text:
    Abraham J. Kolodney, Trustee v. Nancy Kolodney
    (3393)
    Hull, Daly and Bieluch, Js.
    Argued November 13, 1985
    decision released January 28, 1986

      Irving B. Shurberg, for the appellant (plaintiff).

      Jason E. Pearl, with whom, on the brief, was Gary M. Gworek, for the appellee (defendant).
   Bieluch, J.

The plaintiff trustee, Abraham J. Kolodney, appeals from a judgment of the trial court ordering him to increase monthly payments to the defendant, Nancy Kolodney, beneficiary of the trust, from $1000 to $2500. The plaintiff claims, inter alia, that the court erred in finding that he. had abused his discretion by failing to provide sufficient monthly payments for the comfortable maintenance, support and education of the defendant. We find no error.

The plaintiff was the brother of Ralph J. Kolodney, who was the father of the defendant and who created a testamentary trust in her favor. The plaintiff was named as trustee and, pursuant to the trust, began to pay the defendant $1000 per month. The defendant applied to have the plaintiff removed as trustee but, instead of acting on the removal petition, the Probate Court ordered the plaintiff to pay the defendant a minimum of $2000 per month under the fourth clause of the will, retroactive to July 28, 1981, the date when the plaintiff accepted the trusteeship. The defendant had requested $30,000 per year, or $2500 per month.

The plaintiff appealed from this order to the trial court. That court, after a trial de novo pursuant to General Statutes § 45-288, increased to $2500 the minimum amount which the plaintiff was required to pay each month, retroactive to August 20,1981, the date of his qualification as trustee.

From that judgment, the plaintiff has appealed to this court. The plaintiff claims that the trial court erred (1) in failing to hold that the trust did not require him to make any payments to the defendant beneficiary, (2) in finding that the plaintiff delegated to his wife the duty to exercise independent judgment as to the financial needs of the defendant, (3) in holding that he abused his discretion, and (4) in ordering him, as trustee, to pay the defendant beneficiary $2500 monthly.

The plaintiffs first claim of error is that the trust, by its terms, did not require him to make any payments to the defendant at all. This argument is based on the provision in the trust which provides the trustee with “the power to invest and reinvest [the trust res] and to collect the income therefrom and expend so much of the net income and principal thereof for the comfortable maintenance, support and education of my said daughter as he . . . shall, in his . . . sole discretion, deem advisable . . . .” The plaintiff equates the phrase “sole discretion” with “absolute discretion.” This argument is unconvincing.

The plaintiffs claim hinges on his assertion that the language of this trust should be construed as was the language of the trust in Auchincloss v. City Bank Farmers Trust Co., 136 Conn. 266, 70 A.2d 105 (1949). In that case, however, the trust contained the express phrase “in their absolute discretion.” That discretion was unbounded by any standard to be applied. Hence, the court held that the provision did not “impose upon [the trustees] a duty to use the income for the support and education of the child, leaving them merely a discretion as to time and methods of its disposition, nor is the provision one which conditions the application of the fund upon the needs of the child . . . .” (Emphasis added.) Id., 269.

In the present case, however, the plaintiffs discretion was limited by a standard, that of “comfortable maintenance, support and education.” “The well-settled rule in this state is that the exercise of discretion by the trustee of a spendthrift trust is subject to the court’s control only to the extent that an abuse has occurred under the powers granted by the testamentary disposition. ... To determine the discretionary powers provided, it is necessary to ascertain the dis-positive intention as expressed by the language of the entire will ‘in the light of the circumstances surrounding the testator when the instrument was executed, including the condition of his estate, his relations to his family and beneficiaries and their situation and condition.’ Gimbel v. Bernard F. & Alva B. Gimbel Foundation, Inc., 166 Conn. 21, 26, 347 A.2d 81 [1974].” Zeoli v. Commissioner of Social Services, 179 Conn. 83, 89, 425 A.2d 553 (1979). It is clear from the testator’s use of the “comfortable maintenance, support and education” standard that the trustee’s discretion was not intended to be absolute. See Bogert, Trusts and Trustees (2d Ed.) § 811. Had the testator so intended, he could have so provided in explicit terms. Any other reading of this trust would render the “comfortable maintenance, support and education” standard meaningless.

The plaintiff’s claimed discretion not to make any payments to the defendant was modified by the standard expressed. The plaintiff trustee was obligated to maintain comfortably, to support and to educate the defendant beneficiary during the existence of the trust. That is the measure of his sole discretion. The defendant sought an allowance of $2500 per month to meet that standard, and the trial court found that amount to be necessary.

The plaintiff’s next claim is that the court erred in concluding that the plaintiff had delegated to his wife the duty and judgment concerning the defendant’s financial needs and thereby abused his discretion. This claim is without merit.

The transcript reveals that the plaintiff did direct his wife, Frances Kolodney, to visit the defendant at her apartment in New York’s SoHo district. The plaintiff testified that his wife brought back a report on the defendant’s living conditions which formed the basis for the amount of his payments to the defendant. From this testimony, the court could have concluded that the plaintiff delegated his duty to exercise independent judgment as to the defendant’s needs. We will not retry the facts. Practice Book § 3060D.

With regard to the plaintiff’s remaining claims, his arguments are (1) that he was not obligated to make any payments to the defendant pursuant to the trust and, therefore, that he was not required to inquire into her financial needs which the court found he had failed to do, and (2) that in the absence of an abuse of his discretion, the court had no authority to control his discretion, or to substitute its own.

Both of these claims are based on faulty predicates. First, since we have concluded that the plaintiff was obligated to pay the defendant whatever sum was necessary for her comfortable maintenance, support and education, it follows that he had a duty to inquire as to what sums were necessary to maintain that standard of living. His failure to do so constituted an abuse of discretion. Second, since the trial court found, and we agree, that there was an abuse of discretion in this case, the trial court did have the authority to raise the monthly payments to the defendant to the level required by the provisions of the trust. The amount ordered was the sum requested as necessary by the defendant for her comfortable existence under the standard set forth by her father.

There is no error.

In this opinion the other judges concurred.

       The provisions of that trust provide in part: “Fourth: All the rest, residue and remainder of my estate, of whatsoever the same may consist and wheresoever situated, I give, devise and bequeath to my said brother, Abraham J. Kolodney, to serve without bond, and if he is unable or unwilling to act, then to The New Britain National Bank, a national banking association located in said Town of New Britain, in trust, however, to pay over to my daughter, Nancy Kolodney, when she has reached or shall reach the age of fifty years. During the period while my Trustee, whichever one may act, shall hold any estate in trust, he or it shall have the power to invest and reinvest the same and to collect the income therefrom and expend so much of the net income and principal thereof for the comfortable maintenance, support and education of my said daughter as he or it shall, in his or its sole discretion, deem advisable, or in the event my said daughter shall not be living at the time of my death or shall not survive to receive all of the trust estate hereunder in accordance with the terms hereof, then I give, devise and bequeath all said rest, residue and remainder estate or all of said trust estate then remaining, whichever the case may be, to her children then living and the issue then living of any deceased child of hers, equally per stirpes.”

       Prior to this appeal, the plaintiff also appealed to this court from the dismissal, in the trial court, of his declaratory judgment action by which he sought answers to five questions regarding his discretion over the terms of the trust at issue here. We found that those questions were explicitly or implicitly at issue in the present case, and therefore found no error in that appeal. Kolodney v. Kolodney, 2 Conn. App. 697, 483 A.2d 622 (1984).

       We note at the outset that the preliminary statement of issues provided by the plaintiff pursuant to Practice Book § 3012 (a) bears little literal resemblance to the statement of issues in his brief. Giving the preliminary statement of issues its broadest possible interpretation, we conclude that the issues in the plaintiffs brief relate to those claimed in the preliminary statement. We point out, however, that the plaintiff might well have taken advantage of our liberal procedure for amending his preliminary statement of issues pursuant to Practice Book § 3012 (d).

