and after an appearance has been entered for the defendant, a judgment for costs, if claimed by him, shall be rendered in his favor, but not otherwise. Judgment for costs shall not be rendered after the expiration of six months from the date of the withdrawal and no costs may be allowed which accrued after actual notice in writing of the withdrawal and no costs may be allowed which accrued after actual notice in writing of the withdrawal was given by the plaintiff to the defendant or his attorney, unless good reason therefor is shown to the court.”

       See 2 E. Stephenson, Connecticut Civil Procedure (2d. Ed.) §§ 302a and 312, regarding the complete procedure for taxation of costs.

       In the present case, there does, in fact, seem to be a dispute as to the appropriate amount of costs.

       Practice Book § 6 provides: “The design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice.”

       We note again that the clerk to whom the defendant submitted the “Amended Bill of Costs” denied the costs on the basis of the pendency of this present appeal. With the resolution of this appeal, it is evidently incumbent upon the clerk to process Lo Sacco’s bill of costs in a manner that comports with this decision, the rules of practice and the General Statutes.


author: O’Connell, J.

text:
    Southport Manor Convalescent Center, Inc., et al. v. Brian Foley
    (7548)
    Daly, O’Connell and Norcott, Js.

      Argued September 13
    decision released November 14, 1989

      Dion W. Moore, with whom were James T. Shearin and, on the brief, Dwight F. Fanton, for the appellants (plaintiffs).

      Jeanine M. Dumont, with whom, on the brief, were Louis R. Pepe and James G. Green, for the appellee (defendant).
   O’Connell, J.

The plaintiffs appeal from the trial court’s judgment granting the defendant’s motion to dismiss. This is the third time that this court has been called upon to review various aspects of the underlying dispute. The genesis of this litigation lies in a contract in which the plaintiffs in this action, the Southport Manor Convalescent Center and its president, agreed to convey a nursing home located in Fairfield to Brian J. Foley, the defendant. The details of this contract are set out in Foley v. Southport Manor Convalescent Center, Inc., 11 Conn. App. 530, 532, 528 A.2d 841 (1987), cert. denied, 205 Conn. 805, 531 A.2d 935 (1987) (Foley I). The next appeal concerned problems relating to a supplemental judgment and is detailed in Foley v. Southport Manor Convalescent Center, Inc., 19 Conn. App. 239, 561 A.2d 978 (1989) (Foley II). In the present case, Foley III, the plaintiffs seek a declaratory judgment. At least one other action has been spawned by the underlying facts and is now pending in the trial court.

This abundance of litigation produced a convoluted and tautological statement of facts. For the sake of clarity, however, we will start with a bare bones recital of those facts necessary to resolve the issue before us. Additional facts are included as necessary in our analysis.

The plaintiffs laid the foundation for the current issue when they brought an action for a declaratory judgment in the judicial district of Stamford-Norwalk. The defendant filed a motion to dismiss, the grounds for which are irrelevant here. On November 12,1987, the court, Gerety, J., granted the motion on the ground that the plaintiffs had failed to file a memorandum of law in opposition at least five days before the motion was to be argued. Practice Book § 143; Burton v. Planning Commission, 209 Conn. 609, 614, 553 A.2d 161 (1989); Hughes v. Bemer, 200 Conn. 400, 402, 510 A.2d 992 (1986) (Hughes I). The plaintiffs did not appeal Judge Gerety’s decision but instead commenced an identical action in the judicial district of Fairfield. The defendant again moved to dismiss, this time on the ground that Judge Gerety’s dismissal of the first action barred the second suit because of the doctrine of res judicata. The court, Melville, J., agreed and granted the motion. It is from that judgment that the plaintiffs appeal.

The plaintiffs claim that Judge Gerety’s decision dismissing the first suit does not bar this action because the judge raised, sua sponte, the requirement of Practice Book § 143 after the defendant had orally waived it. They also assert that the dismissal was based on purely technical grounds and therefore cannot be considered to be a judgment on the merits. Thus, the dis-positive issue is whether a dismissal for failure to file a timely opposition memorandum amounts to a judgment on the merits that bars relitigation because of res judicata. We conclude that it does and find no error.

At all times relevant to this case, Practice Book § 143 required that a memorandum in opposition to a motion to dismiss be filed “at least five days before the motion is to be considered on the short calendar,” and, if a party failed to file such a memorandum in a timely manner, it “shall be deemed by the court to have consented to the granting of the motion.” Our Supreme Court has clearly indicated that such a judgment, “though not necessarily a determination on the merits, is nevertheless a final judgment whose issues are thereafter res judicata as between the parties.” Hughes v. Bemer, 206 Conn. 491, 495, 538 A.2d 703 (1988) (Hughes II). We recognize that Hughes II interpreted Practice Book § 155. Its analysis, however, applies equally to the identical language of § 143. Burton v. Planning Commission, supra.

The plaintiffs claim that Judge Gerety erred by raising the five day memorandum rule sua sponte, particularly in view of the defendant’s specific oral waiver of the five day requirement. The validity of Judge Gerety’s decision, including the propriety of raising the five day requirement sua sponte, is not before us. See Lo Sacco v. Young, 210 Conn. 503, 555 A.2d 986 (1989) (where the issue of waiver was properly raised). Since the plaintiffs failed to take a timely appeal from Judge Gerety’s decision it became final and binding upon them. Practice Book § 4009.