       The trial court found that the defendant’s apartment was a sixth floor walk-up which contained a makeshift shower installed by her, and had heating problems and a front door that was repeatedly being broken.


source: Caselaw Access Project

author: Spallone, J.

license: Public Domain

text:
    State of Connecticut v. Benjamin Cardona
    (2781)
    Spallone, Daly and Bieluch, Js.
    Argued October 9, 1985
    decision released February 4, 1986

      James J. Ruane, special public defender, with whom, on the brief, were Richard T. Meehan, Sr., and Richard T. Meehan, Jr., for the appellant (defendant).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Domenick J. Galluzzo, assistant state’s attorney, for the appellee (state).
   Spallone, J.

The defendant was charged with the crime of murder in violation of General Statutes § 53a-54a. He was convicted, after a jury trial, of the lesser included offense of assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and is appealing from the judgment of that conviction.

The jury could reasonably have found the following facts. On the evening of October 10,1982, the defendant went to Fannie’s Lost and Found Cafe, in Bridgeport. While there, he socialized with several individuals including the following: Willie Tolliver, the cafe’s bouncer; Barry Hopkins, who, along with the defendant, was charged in connection with the stabbing death of Luis Valentine; Richard Young, the main witness against the defendant; Bernadine James, the sister of Barry Hopkins; Alice White, the defendant’s girlfriend by whom he had a son; and Agnes White, Alice White’s sister-in-law. The defendant consumed several drinks while at the bar. At approximately midnight the defendant left the bar with Tolliver. The two men went to Park City Hospital where Tolliver was treated for a stomach ailment. The defendant left Tolliver at the hospital and went back to Fannie’s Lost and Found Cafe. He remained there until closing, approximately 2 a.m.

Throughout the evening, the defendant and the other individuals discussed an incident in which Bernadine James’ daughter had been sexually molested. Richard Young, upon hearing of the molestation of the young girl, became extremely upset, expressed his desire to confront the individual involved, and had to be calmed down. At some point, Young volunteered to go with Barry Hopkins to pick up the individual whom they believed was responsible for the molestation.

When the cafe closed, the defendant, Young, Hopkins and another individual, Richard Coover, left together. Agnes White and Bernadine James walked to White’s apartment where they were met by the defendant, Young and Hopkins. Coover had been dropped off at his home.

The victim, Luis Valentine, was also at White’s apartment. He spoke with the defendant and Hopkins and left with them. The defendant, Young and Hopkins returned to White’s apartment approximately forty-five minutes after they had left. Valentine did not return with them. Upon entering the apartment, Young threw at least two knives into the kitchen sink, Hopkins wrapped a towel around his hand which had been cut and the defendant banged his head against the refrigerator and stated that he was sorry. Shortly thereafter, the three men went to Bridgeport Hospital seeking treatment for Hopkins’ hand. Hopkins remained at the hospital. The defendant and Young left and the defendant eventually drove Young to the Bridgeport train station where Young boarded a train bound for New York. Young left the train and reported Valentine’s death to the Bridgeport police. He took the police to the body and implicated the defendant and Hopkins in the killing, whereupon the police sought the arrests of both men.

I

The defendant’s first claim is that the trial court erred in denying his request for production of written statements of named, but uncalled, state’s witnesses.

In his motion for discovery, the defendant requested the names and addresses of individuals whom the state intended to call as witnesses at trial. The court granted the defendant’s request as limited by Practice Book §§ 743 and 752. At the close of the state’s case, the state had not called all the witnesses originally named. The defendant filed a motion for production seeking copies of all written statements of the individuals named but not called. The court denied the defendant’s motion and the defendant called these individuals as witnesses during the presentation of his case. Each witness was subject to full cross-examination.

The defendant claims that the denial of his request for production violated his federal and state constitutional right to a fair trial and his right to call witnesses on his own behalf. He argues that, without knowing the contents of the witnesses’ statements in advance, he was foreclosed from making an intelligent decision whether to call the particular individual as a witness, thereby undermining his opportunity to present a complete defense. We find this argument unpersuasive.

A

It is clear that the provisions of Practice Book § 752 which require the production of a statement of a witness who testified for the prosecuting authority are mandatory. State v. Anonymous (83-FG), 190 Conn. 715, 732, 463 A.2d 533 (1983); State v. Gonzales, 186 Conn. 426, 432, 441 A.2d 852 (1982). Our rules on this subject are substantially similar to the Jencks Act, 18 U.S.C. § 3500; State v. Gonzales, supra; which provides for discovery of statements and reports in criminal prosecutions brought by the United States. A prerequisite to the applicability of the Jencks Act is that the individual whose statement or report is sought be called as a witness. United States v. Disston, 612 F.2d 1035, 1038 (7th Cir. 1980). “ 'The purpose of the Jencks Act was to provide the defense with a means of impeaching a government witness by means of a prior inconsistent statement . . . while not allowing an unrestrained search through government files.’ United States v. Catalano, 491 F.2d 268, 274 (2d Cir.), cert. denied, 419 U.S. 825, 95 S. Ct. 42, 42 L. Ed. 2d 48 (1974) . . . .” State v. Hinton, 196 Conn. 289, 301, 493 A.2d 836 (1985). The language of our rules in this regard is clear and is consistent with the federal rule. Only “after a witness called by the state has testified on direct examination at trial” must the judicial authority order the state to produce any statement of the witness which is in the possession of the state or its agents. Practice Book § 752. Nowhere do the rules of practice indicate that the state is required to produce the statements of prospective witnesses whom the state decides ultimately not to call at trial.

Although this rule must not be applied so as to circumvent the prosecution’s duty “to ensure that all evidence tending to aid in the ascertainment of the truth be laid before the court, whether it be consistent with the contention of the prosecution that the accused is guilty”; State v. Moynahan, 164 Conn. 560, 568, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S. Ct. 291, 38 L. Ed. 2d 219 (1973); it must be recognized that there is no constitutional requirement that the prosecution routinely deliver its entire file to the defense. California v. Trombetta, 467 U.S. 479, 104 S. Ct. 2528, 2534 n.8, 81 L. Ed. 2d 413 (1984).

B

The defendant argues further that Practice Book § 741 (3) requires the production of the written statements he sought. Again, we do not agree.

Practice Book § 741 (3) requires the prosecuting authority to disclose to the defendant certain relevant materials which are exculpatory, material to the preparation of the defense or which are intended for use by the prosecution as evidence in chief at the trial. The rule does not require the wholesale production of all materials and information in the prosecution’s possession. The defendant’s pretrial motion for discovery and inspection which sought the statements in question was granted by the trial court as limited by the provisions of Practice Book § 752, discussed above. The record and transcripts do not indicate that the defendant made a showing of materiality sufficient to require production of the statements in question under § 741 (3). Likewise, there was no showing that the statements were exculpatory and therefore discoverable. Absent any such showing, we cannot say that the trial court erred in denying the defendant’s requests for production of the statements.

II

The defendant’s next two claims challenge the propriety of two related rulings made by the trial court which concerned the admissibility of prior written statements.

A

During the trial, the defense called Bernadine James as a witness. On cross-examination, the state questioned her in detail as to her withdrawal of charges against an individual charged with the molestation of James’ daughter. The state also questioned the witness as to the events preceding the homicide of Luis Valentine.

In an attempt to impeach the witness’ credibility, the state offered a statement she made to the police in which she recounted the events in question. The defendant objected to the introduction of the statement and sought to limit the offer to what the state alleged to be inconsistencies with her in-court testimony. The court overruled the defendant’s objection and concluded that the alleged inconsistencies could not be isolated and taken out of context. The defendant claims that the trial court’s ruling which allowed into evidence the unretracted statement of a witness violated his federal and state constitutional right to a fair trial.

The elementary rule of evidence that the credibility of a witness may be attacked by showing a materially inconsistent prior statement made by that witness is well settled in our law. State v. Carter, 189 Conn. 631, 639-40, 458 A.2d 379 (1983); G&R Tire Distributors, Inc. v. Allstate Ins. Co., 177 Conn. 58, 60-61, 411 A.2d 31 (1979); State v. Saia, 172 Conn. 37, 45-46, 372 A.2d 144 (1976). The trial court is vested with broad discretion in controlling the inquiry surrohhding such matters and in deciding whether and to what extent the inconsistent statements should be admitted. G&R Tire Distributors, Inc. v. Allstate Ins. Co., supra; State v. Saia, supra. The trial court’s ruling will not be disturbed unless it is clear that its discretion has been abused. In the present action, the trial court did not abuse its discretion.

B

In an attempt to rehabilitate James, the defense sought to introduce a written statement which James had given at the request of her attorney five and one-half months after Luis Valentine had been killed. The defendant argues that the statement was consistent with her in-court testimony and was admissible. The court ruled that the statement was inadmissible on the ground that it was made at a time when the witness possessed a motive to falsify, i.e., the witness’ brother, Barry Hopkins, had at that point been charged with murder in connection with the death of Luis Valentine.

The general rule is that a witness’ prior consistent statements are inadmissible at trial. State v. Brown, 187 Conn. 602, 607, 447 A.2d 734 (1982); State v. Dolphin, 178 Conn. 564, 568, 424 A.2d 266 (1979). Nevertheless, prior consistent statements have been allowed to rehabilitate a witness who has been impeached “by a prior inconsistent statement; by a suggestion of a bias or an interest which was not present at the time of the prior consistent statement; or by a suggestion of recent contrivance.” State v. Brown, supra, 608; see State v. Anonymous, supra, 728. The admission of such statements is, however, totally within the trial court’s discretion. State v. Dolphin, supra, 569.

Under the circumstances of the present case, having concluded that the witness possessed a reason to falsify her statements, the court acted within its broad discretion in not allowing the witness’ prior statements into evidence. See State v. McCarthy, 179 Conn. 1, 20-21, 425 A.2d 924 (1979).

Ill

The defendant next challenges his arrest as violative of his federal and state constitutional right to be free from unreasonable search and seizure.

Although the facts surrounding the arrest of the defendant are somewhat unclear, the jury could reasonably have found the following. Based upon the information the Bridgeport police obtained from Richard Young, the defendant was arrested at a house located on Lyon Terrace in Bridgeport within a very short distance from the police station. After the defendant’s arrest was ordered, at least four police officers went to the house. Two of the officers knocked on the front door and a young woman answered. One of the officers asked if the defendant was in the house. The woman told the officer that the defendant was upstairs. The woman then opened the door wider. The officer stated again that he was looking for the defendant, and the woman backed up, gestured up the stairs and stated that the defendant was upstairs. At least one of the officers proceeded upstairs and found the defendant fully clothed lying on a bed. The defendant was handcuffed and was escorted to the police station. The arrest was made without first obtaining a warrant and the defendant argues that it violated his constitutional rights. We disagree.

A

The events which took place at the time of the arrest actually involved both the warrantless search of a dwelling and the subsequent warrantless arrest or seizure of the defendant. Although the search of the dwelling was for the sole purpose of arresting the defendant, it is clear that probable cause to arrest is not alone sufficient to allow the warrantless entry into a home. "To be arrested in the home involves not only the invasion attendant to all arrests but also an invasion of the sanctity of the home.” Payton v. New York, 445 U.S. 573, 588-89,100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980), quoting United States v. Reed, 572 F.2d 412, 423 (2d Cir. 1978). Because warrantless searches and seizures inside a home are presumptively unreasonable; Payton v. New York, supra, 586; State v. Guertin, 190 Conn. 440, 446, 461 A.2d 963 (1983); a greater burden is placed upon the arresting officers to show a reason for such searches and seizures.

As a threshold matter, we must address the state’s claim that the defendant lacks standing to contest the warrantless search of the house in which he was located by the police. See State v. Callari, 194 Conn. 18, 23, 478 A.2d 592 (1984), cert. denied, 469 U.S. 1210, 105 S. Ct. 1178, 84 L. Ed. 2d 327 (1985). The state argues that the defendant was merely a transient social guest at the residence in question and, therefore, had no standing to challenge the constitutionality of the warrantless search undertaken by the police.

“The defendant bears the burden of establishing the facts necessary to demonstrate a basis for standing. State v. McLucas, 172 Conn. 542, 546, 375 A.2d 1014, cert. denied, 434 U.S. 855, 98 S. Ct. 174, 54 L. Ed. 2d 126 (1977). Critical to this standing determination is the defendant’s showing that he possessed a legitimate expectation of privacy in the premises searched. United States v. Payner, 447 U.S. 727, 731, 100 S. Ct. 2439, 65 L. Ed. 2d 468, reh. denied, 448 U.S. 911, 101 S. Ct. 25, 65 L. Ed. 2d 1172 (1980); State v. McLucas, supra.” State v. Callari, supra. From the evidence introduced at trial, it is clear that the defendant had such a privacy expectation. The home was that of Laurel Kovacs. Alice White, who was Kovacs’ daughter and the girlfriend of the defendant, lived there. The defendant’s son, whose mother was Alice White, also lived there. Kovacs testifed that the defendant was staying there with her permission, that her door was always open to the defendant and that her home was his home. She also testified that the defendant stayed at her home at least once a week. At times, the defendant stayed as long as two or three months. When he stayed, the defendant always contributed to the household by means of money, food or some other contribution. On the basis of these facts, and under the circumstances of this case which portray a uniquely complex network of familial relationships, the defendant had an expectation of privacy in the subject premises, and, consequently, had standing to challenge the validity of the search. Compare State v. Callari, supra, 23-24.

B

One recognized exception to the warrant requirement is where a search has been undertaken pursuant to consent. State v. Gallagher, 191 Conn. 433, 437, 465 A.2d 323 (1983); State v. Zindros, 189 Conn. 228, 237, 456 A.2d 288 (1983), cert. denied, 465 U.S. 1012, 104 S. Ct. 1014, 79 L. Ed. 2d 244 (1984). The state claims this exception and bears the burden of proving it. State v. Jones, 193 Conn. 70, 78-79, 475 A.2d 1087 (1984); Dotson v. Warden, 175 Conn. 614, 618, 402 A.2d 790 (1978). “Consent requires an affirmative finding of voluntariness and is not established by a mere acquiescence to a claim of lawful authority.” Dotson v. Warden, supra, 619. It must be freely and voluntarily given, which is a “question of fact to be determined from the totality of the circumstances.” Id.

The testimony produced at trial reveals that there were six individuals in residence at the house where the defendant was picked up. They were: Laurel Kovacs; Kovacs’ mother; Kovacs’ daughters, Carol Kovacs and Alice White; Benjamin Cardona, Jr. and Benjamin Cardona, the defendant. As discussed earlier, one of the young women answered the knock of the police officers. The officers told her that they were looking for the defendant. The girl stepped back and told the officers that the defendant was upstairs. There is no indication that the alleged consent was coerced by the police officers or that any resident of the house protested their entry. When viewing, in total, the circumstances surrounding the officers’ entry into the house, we conclude that such entry was consented to and, therefore, did not violate the defendant’s constitutional rights.

C

With regard to the validity of the warrantless arrest of the defendant, it cannot be argued seriously that reasonable grounds upon which to arrest the defendant did not exist.

A police officer is authorized to arrest an individual, without first obtaining a warrant, who the officer apprehends in the act or on speedy information of others, or who the officer has reasonable grounds to believe has committed or is committing a felony. General Statutes § 54-If (a) and (b). “Reasonable grounds” is equated with probable cause which “exists when the facts and circumstances within the knowledge of the officer and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution to believe that a felony had been committed.” State v. Wilson, 153 Conn. 39, 42, 212 A.2d 75 (1965); State v. Dennis, 189 Conn. 429, 431, 456 A.2d 333 (1983). “The quantum of evidence necessary to establish probable cause exceeds mere suspicion, but is substantially less than that required for conviction.” State v. Dennis, supra.