The plaintiffs point out that, prior to Judge Melville’s dismissal, an identical motion to dismiss had been denied by the court, Stodolink, J. It is well established that a “judge should hesitate to change his own rulings in a case and should be even more reluctant to overrule those of another judge.” Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982). The plaintiffs, however, rely too heavily on Breen. The law does not prohibit a judge from rendering a decision contrary to that of a predecessor if the matter comes before him in the regular course of judicial proceedings, and he is convinced that the law applied by the earlier judge was clearly erroneous. Id., 100. In the time between Judge Stodolink’s decision and Judge Melville’s decision, our Supreme Court decided Hughes II, supra. Judge Stodolink applied the law as it existed at the time of his decision and Judge Melville decided the motion based upon the law as clarified by Hughes II.

We recognize that the defendant waived the benefit of § 143 and did not rely upon it in the trial court. That fact, however, did not relieve the trial court of its duty to dismiss the case for want of compliance with § 143. Blonder v. Hartford Helicopters, Inc., 209 Conn. 618, 620, 552 A.2d 427 (1989).

Dismissal pursuant to § 143 is not a technical matter of form. Hughes II, supra, 495. When the required memorandum of law is not timely filed, the plaintiffs are deemed to have consented to the granting of the motion to dismiss, and the resulting judgment has the same effect as if the case had been tried on its merits. Accordingly, Judge Gerety’s dismissal under § 143 created a proper res judicata defense, and therefore the plaintiffs are barred from reinstituting their action.

There is no error.

In this opinion the other judges concurred.

       The parties have, at different times, reversed roles in this litigation.

        Foley v. Huntington, Superior Court for the judicial district of Fairfield, Docket No. CV 87-0246145S (pending).

       Practice Book §§ 143 and 155 have been amended so that a party who files an untimely memorandum is no longer deemed to consent to the granting of a motion made under either section. The amendments took effect on October 1,1989. Judge Gerety’s decision became final on December 7, 1987, when the twenty day appeal period expired. Practice Book § 4009. “After the rendition of judgment, an action is no longer ‘pending’ ” Schenck v. Pelkey, 176 Conn. 245, 251, 405 A.2d 665 (1978). Accordingly, the changes in the rules of practice have no effect on Judge Gerety’s decision.

       See footnote 3, supra.

       We do not imply that a change in the law is necessary for a second judge not to be bound by a decision of another judge at an earlier stage of the proceedings. See Breen v. Phelps, 186 Conn. 86, 100, 439 A.2d 1066 (1982).


author: Per Curiam.

text:
    In re Christine A. et al.

    (6507)
    Daly, Norcott and Foti, Js.
    Argued October 10
    decision released November 14, 1989

      Sara R. Martin, for the appellant (respondent mother).

      Judith Merrill Earl, assistant attorney general, with whom were Susan T. Pearlman, assistant attorney general, and, on the brief, ClarimNardi Riddle, attorney general, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 2026, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court..

   Per Curiam.

The respondent mother appeals from the judgment of the trial court terminating her parental rights, pursuant to General Statutes § 17-43a, with respect to her two minor children, Christine and Martha A., born March 14, 1971, and April 11, 1978, respectively. She claims that the trial court erred in concluding that there was sufficient evidentiary support for its findings (1) that the respondent failed to demonstrate that she had been personally rehabilitated to the extent that she would be able to assume, within a reasonable time, a responsible position in the lives of her children and (2) that, by her acts of commission or omission, she had denied the children the care, guidance or control necessary for their physical, educational, moral or emotional well-being. We disagree and find no error.

The facts relevant to this appeal are undisputed. In July, 1984, the minor girls, Christine and Martha A., were adjudicated uncared for and committed to the department of children and youth servies (DCYS) after their father was arrested for sexually abusing Christine. The respondent mother was homeless at that time and living with friends for as long as they would allow, then moving on. She subsequently became involved, pursuant to the advice of DCYS, with sporadic and unsuccessful attempts at outpatient therapy at the Connecticut Mental Health Center and the Hospital of St. Raphael. The girls have been in foster care since April, 1984.

On October 6,1986, DCYS filed petitions, pursuant to General Statutes § 17-43a (b), to terminate the parental rights of the respondents. The father, who was incarcerated at the time, consented to the termination. After a full hearing on September 21, 1987, the trial court terminated the parental rights of the mother as well.

The essence of the respondent’s appeal is that the evidence presented to and relied upon by the trial court to support its findings was insufficient. Our role on review is solely “to determine whether the trial court’s conclusion was legally correct and factually supported. In re Shavoughn K., 13 Conn. App. 91, 98, 534 A.2d 1243 (1987), cert. denied, 207 Conn. 805, 540 A.2d 374 (1988); In re James T., 9 Conn. App. 608, 617, 520 A.2d 644 (1987).” In re Davon M., 16 Conn. App. 693, 696, 548 A.2d 1350 (1988).

Both parties concede that the trial court filed a complete and legally sound memorandum of decision incorporating the facts found and setting forth legal conclusions made in conformity with the applicable law. We conclude that the legal conclusions found therein are correct and factually supported.

There is no error.

       We note that as of the date of oral argument in this appeal Christine A. had reached the age of eighteen.