In the present action, the police took the statement of Richard Young, an eyewitness to the killing who had implicated the defendant and who had taken the police to the body of the victim, Luis Valentine. After receiving this information, the police went to Laurel Kovacs’ home, where they believed the defendant was staying. Upon arriving at the housing complex, the police found an automobile which looked to be the one reportedly used by the alleged perpetrators of the crime. Inside the automobile, the police noticed a bloody newspaper and blood stained seats. Upon inquiry, the police received information that the automobile was believed to belong to the residents in the Kovacs’ home.

These facts and circumstances provided reasonable grounds for the police to believe the defendant was involved in the killing of Luis Valentine. As such, we cannot say that the warrantless arrest of the defendant was unlawful.

IV

The defendant’s next claim poses a constitutional challenge to the admissibility of the defendant’s written statement to the police. The dispositive question raised by this claim is whether the defendant knowingly and intelligently waived his fifth amendment rights.

The state must prove by a preponderance of the evidence that the defendant knowingly and intelligently waived his constitutional right to remain silent. State v. Aversa, 197 Conn. 685, 695, 501 A.2d 370 (1985); State v. Alfonso, 195 Conn. 624, 628, 490 A.2d 75 (1985). Demonstrating that Miranda warnings were given and understood does not establish waiver conclusively. State v. Aversa, supra; see State v. Thompson, 5 Conn. App. 157, 167, 497 A.2d 423 (1985). Whether the waiver was voluntary is a question of fact to be determined by the trial court with reference to the circumstances surrounding the defendant’s statements. State v. Jones, supra, 84. The defendant contends that the state has failed to meet its burden of proof regarding the voluntariness of the defendant’s waiver. We disagree.

The state’s evidence indicated that in addition to being advised orally of his rights, the defendant was presented with a written advisement containing six numbered paragraphs. Paragraphs one through five each contained separate portions of the defendant’s rights, and paragraph six contained a provision expressly waiving those rights. The defendant read each portion of the written advisement and initialed each of the first five paragraphs separately in blanks provided on the form. The sixth paragraph, containing the waiver, was read. Beneath the waiver provision there were signature, date and time lines. The defendant signed the document, dated it and specified the time in the areas designated. Inspector Fabrizi advised the defendant of these rights and witnessed his signature to the waiver in writing.

Upon signing the waiver provision, the defendant was interviewed by the police and gave a statement. The statement was typewritten and the defendant read it, corrected it and initialed the corrections. There is no indication that force or coercion of any kind was employed in obtaining the defendant’s waiver or in taking his statement. The statement given by the defendant does not itself indicate a lack of understanding or intelligence on his part. The defendant’s responses to the questions posed demonstrate his cognizance of the situation at hand and his willingness to answer.

We conclude, therefore, that the trial court did not err in finding that the defendant knowingly and voluntarily waived his right to remain silent. See State v. Aversa, supra, 697-98; State v. Thompson, supra, 167-68.

V

The defendant’s next claim is that the trial court’s charge to the jury as prescribed by General Statutes § 54-84 (b) violated his constitutional rights against self-incrimination.

Although the defendant submitted requests to charge at trial, he did not request a charge relating to General Statutes § 54-84 (b) which provides that “[ujnless the accused requests otherwise, the court shall instruct the jury that they may draw no unfavorable inferences from the accused’s failure to testify. In cases tried to the court, no unfavorable inferences shall be drawn by the court from the accused’s silence.”

The charge given by the trial court tracked closely the language of the statute. Although the defendant objected and properly excepted to the charge when given, he has failed to preserve adequately his objection for appellate review. When error is claimed as in the charge to the jury, the party claiming error must include in his brief a verbatim statement of all relevant portions of the charge and all relevant exceptions to that charge. See Practice Book § 3060F (d) (2). The defendant has failed to do so with regard to the present claim of error. Accordingly, we decline to consider the defendant’s claim. See State v. Wright, 197 Conn. 588, 595, 500 A.2d 547 (1985).

VI

The defendant’s next claim is that the trial court erred in failing to charge the jury on assault in the first degree; General Statutes § 53a-59 (a) (2); as a lesser included offense of murder as requested by the defendant.

“ ‘A defendant is entitled to an instruction on a lesser offense if, and only if, the following conditions are met: (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.’ State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980).” State v. McCarthy, 197 Conn. 247, 262, 496 A.2d 513 (1985); State v. Fernandez, 5 Conn. App. 40, 45, 496 A.2d 533 (1985).

The defendant argues that the mandates of Whistnant were met in the present action and that therefore the trial court erred in refusing to instruct the jury as requested. See State v. Falby, 187 Conn. 6, 444 A.2d 213 (1982). We disagree.

The third prong of Whistnant requires that there be “some evidence . . . which justifies conviction of the lesser offense.” State v. Whistnant, supra, 588. In support of his claim of error, the defendant argues that if the defendant stabbed the victim, he stabbed only the victim’s neck. To this argument, the defendant adds the testimony of Richard Young and that of Harold Carver, a forensic pathologist. Young testified that the defendant slashed Valentine on the neck. Carver testified that there were very few wounds to Valentine’s neck, and only one such wound was deep. It is the defendant’s contention that the evidence presented is evidence of the defendant’s intent to disfigure or disable permanently an organ or member of Valentine’s body.

The defendant’s argument is based upon conjecture which, if accepted, would not entitle the defendant to the requested jury charge. The evidence simply does not justify a conviction under the provisions of General Statutes § 53a-59 (a) (2) which requires an “intent to disfigure . . . destroy, amputate or disable permanently. . . .” The trial court therefore did not err in refusing to charge on the crime of assault in the first degree pursuant to General Statutes § 53a-59 (a) (2).

VII

The defendant’s final claim relates to the manner in which the court charged the jury on assault in the first degree pursuant to General Statutes § 53a-59 (a) (1) and (3). The essence of the defendant’s claim is that the court, by its instruction, presented subsection (3) of § 53a-59 (a) as a lesser included offense of subsection (1) of that same section.

It is clear that the statutory provisions in question are separate and distinct offenses which, under the proper circumstances, may be considered lesser included offenses of the crime of murder. A review of the relevant portions of the transcript indicates that when instructing the jury on the elements necessary to find the defendant guilty of assault in the first degree, the court discussed first the requirements embodied within General Statutes § 53a-59 (a) (1). When this instruction was completed, the court stated: “There is also one other possibility. If you find that the State has failed to prove beyond a reasonable doubt that the wounds allegedly inflicted by Mr. Cardona were a substantial contributing factor or cause of death and the State has also failed to prove all the elements of assault in the first degree under Subsection 1 of the statute which I just explained, you may go on to consider whether the accused might be guilty of assault in the first degree under Subsection 3 of the statute.” The defendant objected to the specific language employed by the court when instructing the jury on the separate provisions as misleading, and argues that the overall effect of the charge was to misguide the jury to the defendant’s detriment. We disagree.

Although the charge as originally given appears on its face to contain some ambiguity, the court’s supplemental charges and explanations to the jury sufficiently clarified any such ambiguity. The transcript indicates that at some point after the jury had commenced deliberating, they requested an explanation of the charges. The court then reviewed the verdicts which the jury could possibly reach.

In its remarks regarding assault in the first degree, the court indicated clearly that there were two options available under General Statutes § 53a-59 (a); assault in the first degree pursuant to subsection (1) requiring an intent to cause serious physical injury, and assault in the first degree pursuant to subsection (3) requiring reckless behavior under circumstances evincing extreme indifference to human life which cause a grave risk of death and serious injury.

The transcript indicates further that the verdicts which were possible were explained to the jury for a third time. Again the court explained clearly the two separate and distinct possibilities under the general category of assault in the first degree pursuant to § 53a-59 (a) (1) and (3).

Upon viewing the charge as a whole, so as to eschew critical dissection of it; State v. McCalpine, 190 Conn. 822, 830, 463 A.2d 545 (1983); we conclude that the court’s original and supplemental instructions fairly and adequately presented the case to the jury. State v. Cannon, 185 Conn. 260, 269, 440 A.2d 927 (1981); State v. Biller, 5 Conn. App. 616, 622, 501 A.2d 1218 (1985); see State v. Cavros, 196 Conn. 519, 528, 494 A.2d 550 (1985). The court’s instructions were orderly, logical and imparted no injustice to either party.

There is no error.

In this opinion the other judges concurred.

       Practice Book § 743 provides: “Upon motion made by the defendant, upon a showing of materiality to the preparation of the defense and a showing that the request is reasonable, the judicial authority may order the prosecuting authority at the commencement of trial to disclose to the defendant the names and addresses of all witnesses whom the prosecuting authority intends to call at trial, excluding those names already disclosed pursuant to Sec. 764. The fact that a witness’ name is on a list furnished under this section shall not be a ground for comment upon a failure to call a witness.”
      Practice Book § 752 provides: “After a witness called by the state has testified on direct examination at trial, the judicial authority shall, on motion of the defendant, order the state to produce any statement of the witness in the possession of the state or its agents, including state and local law enforcement officers, which statement relates to the subject matter about which the witness has testified.”

       The jury was instructed that they “may draw no unfavorable inferences from the failure of the accused, Mr. Cardona, to testify and it should not be considered in your deliberations.”

       General Statutes § 53a-59 (a) provides: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument; or (2) with intent to disfigure another person seriously and permanently, or to destroy, amputate or disable permanently a member or organ of his body, he causes such injury to such person or to a third person; or (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person.”

       Unlike the previous claim, the defendant has preserved the present claim for appellate review.

       See footnote 3, supra.


author: Per Curiam.

text:
    Malcolm T. Arenburg, Jr. v. Farmholme, Inc., et al.
    (3630)
    Dupont, C. J., Borden and Bieluch, Js.
    Argued January 10
    decision released February 4, 1986

      Richard H. Kosinski, for the appellant (plaintiff).

      Raphael Korff, for the appellee (named defendant).

      Robert Shluger, for the appellee (defendant Lewis J. Payton).

      Armand A. Korzenik, with whom was Albert G. Murphy, for the appellees (defendant Debra Griffin et al.).
   Per Curiam.

There is no error.


text:
    Phyllis Trapp v. Robert Trapp
    (3410)
    Dupont, C. J., Borden and Landau, Js.
    Argued November 4, 1985
    decision released February 4, 1986

      Shelley Dickinson, with whom was H. Dyke N. Spear, Jr., for the appellant (defendant).

      A. Patrick Alcalez, for the appellee (plaintiff).
   Per Curiam.

This is an appeal by the defendant husband from that portion of the trial court’s judgment denying his request for a division of the parties’ marital assets upon dissolution. In dissolving the marriage, the court made no award of alimony and no property division, leaving undisturbed the plaintiff wife’s title to personalty and realty.

The court made the following findings of fact. The parties were married for eight years prior to the dissolution. They have no minor children. Shortly after the parties were married, the plaintiff purchased a house in her own name and with her own money. The court specifically rejected the defendant’s claim that he had contributed $25,000 towards the purchase of the house. Uncontroverted evidence at trial also showed that during the course of the marriage the wife had accumulated approximately $100,000 in her credit union account. The court concluded that the primary cause of the breakdown of the marriage was the defendant’s physical abuse of the plaintiff.

The defendant claims that the trial court erred: (1) by failing to afford him an impartial hearing, as evidenced by allegedly biased remarks of the trial judge made during the trial and by the orders issued which were consistent with that alleged bias; (2) in failing to consider certain factors when formulating its order, thereby rendering it inequitable; and (3) by improperly applying the statutory criteria for a property settlement upon dissolution. We find no error.

The defendant’s first claim arises out of certain remarks made by the court during the trial. It is the defendant’s contention that these remarks, coupled with orders adverse to the defendant’s claim, evidenced a bias held by the court against the defendant, thereby denying him his fundamental right to a fair trial. See Papa v. New Haven Federation of Teachers, 186 Conn. 725, 740, 444 A.2d 196 (1982); Baldwin v. Miles, 58 Conn. 496, 498, 20 A. 618 (1890). We find that this issue is not properly before us. The defendant made no such claim at trial, and failed to make a motion for recusal. Papa v. New Haven Federation of Teachers, supra, 740-53. By failing to raise this claim seasonably, he has waived it. Krattenstein v. G. Fox & Co., 155 Conn. 609, 615-16, 236 A.2d 466 (1967). A party may not “anticipate a favorable decision, reserving a right to impeach it or set it aside if it happens to be against [him], for a cause which was well known to [him] . . . during the trial.” Id., 616. Indeed, the plaintiff here did not raise this claim until eight months after the judgment when he filed a second, amended preliminary statement of issues on appeal in this court.

The defendant would have us hold that Cameron v. Cameron, 187 Conn. 163, 444 A.2d 915 (1982), controls in the present case, claiming that there is plain error on the record requiring reversal. See Practice Book § 3063. We disagree. In Cameron, the Supreme Court reviewed the issue of judicial bias in the absence of a timely claim in the trial court. The court found that the actions of the trial court were such a “serious departure from [the] high standards” of judicial conduct that it should have declared a mistrial sua sponte. Id., 169-70. Our review of the transcript does not show any such serious deviation. Although the actions of the trial court were less than circumspect, we cannot find that the judgment was based on something other than the facts presented at trial. We hold that the actions complained of do not constitute plain error.

The defendant’s second claim of error is that the trial court failed to consider certain factors in refusing to award the defendant any portion of the assets in the plaintiff’s name. In particular, the defendant complains that the court ignored a gross misstatement by the plaintiff in her financial affidavit, filed pursuant to Practice Book § 463. There is no question that the plaintiff misstated the value of her credit union account by approximately one hundred thousand dollars. “[C]ompliance with the rules concerning the filing of financial affidavits is essential in order for the court to make a reasoned decision with respect to [dissolution] orders.” Grayson v. Grayson, 4 Conn. App. 275, 287, 494 A.2d 576, cert. granted, 197 Conn. 807, 499 A.2d 58 (1985). While we are greatly disturbed by the filing of such an inaccurate affidavit, we note that the error was revealed to the court upon cross-examination. The transcripts and the oral memorandum of decision indicate that the court was aware of the true status of the credit union account, and we find that its application of General Statutes § 46b-81 was not an abuse of its discretion. Kinney v. Kinney, 5 Conn. App. 484, 500 A.2d 569 (1985).

The defendant’s final claim of error is that the trial court improperly applied General Statutes § 46b-81, as evidenced by its refusal to grant a property division. The defendant claims that the trial court ignored his testimony in support of his property claim. It is well settled that the trier of fact is completely free to disregard evidence which it does not find credible. Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981). We will review a trial court’s disposition of a property claim only to ensure that the court did not abuse the wide latitude afforded under General Statutes § 46b-81. We find that the trial court did not abuse its discretion. The defendant’s claim that the trial court’s failure to make a property award constitutes “punishment for wrongdoing,” namely his physical abuse of the plaintiff, is without merit. See Robinson v. Robinson, 187 Conn. 70, 72, 444 A.2d 234 (1982) (property assignment neither a reward nor punishment). There is nothing in this record to suggest that the trial court sought to impose a penalty upon the defendant.

There is no error.

       The defendant is a convicted felon. He and the plaintiff, who met while he was in prison, married shortly after his release. As a consequence of the time he spent in prison, and its adverse effect upon his opportunity for employment, the court found it unlikely that the defendant had accumulated the $25,000 which he claimed to have contributed towards the purchase of the house.