       General Statutes § 17-43a (b) (2) provides in pertinent part that the trial court may grant a petition to terminate parental rights if it finds, upon clear and convincing evidence, that “the parents of a child who has been found by the superior court to have been neglected or uncared for in a prior proceeding have failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, they could assume a responsible position in the life of the child . . . .”
      In determining whether termination of parental rights is warranted, the trial court must comply with the requirements of General Statutes § 17-43a (d) which provides: “the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered or provided to the parent and the child by an agency to facilitate the reunion of the child with the parent; (2) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order; (3) the feelings and emotional ties of the child with respect to his parents, any guardian of his person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties; (4) the age of the child; (5) the efforts the parent has made to adjust his circumstances, conduct, or conditions to make it in the best interest of the child to return him to his home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child; and (6) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent.”


author: Daly, J.

text:
    Marilyn Sheridan v. Board of Education of the Town of New Fairfield
    (7616)
    Spallone, Daly and O’Connell, Js.
    Argued September 14
    decision released November 14, 1989

      William M. Laviano, for the appellant (plaintiff).

      William H. Narwold, with whom were Karen L. Goldthwaite and Jay E. Bovilsky, for the appellee (defendant).
   Daly, J.

The plaintiff appeals from the granting of the defendant’s motion for summary judgment. The plaintiff claims that the court erred (1) in denying the plaintiff’s motion to strike or stay the motion for summary judgment, and (2) in finding that no genuine issues of fact existed to preclude the granting of the motion for summary judgment. We find no error.

The following facts are relevant to the disposition of this appeal. In July, 1985, the defendant New Fairfield board of education sent a letter to the plaintiff, Marilyn Sheridan, offering her a position as an English teacher at New Fairfield High School beginning September 1, 1985, and terminating June 30, 1986. The letter made it clear that the teaching position might not be renewed for another school year because the plaintiff would be replacing a teacher on a one year temporary assignment who would be returning the following year. The plaintiff accepted the offer, and the parties executed two additional documents in connection with that agreement. The first document was the Teacher’s Annual Salary Agreement, which stated that the plaintiff was to receive a salary for the school year beginning September 1, 1985, and ending June 30, 1986. The second document was the Teacher’s Initial Contract, which stated that the plaintiff was to be employed for the school year beginning September 1, 1985, and ending June 30, 1986. In accordance with General Statutes § 10-151, the Teacher’s Initial Contract further stated (1) that the contract would be renewed annually by operation of law during the period of the plaintiff’s first three years of continuous employment, unless the teacher was notified in writing prior to April first in one school year that the contract would not be renewed for the following school year, and (2) that the teacher may, upon written request filed with the board within ten days of receipt of any notice from the board of its intention to terminate or not renew the contract, be entitled to a hearing before the board and the reason or reasons for the termination or the nonrenewal of the contract would be communicated at that hearing.

The plaintiff commenced employment. At some time before March 1, 1986, the plaintiff refused to accept a late term paper submitted by the son of the chairman of the New Fairfield board of education. Also before March 1, the plaintiff held an ethics discussion on bribery after a student had asked her a hypothetical question as to what she would do if a student offered her a bribe to accept a late term paper. The plaintiff claims that this “hypothetical question” was interpreted by a powerful member of the board of education to mean that the plaintiff had falsely accused the chairman’s son of offering the plaintiff a bribe to accept a late term paper. These two events, in conjunction with the plaintiff’s third allegation that, in August, 1986, she was told that she would not be rehired because a powerful member of the board was blackballing her, formed the basis for the plaintiff’s claim that she was terminated or discharged in August, 1986, in violation of General Statutes § 31-51q.

By letter dated March 12,1986, the superintendent of schools for the New Fairfield public school system advised the plaintiff that he would recommend to the board that it not renew her contract at the board’s next meeting on March 20,1986. At the meeting, the board voted not to renew the plaintiff’s contract for the following school year and, as required by the Teacher’s Initial Contract, apprised her of this decision in a letter dated March 21, 1986. At that time, the plaintiff did not pursue her right to a hearing under General Statutes § 10-151 (c). On June 30,1986, the plaintiff’s Annual Salary Agreement and her Teacher’s Initial Contract expired, and her salary and benefits were terminated.

In August, 1986, a position became available in the New Fairfield school system in the plaintiff’s teaching field. The plaintiff and several other candidates were considered for the position, but the plaintiff was not hired. On August 29,1986, after the plaintiff had been notified that she had not been selected for the position, she requested a hearing before the board regarding its decision not to rehire her for the 1986-1987 school year. The board denied her request on the ground that the plaintiff had only been entitled to such a hearing in March, 1986, when the board had voted not to renew her contract.

In May, 1987, the plaintiff began this suit in federal court alleging numerous causes of action, including the pendent state claim that she was dismissed from her teaching position for exercising her first amendment rights in violation of General Statutes § 31-51q. This claim was made against the named defendant and against the chairman of the New Fairfield board of education. In August, 1987, the plaintiff allowed the case to be dismissed without prejudice. In January, 1988, the plaintiff reinstituted her claim in state court, and the defendant had the case removed to federal court. The defendants then filed and were granted dismissal of all claims against the chairman, and dismissal of three counts against the named defendant.

In May, 1988, while the case was in federal court, the plaintiff filed discovery requests directed at the board. Later that month, the case was remanded back to state court after the federal court ordered that the plaintiffs 42 U.S.C. § 1983 claim be withdrawn with prejudice. The only remaining count was the claim based on wrongful discharge from employment in violation of General Statutes § 31-51q.

In August, 1988, the defendant filed a motion for summary judgment on the remaining count arguing that the plaintiff was not an “employee” within the meaning of General Statutes § 31-51q. Alternatively, the defendant argued that, even if the plaintiff was an employee, she had not been “discharged or disciplined” in retaliation for the exercise of her first amendment rights. In response, the plaintiff moved to strike or stay the motion for summary judgment pursuant to Practice Book § 231 because the defendant had never responded to her earlier discovery requests. The defendant filed a timely motion in opposition to the plaintiffs motion. In court, the defendant’s counsel pointed out that Practice Book § 382 sets forth the proper procedure for opposing a motion for summary-judgment and the plaintiff subsequently agreed. The court then continued the hearing on the motion for summary judgment until September 19,1988, and ordered that the plaintiff’s counsel file supporting affidavits and a brief in support of her motion to stay or strike by September 16. The plaintiff’s counsel filed neither a brief in support of her motion nor affidavits by the specified date. The court then denied the plaintiff’s motion.

The court considered the motion for summary judgment on September 26, 1988. On that day, the court was presented with the plaintiff’s untimely memorandum in support of her motion to strike or stay, along with two untimely affidavits pursuant to Practice Book § 382 that were filed by the plaintiff and her attorney. These documents had been filed on September 23, 1988. The court treated these late documents as an opposition to the summary judgment since the plaintiff’s motion to strike or stay the motion for summary judgment already had been denied.

The court denied the motion for summary judgment as to the ground that the plaintiff was not an employee, because the alleged ethics discussion had occurred while she was employed. The court then granted the motion for summary judgment determining that there were no genuine issues of material fact to support the plaintiff’s claim that she had been discharged or disciplined in violation of General Statutes § 31-51q in August, 1986, based on her discussion in class of the ethics of a teacher’s taking a bribe, and that the other two events did not come within the purview of the statute. In concluding that summary judgment should be granted, the court found that the defendant had met its burden because (1) the documents submitted by the defendant supported the defendant’s claim that the plaintiff initially had been hired as a temporary replacement for another teacher, and (2) the defendant properly and timely advised the plaintiff that her contract would not be renewed and therefore her status as employee terminated on June 30.

The plaintiff’s first claim of error is that the trial court abused its discretion when it denied her motion to strike or stay the motion for summary judgment. Specifically, the plaintiff asserts that she was unable to respond to the defendant’s affidavits in support of its motion for summary judgment because of the defendant’s failure to respond to her discovery requests, and that the trial court abused its discretion by not granting a continuance or denial of the defendant’s motion for summary judgment for this reason.

In Plouffe v. New York, N.H. & H.R. Co., 160 Conn. 482, 490, 280 A.2d 359 (1971), our Supreme Court determined that the trial court had abused its discretion when it refused to grant a reasonable continuance to allow the plaintiff to investigate the truth of the facts alleged in the defendant’s affidavit and to research the legal issues in a personal injury action. In that case, the court adopted the following principle, derived from summary judgment under the federal rules of civil procedure: “ ‘Where, however, the party opposing summary judgment timely presents his affidavit under Rule 56 (f) stating reasons why he is presently unable to proffer evidentiary affidavits he directly and forthrightly invokes the trial court’s discretion. Unless dilatory or lacking in merit, the motion should be liberally treated. Exercising a sound discretion, the trial court then determines whether the stated reasons are adequate. And absent abuse of discretion, the trial court’s determination will not be interfered with by the appellate court.’ ” (Emphasis added.) Id.

Applying the principle set forth in Plouffe to the present case, a different result is clearly warranted. The record reveals that the plaintiff failed to provide a memorandum in support of her motion and failed to provide any explanatory affidavits pursuant to Practice Book § 382 in the time specified by the trial court. Unlike Plouffe, the plaintiff in the present case failed to comply with § 382 in a timely manner, and that lack of diligence is fatal to her claim. Because the plaintiff did not timely comply with the requirements of § 382, we cannot say that the trial court abused its discretion.

Even if the court’s denial of the motion to strike or stay the summary judgment amounted to a denial of a request for discovery, as the plaintiff argues, the court did not abuse its discretion. “The granting or denial of a discovery request rests in the sound discretion* of the court.” Standard Tallow Corporation v. Jowdy, 190 Conn. 48, 57, 459 A.2d 503 (1983). For the reasons set forth in the previous paragraph, the trial court did not abuse its discretion in denying the plaintiff’s motion.

The plaintiff’s next claim of error pertains to the trial court’s granting of the summary judgment. The dis-positive issue on appeal is whether there was a genuine issue of material fact as to when the plaintiff was terminated or discharged from her employment. The plaintiff asserts that the affidavits and the pleadings she submitted provided sufficient evidence for the creation of a genuine issue as to whether termination or discharge had occurred in August, rather than in June, and thus may have occurred because of a violation of General Statutes § 31-51q as alleged in her complaint.