       The remarks were made early on in the trial. While the defendant’s counsel was explaining his client’s contribution toward the support of the marital home, the following exchange occurred:
      “[Defendant’s Counsel]: What is in dispute is the amount and the periods of time that he—
      “The Court: It would appear to me . . . [that] there is very little in dispute here.”
      During the cross-examination of the plaintiff, the first witness in the case, the following occurred:
      “[Defendant’s Counsel]: It comes down to credibility and that’s what this case is going to be about.
      “The Court: No, it’s not. It’s not, doesn’t come down to credibility at all. Not under these circumstances. What did he contribute to this marriage other than work on that house in six years?
      “[Defendant’s Counsel]: The testimony, your Honor, will be that he—
      “The Court: What monies did he put in the bank that was jointly held in order to support her?
      “[Defendant’s Counsel]: They had no joint bank account, your Honor.
      “The Court: All right. He had his own bank account. This is a very short marriage, relatively speaking.
      “[Defendant’s Counsel]: That’s correct.
      “The Court: What’s he looking for, a gold mine? The sky? A pot of gold?
      “[Defendant’s Counsel]: Your Honor, he is looking for a fair shake.”

       We note that there is no claim that “ ‘the alleged bias and prejudice . . . [stemmed] from an extrajudicial source . . . ” Szypula v. Szypula, 2 Conn. App. 650, 655, 482 A.2d 85 (1984).

       Such misstatements may expose one to criminal liability; General Statutes § 53a-157 (a) (imposing criminal sanctions for false statements made under oath); as well as provide grounds for a motion to open the judgment. Jackson v. Jackson, 2 Conn. App. 179, 478 A.2d 1026, cert. denied, 194 Conn. 805, 478 A.2d 710 (1984).


text:
    Sandra Petro-Roy v. General Motors Corporation
    (3698)
    Hull, Spallone and Daly, Js.
    Submitted on briefs January 14
    decision released February 4, 1986

      Laurence V. Parnoff and F. J. Polesak, Jr., filed a brief for the appellant (plaintiff).

      Ralph F. Scofield filed a brief for the appellee (defendant).
   Per Curiam.

There is no error.


text:
    Lawrence C. Minichino v. Freedom of Information Commission
    (3561)
    Dupont, C. J., Borden and Landau, Js.
    Argued November 4, 1985
    decision released February 4, 1986

      Henry C. Szadkowski, with whom, on the brief, was Jonathan J. Einhorn, for the appellant (plaintiff).

      Marianne D. Smith, for the appellee (defendant).
   Per Curiam.

The plaintiff, the mayor of West Haven, has appealed from the judgment of the Superior Court dismissing his administrative appeal from a decision of the freedom of information commission (FOIC). That decision was rendered on a complaint filed by Francis Withington. We find no error.

The FOIC issued its finding on May 9,1984. It mailed notice of its decision to all parties, including the plaintiff, on May 11, 1984. On June 5, 1984, the plaintiff served notice of the present appeal upon the FOIC, as required by General Statutes § 4-183 (b). Withington, the complainant and a party of record before the FOIC, was not served.

On July 23, 1984, the FOIC moved to dismiss the plaintiff’s appeal, claiming that the court lacked subject matter jurisdiction of the appeal due to the plaintiffs failure to serve Withington with a copy of the appeal petition within thirty days from the mailing of the FOIC’s decision, as required by § 4-183 (b). On August 2, 1984, the plaintiff filed a motion to cite in Withington as a party defendant. The plaintiffs motion was denied, without articulation, on August 15, 1984. On August 20,1984, the FOIC’s motion to dismiss for lack of subject matter jurisdiction was granted by the court. The plaintiff claims that the court erred in denying his motion to cite in Withington and in dismissing his appeal.

We first consider the plaintiffs claim that the court’s denial of his motion to cite in Withington was an abuse of discretion. Since the motion was filed after the time to serve notice of the appeal had expired, denial of the motion was proper. See Sheehan v. Zoning Commission, 173 Conn. 408, 412-13, 378 A.2d 519 (1977); Village Creek Homeowners Assn. v. Public Utilities Commission, 148 Conn. 336, 340, 170 A.2d 732 (1961).

We next consider the principal issue raised by this appeal, namely, whether failure to serve notice of an administrative appeal upon a party of record, as required by § 4-183 (b), is a fatal jurisdictional defect. It is clear that such failure is a subject matter jurisdictional defect mandating dismissal. “The right to appeal from the decision of an administrative agency exists only under statutory authority. This right may be taken advantage of only by strict compliance with the statutory provisions by which it is created.” Newtown v. Department of Public Utility Control, 3 Conn. App. 416, 419, 488 A.2d 1286 (1985). See Basilicato v. Department of Public Utility Control, 197 Conn. 320, 322-24, 497 A.2d 48 (1985); Daniels v. New Haven Police Department, 3 Conn. App. 97, 99, 485 A.2d 579 (1985).

There is no error.


text:
    State of Connecticut v. James Basil
    (4098)
    Dupont, C. J., Borden and Schaller, Js.
    Argued November 26, 1985
    decision released February 4, 1986

      Martin J. Minnella, with whom, on the brief, was Eddi Z. Zyko, for the appellant (defendant).

      Marcia B. Smith, assistant state’s attorney, with whom, on the brief, was John A. Connelly, state’s attorney, for the appellee (state).
   Per Curiam.

The defendant was charged on November 27, 1984, with one count of sexual assault in the fourth degree, a violation of General Statutes § 53a-73a, and one count of risk of injury to a child, a violation of General Statutes § 53-21. On February 6, 1985, the defendant entered a so-called Alford plea of guilty to both counts. North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). After canvassing the plea and finding that the accused had made a voluntary and intelligent waiver, the court accepted the plea.

On March 22,1985, prior to sentencing, the defendant moved to withdraw his guilty pleas, claiming that his addiction to alcohol precluded a voluntary and intelligent waiver. This motion was denied and the defendant was sentenced on both counts to an effective term of two years incarceration followed by three years of probation.

The defendant has appealed, claiming that the trial court erred in accepting his guilty pleas while he was addicted to alcohol. We note at the outset that the defendant has appealed from the February 6, 1985 order of the court accepting the defendant’s guilty pleas. The proper procedure for review of the voluntariness of a guilty plea is to appeal from an adverse ruling on a motion to withdraw the plea. See State v. Childree, 189 Conn. 114, 119, 454 A.2d 1274 (1983); Practice Book §§ 720, 721. Because a motion to withdraw was made, and subsequently denied, we consider the defect technical and will disregard it in order to review the alleged deprivation of the defendant’s fundamental rights. State v. Godek, 182 Conn. 353, 355-56, 438 A.2d 114 (1980), cert. denied, 450 U.S. 1031, 101 S. Ct. 1741, 68 L. Ed. 2d 226 (1981); State v. Schaeffer, 5 Conn. App. 378, 385, 498 A.2d 134 (1985).

After a plea of guilty is accepted, the court is obligated to permit the defendant to withdraw his plea prior to sentencing upon proof of one of the grounds in Practice Book § 721. See Practice Book § 720; State v. James, 197 Conn. 358, 361, 497 A.2d 402 (1985). Section 721 of the Practice Book authorizes the withdrawal of a plea of guilty upon proof that the “plea was involuntary.” Practice Book § 721. The defendant would have us hold that one who is addicted to alcohol is incapable of making a voluntary waiver of his rights. A ruling of that breadth is inappropriate and lacks a basis in fact or law. The proper procedure is to review the record on a case by case basis to determine if the plea was, in fact, voluntary and intelligent. See State v. Lasher, 190 Conn. 259, 265, 460 A.2d 970 (1983); State v. Childree, supra, 119-20.

Based on the record before us, it is clear that the defendant was asked during the canvass if he was under the influence of alcohol. The defendant answered “no.” The defendant’s counsel made no statement or objection. The record does not reflect a confused mental state on the defendant’s part. To the contrary, the defendant unequivocally answered standard questions concerning his age, education, marital status and employment. It also appears that the defendant’s plea represents a reasonable election by the defendant given the nature of the crime, the uncontested evidence and the ultimate sentence.

For these reasons, we find that the defendant’s pleas were voluntary and knowing and the trial court’s refusal to allow the defendant to withdraw the pleas was proper.

There is no error.