“A summary judgment shall be rendered if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is thus entitled to judgment as a matter of law. Practice Book § 384; Yanow v. Teal Industries, Inc. 178 Conn. 262, 268, 422 A.2d 311 (1979).” Telesco v. Telesco, 187 Conn. 715, 718, 447 A.2d 752 (1982); see also Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). Our Supreme Court has stated that the genuine issue aspect of summary judgment “requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred. Note, 48 Colum. L. Rev. 780, 781; see Dewey v. Clark, 180 F.2d 766, 772 (D.C. Cir. [1950]); Whitaker v. Coleman, 115 F.2d 305, 306, 307 (5th Cir. [1940]).” United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378-79, 260 A.2d 596 (1969). “The test of the requirement for the granting of a summary judgment that the moving party be entitled to judgment as a matter of law is resolved by applying to the established facts the same criteria as used in determining whether a party would be entitled to a directed verdict on the same facts. . . . In Connecticut, a directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed. Vuono v. Eldred, 155 Conn. 704, 705, 236 A.2d 470 [1967]; Engengro v. New Haven Gas Co., 152 Conn. 513, 516, 209 A.2d 174.” (Citations omitted.) United Oil Co. v. Urban Redevelopment Commission, supra, 380.

Applying those principles and that test to the pleadings, affidavits, and exhibits in the present case, we agree with the trial court’s finding that no genuine issue existed as to when the plaintiff’s employment was terminated. The defendant presented substantial evidence that the employment contract ran until June 30 and was continued for the next school year only if no notice was sent before April 1. The defendant demonstrated with proper evidence that notice of the nonrenewal of the plaintiffs contract was given in a timely manner, and that the plaintiff did not timely appeal the non-renewal. The defendant thus met its burden of showing the nonexistence of a genuine issue regarding the date of the plaintiffs termination. See State v. Goggin, 208 Conn. 606, 615, 546 A.2d 250 (1988).

The plaintiff attempted to show that the June termination was rescinded when she was reconsidered for a position after June and that she was subsequently terminated or discharged in August allegedly because of the “blackballing” that was based on a misinterpreted ethics discussion, or the refusal to accept a late term paper which resulted in a failing grade. The plaintiff’s evidence is insufficient. The hearsay statements that the plaintiff offered in an attempt to show that the termination occurred in August are inadmissible evidence pursuant to Practice Book § 381. That section provides that “[supporting and opposing affidavits shall be made on personal knowledge, shall set forth facts as would be admissible in evidence . . . .’’The remaining admissible evidence regarding the date of the termination is composed of “ ‘[m]ere assertions of fact . . . [that] are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § 380.’ ” State v. Goggin, supra, 616, quoting Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984).

Because the plaintiff was not employed in August, she cannot claim that she was discharged at that time in violation of General Statutes § 31-51q. In view of this conclusion, we need not reach the issue of whether any one of the plaintiffs three allegations were actionable as a violation of General Statutes § 31-51q. The trial court properly concluded that no genuine issue existed as to the date of the termination or discharge and, accordingly, summary judgment was properly granted.

There is no error.

In this opinion the other judges concurred.

       There originally were two defendants. The second defendant was the chairman of the New Fairfield board of education.

       General Statutes § 31-51q provides in pertinent part: “Any employer, including the state and any instrumentality or political subdivision thereof, who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution . . . shall be liable to such employee for damages caused by such discipline or discharge . . .

       Practice Book § 231 provides in relevant part: “If any party has failed to answer interrogatories . . . the court may, on motion, make such order as the ends of justice require.”

       Practice Book § 382 provides: “Should it appear from the affidavits of a party opposing the [summary judgment] motion that he cannot, for reasons stated, present facts essential to justify his opposition, the court may deny the motion for judgment or may order a continuance to permit affidavits to be obtained or discovery to be had or make such other order as is just.”


author: Lavery, J.

text:
    State of Connecticut v. Billy Tappin
    (7075)
    Borden, Spallone and Lavery, Js.
    Argued September 14
    decision released November 21, 1989

      Kathleen S. Mass, with whom, on the brief, was Daniel A. Lyons, Jr., for the appellant (defendant).

      Carolyn K. Longstreth, assistant state’s attorney, with whom were Michael Pepper, assistant state’s attorney, and, on the brief, Michael Dearington, state’s attorney, for the appellee (state).
   Lavery, J.

The defendant appeals from the judgment of conviction, after a jury trial, of possession of a narcotic substance in violation of General Statutes § 2 la-279 (a). The defendant claims that the trial court erred (1) in failing to compel the state to articulate a nondiscriminatory reason for its peremptory challenge of a black venireperson, and (2) in omitting from its rereading to the jury of its charge on reasonable doubt several crucial instructions, thereby diluting the state’s burden of proof. We find no error.

I

The defendant first claims that the trial court’s failure to compel the state to articulate a nondiscriminatory reason for its peremptory challenge of a black venireperson violated his state and federal constitutional rights to equal protection and an impartial jury. U.S. Const., amend. VI, XIV; Conn. Const. art. I, §§ 8, 20. We disagree.

Of the thirty-three venirepersons voir dired, six jurors and two alternates were chosen, and thirteen venirepersons were excused by the court, eight by the defendant and four by the state. The state asked the same questions of each venireperson. After eliciting background information, the prosecutor asked each venireperson whether he or she believed society suffers from a drug problem, whether he or she would be influenced by the quantity rather than the quality of the testimony, and whether he or she would be able to be fair to both sides, follow the court’s instructions and vote for a verdict of guilty or not guilty according to the evidence.

From our review of the transcripts it appears that each of the first nine panelists responded to these and similar questions in a straightforward and unequivocal manner. The tenth venireperson was challenged by the state. Immediately thereafter, the following colloquy took place:

“The Court: First challenge for the state?
“[State’s Attorney]: Yes, Your Honor.
“The Court: The court will take a short recess.