       The defendant filed a motion to withdraw the plea on March 22, 1985. This motion was denied, apparently without written articulation. No transcript of an oral memorandum of decision relevant to the denial of this motion was provided to us on this appeal. The only documentation before us is the transcript of the original plea canvass, the motion to withdraw the pleas, and the judgment of conviction and sentence. The appellant has failed to meet his burden of providing an adequate record for review demonstrating that there has been an erroneous ruling warranting reversal. See State v. Periere, 186 Conn. 599, 609, 442 A.2d 1345 (1982). We, therefore, will review his allegations only to the extent allowed by the scant record provided.


author: Hull, J.

text:
    Maria D’Ulisse-Cupo v. Board of Directors of Notre Dame High School et al.
    (3900)
    Hull, Borden and Daly, Js.
    Argued December 10, 1985
    decision released February 4, 1986

      Joseph D. Garrison, for the appellant (plaintiff).

      Thomas E. Crosby, for the appellees (defendants).
   Hull, J.

The plaintiff appeals from the judgment for the defendants rendered by the trial court after it granted their motion to strike the plaintiffs complaint. We conclude that each of the three counts of the plaintiffs complaint stated a cause of action and, accordingly, we find that the trial court erred in striking the complaint.

The plaintiff brought suit against the named defendant and its principal, George Schmitz, for wrongfully discharging her as a teacher at Notre Dame High School. The plaintiffs complaint sounded in three counts. The facts as alleged by the plaintiff are as follows: The plaintiff was employed from September, 1981, until June, 1983, at Notre Dame High School as a teacher of Spanish and Italian under two successive one year contracts of employment. On or about March 21, 1983, Schmitz told the plaintiff that there would be no problem with her teaching certain courses and levels the following year, that everything looked fine for her rehiring for the next year, and that she should continue to organize an exchange program. Sometime between April 11 and 15, 1983, Schmitz or his authorized representative posted a written notice which stated: “All present faculty members will be offered contracts for next year.” Immediately upon her return from an exchange trip to Italy which she had organized for the school, the plaintiff was again informed that she would have a contract for the next year. The plaintiff relied to her detriment upon these oral and written promises.

The plaintiff further alleged that on or about May 4, 1983, she was told that her contract would not be renewed due to staff cuts in the English, religion and language departments. The plaintiff asserted that she was fully qualified for employment with the defendants and had greater seniority than other teachers whose contracts were not terminated. The plaintiff claimed that as a result of her wrongful discharge, she suffered the stress of unemployment, loss of esteem, damage to her professional career and reputation, lost wages and fringe benefits, and mental and physical pain and suffering.

The plaintiff alleged the following additional facts in support of her third count. On or about May 27,1983, Schmitz interviewed the plaintiff for a teaching position in the English department. The plaintiff was qualified to teach English. Prior to this interview, Schmitz had told the plaintiff and other teachers that the defendants would do everything possible to avoid discharging teachers. Despite these promises, the defendants hired an outside applicant as a one year replacement for the English position, rather than the plaintiff. The defendants did not offer the plaintiff substitute teaching positions, although she was both available and qualified for the positions. Nor did the defendants explore other alternatives to firing the plaintiff. The breach of these promises caused damage to the plaintiff.

The defendants moved to strike all counts of the plaintiffs complaint, asserting that the complaint failed to state a claim upon which relief could be granted because the plaintiff was an at-will employee and could, therefore, be terminated for any reason. The court granted the defendants’ motion as to the first count, reasoning that while an employer can be responsible in damages under the wrongful discharge doctrine if the former employee can prove that the dismissal was made for reasons which violate an important public policy, the plaintiff, as an at-will employee, was not within the class of persons sought to be protected by the wrongful discharge exception. The court also noted that the plaintiff was not “discharged from employment,” she merely was not rehired. In deciding the motion to strike the second count, the court, relying on 4 Restatement (Second), Torts § 552, ruled that the plaintiff could not prevail because she had not alleged that the defendants failed to exercise reasonable care or competence in obtaining or communicating the information to the plaintiff, which is a necessary element of negligent misrepresentation as propounded in the Restatement. As to the third count, the court held that a valid cause of action existed only if the court found that the plaintiff had alleged a binding contract between the plaintiff and the defendants or if the plaintiffs claims came within the doctrine of promissory estoppel. The court, applying the contract test to the plaintiff’s complaint, found that the third count did not state a cause of action since there was no allegation or inference that the plaintiff accepted the alleged offer. Concerning the claim of promissory estoppel, the court relied on 1 Restatement (Second), Contracts § 90, and concluded that while the plaintiff had alleged a promise by the defendants and her detrimental reliance, she had not, as required by the Restatement, alleged that the defendants “reasonably expected to induce action or forebearance” on her part.

“It is axiomatic that, in passing on a motion to strike based on a claim of failure to state a cause of action, we must take the facts alleged favorably to the pleader and view those facts in a broad fashion, not strictly limited to the allegations, but also including the facts necessarily implied by and fairly provable under them. Amodio v. Cunningham, 182 Conn. 80, 83, 438 A.2d 6 (1980); Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 545, 427 A.2d 822 (1980); Shelby Mutual Ins. Co. v. Della Ghelfa, 3 Conn. App. 432, 444-45, 489 A.2d 398 (1985); Greene v. Metals Selling Corporation, 3 Conn. App. 40, 41-42, 484 A.2d 478 (1984).” Schmidt v. Yardney Electric Corporation, 4 Conn. App. 69, 74, 492 A.2d 512 (1985).

Concerning all three counts, we note that the plaintiff claimed wrongful termination of her employment and wrongful discharge. Despite the use of these terms, it was clear in the trial court, and in this court, that the plaintiff was relying on the theory of implied contract arising out of the defendants’ alleged promises to reemploy her and her alleged detrimental reliance thereon. We consider the same analysis relating to wrongful discharge of an employee to apply to a case, such as this, where the claim is a wrongful failure to rehire after a one year contract.

The plaintiff acknowledges that an employee in Connecticut generally is subject to termination at the will of the employer or, by implication, termination by failure to rehire. The plaintiff claims, however, that her case falls within an exception to this general rule. In support of this claim, she relies on dictum in Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 479 A.2d 781 (1984). In that case, the court, in considering the claim of an employee that he relied upon an implied promise to discharge only for cause, stated: “[sometimes the promise [to discharge only for cause] has been found in the representations contained in an employee relations manual or handbook. In appropriate circumstances, such an agreement may arise when an employee, in reliance on an implied representation that the position will not arbitrarily be terminated, leaves his current employment, or otherwise acts in reasonable and significant reliance on the representation.” (Footnote omitted.) Magnan v. Anaconda Industries, Inc., supra, 564-65.

The defendants rely on the general rule that either party may terminate, at any time, employment which is indefinite as to duration and such termination is permissible with or without cause. Somers v. Cooley Chevrolet Co., 146 Conn. 627, 153 A.2d 426 (1959); Boucher v. Godfrey, 119 Conn. 622, 178 A. 655 (1935). The defendants also argue that the case of Fisher v. Jackson, 142 Conn. 734, 118 A.2d 316 (1955), is dis-positive of the plaintiffs contract claim. In that case, the plaintiff claimed that the defendant breached an oral agreement to employ him permanently. He sought damages from the defendant on the basis of his assertion that the defendant induced him to forego another job with another employer in exchange for the offer of permanent employment. The Supreme Court rejected the plaintiffs claim, stating that “[i]n the absence of a consideration in addition to the rendering of services incident to the employment, an agreement for a permanent employment is no more than an indefinite general hiring, terminable at the will of either party without liability to the other.” (Citation omitted.) Fisher v. Jackson, supra, 736. The defendants claim that, at most, their promises to the plaintiff amounted to an indefinite term of employment.