“[Defense Counsel]: Your Honor, I don’t know how many panelists we’ve had for voir dire, it’s quite a few. I’ve lost count.

“The Court: That’s number ten.

“[Defense Counsel]: Number ten, and the state has not exercised any challenges thus far and [this venireperson] was the first black panelist to be subject to a voir dire and it was the first man against which the state has exercised the challenge. Now, when [the state’s attorney] was engaging in a voir dire with [this venireperson], I took very good notes about the responses that [he] gave to [the state’s attorney]. The responses by and large were no different than most of the responses given to [the state’s attorney] by all of the white panelists and in accordance with the most recent Supreme Court opinion on this issue I move this court for a hearing that [the state’s attorney] be put under oath and made to—

“The Court: Motion denied. Recess.”

Although it has been well settled for over a century that the systematic exclusion of otherwise qualified citizens from jury service on account of race violates the equal protection clause of the fourteenth amendment; Strauder v. West Virginia, 100 U.S. 303, 25 L. Ed. 664 (1880); until recently, criminal defendants were unable to challenge effectively the state’s use of peremptory challenges for discriminatory purposes in specific cases. See Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965) (equal protection violation shown only where discriminatory use of peremptory challenges is evident in case after case, whatever the circumstance). In 1986, the Supreme Court, in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), overruled Swain v. Alabama, supra, and held that the discriminatory use of a peremptory challenge in a single case violates the equal protection clause.

Under Batson v. Kentucky, supra, the defendant must first make a prima facie showing that the state exercised a peremptory challenge with a racially discriminatory purpose. Id., 96. This showing must include evidence that the defendant “is a member of a cognizable racial group . . . and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. . . . Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used [peremptory challenges] to exclude the venireman from the petit jury on account of their race.” (Citations omitted.) Id. In making his prima facie showing, the defendant may “rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits ‘those to discriminate who are of a mind to discriminate.’ ” Id.

If the defendant successfully makes this prima facie showing, the burden shifts to the state to articulate a neutral explanation for excusing members of the defendant’s racial group. Id.; State v. Wylie, 10 Conn. App. 683, 696, 525 A.2d 528, cert. denied, 204 Conn. 807, 528 A.2d 1154 (1987). The trial court must then determine whether the defendant has carried the overall burden of showing purposeful discrimination.

In State v. Holloway, 209 Conn. 636, 553 A.2d 166 (1989), a case published after the defendant’s trial, our Supreme Court, in an exercise of its inherent supervisory authority, modified the Batson procedure, ruling that “in all future cases in which the defendant asserts a Batson claim, we deem it appropriate for the state to provide the court with a prima facie case response consistent with the explanatory mandate of Batson” Id., 646. Because the court expressly limited the applicability of this rule to future cases, the Batson procedure, as outlined above, controls this case.

In this case, the state peremptorily challenged the first black venireperson. The defendant objected, gave the factual basis for his objection, and moved to place the state’s attorney under oath to proffer a neutral reason for the challenge. The trial court summarily denied the motion and took a short recess. Under Batson, the trial court should deny such a motion only after determining that the defendant had failed to make a prima facie showing of discriminatory abuse of the challenge. State v. Wylie, supra. Accordingly, we must determine whether the trial court could reasonably have reached such a conclusion.

Our task is complicated by the very flaw in the record that the Holloway rule will eradicate from future cases, namely, the absence of any neutral explanation given by the state for the challenge. See State v. Holloway, supra, 645-46. Nevertheless, we can review the record to determine whether the defendant made the requisite prima facie showing. See, e.g., State v. Martin, 2 Conn. App. 605, 614, 482 A.2d 70 (1984), cert. denied, 195 Conn. 802, 488 A.2d 457, cert. denied, 472 U.S. 1009, 105 S. Ct. 2706, 86 L. Ed. 2d 721 (1985) (appellate courts may look to the evidence produced in support of a ruling when a trial court rules on motion to suppress without detailing facts supporting its decision).

The first Batson factor is satisfied. The record reveals that the defendant is black and that the prosecutor exercised a peremptory challenge to remove the tenth venireperson, a black man, from the venire. The only other “relevant circumstance”; see Batson v. Kentucky, supra, 96-97; alleged by the. defendant was that the venireperson’s responses to the voir dire were “no different than most of the responses given” by other, white venire panelists to the same questions. We disagree with this assertion.

Generally speaking, the venireperson in question mumbled or spoke softly when answering questions on the stand. It is evident from the transcript of his testimony; see footnote 2, supra; that he was confused by hypothetical questions, was equivocal in his opinion of whether society suffers from a drug problem and was unsure of his ability to follow the court’s instructions and to be fair to both sides. Furthermore, he testified that he considered himself to exercise common sense only about “50 percent of the time.”

We also note that both the state and the defendant asked basically the same questions of this venireperson as they did of other venire panelists, and that the state’s questioning of him does not appear from the transcript to have been perfunctory. Of the three remaining venire panelists excused by the state, it appears from the transcript that one was excused for his equivocal position on the existence of a societal drug problem, another due to his negative view of police officers, and the third because she had been a victim of crime. Thus, no pattern of racial discrimination emerges from the state’s exercise of the challenge. State v. Gonzalez, 206 Conn. 391, 399, 538 A.2d 210 (1988).

We conclude that the record before us does not support a reasonable inference that the state exercised the challenge for a racially discriminatory purpose. Because the defendant did not make the required prima facie showing, the trial court did not err in refusing to compel the state to explain the challenge at issue in this case.

II

The defendant next claims that the trial court erred in its rereading to the jury of its charge on reasonable doubt. The following facts are pertinent to our analysis of this issue.

The court charged the jury on Friday, February 19. The court explained what is not a reasonable doubt, then instructed the jury on what constitutes a reasonable doubt. Thereafter, the court explained that the state bears the burden of proving the defendant guilty beyond a reasonable doubt, that the defendant must be presumed to be innocent unless there is proof beyond a reasonable doubt and that the state must prove all elements of the crime charged.

Later that afternoon, after it had begun its deliberations, the jury requested that the court “reread that statement about reasonable doubt.” The court replied that it would do so the following Monday morning.

The court’s rereading included the instruction on what constitutes a reasonable doubt; see footnote 3, infra; but omitted the paragraphs concerning the presumption of innocence, the state’s burden of proving every element of the crime charged, and the jury’s duty to acquit if it found the evidence supported a hypothesis consistent with innocence. See footnote 4, infra. The defendant took exception to the recharge, complaining that it was “overly beneficial to the state” in comparison to the charge given on Friday. He did not, however, specifically apprise the court of the exact passages that were omitted.

The state argues that because the defendant failed at trial to advise the court of the precise nature of his objection, on appeal this court should not review a more carefully distilled version of his objection. Under Practice Book § 4185 we are not bound to consider a claim unless it was distinctly raised at trial, and was “ ‘ “so stated as to bring to the attention of the court the precise matter on which its decision is being asked.” (Emphasis added.) Woodruff v. Butler, 75 Conn. 679, 682, 55 A. 167 (1903).’ State v. Carter, 198 Conn. 386, 396, 503 A.2d 576 (1986).” State v. Lonergan, 16 Conn. App. 358, 362, 548 A.2d 718 (1988), cert. granted on other grounds, 210 Conn. 812, 556 A.2d 611 (1989). The defendant’s exception and legal argument do not meet this test. From the transcript, it is impossible to discern any discrete legal theory for the defendant’s exception, other than that the recharge was “overly beneficial” to the state. From this argument, the trial court could not have been expected to deduce that the defendant was really complaining that the recharge unconstitutionally diluted the state’s burden of proof, which is the defendant’s theory on appeal.

Neither is this claim entitled to review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). Although the defendant’s claim wears the mantle of the constitution, the claim itself is not truly of constitutional proportions. State v. Huff, 10 Conn. App. 330, 334, 523 A.2d 906 (1986), cert. denied, 203 Conn. 809, 525 A.2d 525 (1987); State v. DeMayo, 18 Conn. App. 297, 302, 557 A.2d 571, cert. denied, 212 Conn. 807, 563 A.2d 1355 (1989).

The jury had been fully instructed on the state’s burden of proving each element, on the presumption of the defendant’s innocence, and on what constitutes a reasonable doubt, conceptually distinct but related subtopics of the state’s overall burden of proof. The defendant has not challenged the court’s original charge. The jury later asked for reinstruction on reasonable doubt, which the court provided. We fail to see how the jury could have considered the court’s limited reinstruction on reasonable doubt as a reinstruction on the state’s overall burden of proof, or as a substitute for the earlier instruction. Viewing the charge as a whole; see State v. Butler, 207 Conn. 619, 633, 543 A.2d 270 (1988); we conclude from our limited review of the record that the defendant’s challenge to the trial court’s rereading of its instructions on reasonable doubt without reiterating its entire general charge on the state’s burden of proof is not a claim of constitutional proportion. “The defendant has attached a constitutional label to what is analytically, at its core, a nonconstitutional claim. . . . We therefore decline to review this claim further.” (Citation omitted.) State v. Huff, supra, 335.

There is no error.

In this opinion the other judges concurred.

       The transcript of the voir dire of the second venire panelist, for instance, sets forth in pertinent part:
      “Q. . . . Let me ask you this: Do you believe that there is a drug problem in society today?
      “A. Certainly. . . .
      “Q. . . . [Assuming you are chosen as a juror and you listen to all the evidence, at the end of the trial the judge is going to instruct you as to what the law is. Do you think you would do your best to follow the judge’s instructions as to what the law requires and what defenses is [sic]?
      “A. Yes.
      “Q. I think the judge may also tell you in his instructions that it’s not the quantity of witnesses but the quality. Do you think you could be fair to one side if one side had fewer witnesses than the other?
      “A. Yes, I do. . . .
      “Q. If, after hearing all the evidence in the trial, you were convinced that the state had proven guilty beyond a reasonable doubt would you be able to render a guilty verdict?
      “A. Yes.
      “Q. Okay. And likewise, if you were not convinced that the state had met its burden, you wouldn’t have any problem finding the defendant not guilty?
      “A. No, I wouldn’t.”

       During the state’s voir dire of the tenth venireperson the prosecutor asked the following questions:
      “Q. . . . [TJhe defendant is charged with possession of narcotics. Would you say that there is a problem with drugs in our society today?
      “A. It appears to be.
      “Q. Anything just about the nature of those charges that make it difficult for you to sit on a jury?
      “A. Like what? (Inaudible)
      “Q. You’re going to have to speak up a bit.
      “A. What makes it difficult?
      “Q. Maybe the seriousness of the offense or maybe your feelings toward drugs. Let me ask you this. Do you think the state should vigorously prosecute drug offenses?

        “A. Well, it depends on vigorous. I mean, how active would you mean? That he should be an addict, or what?
      “Q. Well, do you think the state should look the other way?
      “A. Oh, no. No.
      “Q. No, The state should actively pursue—
      “A. Yeah.
      “Q. —drug investigations?
      “A. Oh, yeah.
      “Q. . . . [I]f you were chosen to sit on the jury, at the end of the case the judge would instruct you as to what the law is, do you think you could accurately follow what the judge told you as to what the law is in this case?
      “A. Well, if he point out, you know, everything there is to point out I could probably follow it.
      “Q. But you would listen to the judge and do your best to follow the judge’s instructions?
      “A. (No audible response.)
      “Q. Okay. . . . [I]f you sat on the jury and you heard all the evidence and you were convinced that the defendant was guilty, the state had proven guilty beyond a reasonable doubt, could you vote for a guilty verdict?
      “A. Could I?
      “Q. Yes.
      “A. Well, it all depends on how — what the — actually know what the circumstances are.
      “Q. Well, not to get into the specifics of this case, but I’m just saying hypothetically, if you were convinced that the defendant was guilty, that the state had proven their case against the defendant, could you—
      “A. What would I do.
      “Q. I’m sorry?
      “A. You’re asking me how would I do?
      “Q. No, I’m just saying if you were convinced that the defendant was guilty would you be able to render a guilty verdict?
      “A. Oh, of course.
      “Q. Yes?
      “A. Yeah.
      “Q. Okay. Likewise if you were convinced that the defendant was innocent you’d vote not guilty?

        “A. Obviously, yeah. . . .
      “Q. All right. Do you think you could be fair to the defendant and to the state?
      “A. No, I hope to.
      “Q. Okay. Would you listen to both sides?
      “A. Yeah, absolutely.
      “Q. Yes. And you think you’d be fair to both sides?
      “A. Yeah. (Mumbling.)
      “Q. Yes. No. You’re not sure?
      “A. Well, at this time I couldn’t, you know, put my yes or no on anything.
      “Q. Well, would you leave your mind open to listen to both sides?
      “A. Oh, open mind, yeah.
      “Q. Okay. Is there some reason way down the road that you don’t think you could be fair to both sides?
      “A. It’s possible.
      “Q. Okay. Would you listen to the witnesses on both sides and judge their credibility to the best of your ability?
      “A. If I have to, yeah. I could use credibility.
      “Q. Okay. There might be a certain number of police officers who testify in a case. Do you think you would judge their credibility as you would any other person?
      “A. Well, I (mumbling).
      “Q. All right. Thank you very much.”
      The following passages are quoted from the transcript of the defendant’s voir dire of the tenth venireperson:
      “Q. Okay. Do you have any problem with the fact that the greater burden is placed upon the state in a criminal case than is placed upon the ordinary person who is suing someone else? Do you have any political differences with that at all?
      “A. I haven’t found any yet.
      “Q. Okay. Do you have any opinions one way or the other. For example, are you the kind of person who believes that people ought to be convicted by a standard less than evidence or proof by a reasonable doubt?
      “A. That’s true.
      “Q. What I’m saying is do you have any opinions one way or the other.

        “A. No.
      “Q. Okay. Let me rephrase the question. Do you believe that people ought to be able to be convicted of crimes on proof less than beyond a reasonable doubt, less than the standard that we have now?
      “A. I don’t think so. . . .
      “Q. Would you follow the judge’s instructions even if personally you disagree with them?
      “A. That might be too difficult. . . .
      “Q. Okay. What about you .... Do you consider yourself to have common sense?
      “A. Well, part of the time.
      “Q. Do you consider yourself to be—
      “A. Say, 50 percent of the time.
      “Q. Okay. Do you consider yourself to be a man who is a good judge of character?
      “A. Fair.”

       The court’s instruction on reasonable doubt was as follows: “It is a doubt that is based upon reason and which grows out of the evidence or lack of evidence which was presented. A reasonable doubt is a doubt that is reasonable and honestly entertained after a thorough evaluation and careful examination of all of the evidence which you have heard.”

       The court’s instructions on these principles were as follows: “The burden, then, is on the state to prove the accused guilty of the crime of which he is charged. He, the accused, is not — does not have to prove his innocence. The law presumes the defendant to be innocent of the crime. Thus the defendant begins the trial with a clean slate and with no evidence against him and the law permits nothing [except] legal evidence presented before the jury to be considered in support of any charge against the accused.
      “So the presumption of innocence alone is sufficient to acquit a defendant unless the jury is satisfied beyond a reasonable doubt of the defendant’s guilt after a careful and impartial consideration of all the evidence. This means that the state must prove every element necessary to constitute the crime charged ....
      “As I indicated, it is not enough for the state to prove all or some of the elements — they must prove each one of the elements because if proof of even one of the elements is lacking, you must find the accused not guilty. The State, in other words, can establish the burden and rest on it only by proof of every element beyond a reasonable doubt. ... As I said, proof beyond a reasonable doubt is proof which precludes every reasonable hypothesis of guilt [sic]. If two conclusions can be drawn, reasonably drawn from the evidence, one of innocence and one of guilt, you must adopt the one of innocence unless you are convinced beyond a reasonable doubt, convinced of guilt beyond a reasonable doubt, then you must find Mr. Tappin not guilty.”