The recent case of Finley v. Aetna Life & Casualty Co., 5 Conn. App. 394, 499 A.2d 64, cert. granted, 198 Conn. 802, 501 A.2d 1213 (1985), is relevant to an analysis of the plaintiffs claims. Finley claimed that the defendant employer had expressed, through various means, assurance to its employees that it offered continued employment. He further alleged that during his twenty-four years with the defendant he had refused other job offers and employment opportunities in reliance on these promises made by the defendant. In finding that the trial court erred in directing a verdict, partly on the ground that Finley had failed to state a cause of action, this court relied on dictum in Magnan v. Anaconda Industries, Inc., supra, and Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980). The Finley court stated: “This theory of detrimental reliance on a promise is consistent with the language of Sheets v. Teddy’s Frosted Foods, Inc., supra, 475, approving, in the context of an employment relationship, ‘[t]he development of liability in contract for action induced by reliance upon a promise, despite the absence of common-law consideration normally required to bind a promisor; see Restatement (Second), Contracts § 90 (1973) ....’” Finley v. Aetna Life & Casualty Co., supra, 415. Finley thus establishes that an employer may be bound by an implied promise to fire an employee only for cause if the employee reasonably relies on that promise.

While the plaintiff did not claim an express contract in her first count, her allegations that the defendants promised that “all present faculty members will be offered contracts for next year,” as well as her allegation of other statements concerning rehiring, coupled with her claims that she relied to her detriment upon these oral and written promises, construed broadly and in her favor, fairly state a cause of action based upon an implied promise to rehire on which she relied. Because this count stated a cause of action based on promissory estoppel, the court erred in striking it.

The court struck the second count on the ground that an essential element of the tort of misrepresentation was not pleaded. The naked allegation of negligent misrepresentation is sufficient to withstand a motion to strike. Scribner v. O’Brien, Inc., 169 Conn. 389, 363 A.2d 160 (1975). “The defendants could have sought a more particular description of the negligence charged through a [request to revise]. See Doerr v. Woodland Transportation Co., 105 Conn. 689, 693, 136 A. 693 [1927]; Eckert v. Levinson, 91 Conn. 338, 341, 99 A. 699 [1917].” Scribner v. O’Brien, Inc., supra, 399-400. A party may plead legal effect in Connecticut, as long as the pleading is sufficient “fairly to apprise the adverse party of the state of facts which it is intended to prove. ...” Practice Book § 109. The plaintiffs complaint met this test and the court therefore erred in striking the second count.

The court also erred in striking the third count. The court, in granting the motion to strike, first found that while the plaintiff alleged a binding contract between the plaintiff and the defendants, she did not allege an acceptance of this offer. The court also found, as it did concerning negligent misrepresentation in the second count, that the plaintiff had not pleaded an element of a claim of promissory estoppel as defined in the Restatement. While there is nothing in the complaint which can be construed as an allegation of a binding contract, the complaint construed broadly, as it must be, sufficiently states a claim of promissory estoppel as described in our discussion of the first count to withstand a motion to strike. As to the court's decision that the plaintiff did not allege all of the necessary elements, the reasoning and conclusions concerning the second count apply.

There is error, the judgment is set aside and the case is remanded for further proceedings in accordance with law.

In this opinion the other judges concurred.

       The second and third counts of the plaintiffs complaint included all of the allegations of the first count except paragraph eleven which alleged that “the defendants wrongfully terminated the employment of the plaintiff in breaking their oral and written promises of continued employment.”

       4 Restatement (Second), Torts § 552 provides in pertinent part: “(1) One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.”

       1 Restatement (Second), Contracts § 90 provides in pertinent part: “A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. . . .”

       We consider the terms wrongful termination of employment and wrongful discharge to be synonymous.

       We note that this court has questioned the continued validity of Fisher. Finley v. Aetna Life & Casualty Co., 5 Conn. App. 394, 415, 499 A.2d 64, cert. granted, 198 Conn. 802, 501 A.2d 1213 (1985).


text:
    Iris W. Lord v. Eleftherios Stavrakis
    (3475)
    Hull, Daly and Bieluch, Js.
    Submitted on briefs November 15,1985
    decision released February 4, 1986

      Robert J. Guendelsberger and James F. McKenna filed a brief for the appellant-appellee (defendant).

      Antoinette E. Grenier and Ann Fisher filed a brief for the appellee-appellant (plaintiff).
   Per Curiam.

The plaintiff instituted this action to recover money loaned to the defendant on several occasions, most often for the purchase of real estate and once for the purchase of a ring. The defendant counterclaimed alleging that certain real estate purchased by him was conveyed to the plaintiff solely to secure payment of a loan, and was to be reconveyed to him upon the performance of certain conditions. The court rendered judgment for the plaintiff on the complaint in the amount of $45,872.58 including interest, and on the counterclaim, finding that the defendant had not proven a resulting trust by clear and convincing evidence. The defendant appeals the court’s judgment on his counterclaim, claiming principally that the court erred in failing to find that a resulting trust had been created in his favor by his conveyance of the real estate to the plaintiff.

“A resulting trust arises ‘by operation of law at the time of a conveyance when the purchase money for property is paid by one party and the legal title is taken in the name of another.’ Farrah v. Farrah, 187 Conn. 495, 500, 446 A.2d 1075 (1982). It ‘arises to enforce presumed or inferred intent, usually in the absence of any element of fraud . . . Zack v. Guzauskas, [171 Conn. 98, 103, 368 A.2d 193 (1976)].” Spatola v. Spatola, 4 Conn. App. 79, 82, 492 A.2d 518 (1985).

A resulting trust is not, however, automatic in such circumstances. Rather, “[t]he presumed intent from which the law infers a trust may be rebutted by proof of contrary intent.” (Citations omitted.) Farrah v. Farrah, supra, 500. “In deciding whether the property was wrongfully appropriated or retained and what the intent of the parties was at the time of the conveyance, the court [must] rely upon its impression of the credibility of the witnesses. ‘Intent is a question of fact, the determination of which is not reviewable unless the conclusion drawn by the trier is one which could not reasonably be drawn.’ Whitney v. Whitney, 171 Conn. 23, 33, 368 A.2d 96 (1976).” Spatola v. Spatola, supra, 82. We have reviewed the facts as found by the court and conclude that the court reasonably could have decided as it did.

The defendant raised two other issues in his appeal. We have reviewed those claims and find them to be without merit. They require no further discussion.

There is no error.

       The plaintiff cross appealed, attempting to raise the sole issue of whether the court erred by modifying its judgment to give the defendant credit for certain interest payments made on one of the loans involved in the case. Since the factual bases of the court’s modification were not spelled out, we decline to consider this matter. The plaintiff did not file a motion under Practice Book § 3082 to have the trial court’s decision on the motion to modify articulated. “Since the [plaintiff] has failed to supply a record presenting the trial court’s rationale, as is his burden, we are disinclined to view as clearly erroneous the trial court’s determination . . . .” Steve Viglione Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 714, 462 A.2d 1037 (1983).


text:
    Carlyle Real Estate Limited Partnership v. Three D Departments, Inc.
    (3544)
    Hull, Spallone and Daly, Js.
    Argued January 14
    decision released February 4, 1986

      James J. Tancredi, with whom, on the brief, was John B. Nolan, for the appellant (plaintiff).

      Ross G. Fingold, with whom, on the brief, were Cindy S. Schwartz and Leonard Bieringer, for the appellee (defendant).
   Per Curiam.

There is no error.


author: Borden, J.

text:
    State of Connecticut v. Keith Cosby
    (2507)
    Hull, Borden and Daly, Js.
    Argued December 11, 1985
    decision released February 11, 1986

      Erskine D. McIntosh, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      MichaelE. O’Hare, deputy assistant state’s attorney, with whom, on the brief, were Eugene J. Callahan, state’s attorney, and John Smirga and John M. Massameno, assistant state’s attorneys, for the appellee (state).
   Borden, J.

The defendant appeals from the judgment of his conviction, after a jury trial, of attempted larceny in the first degree by extortion, in violation of General Statutes §§ 53a-49 (a) and 53a-122, and of larceny in the fourth degree, in violation of General Statutes § 53a-125 (a). The sole issue in this appeal is whether the defendant’s constitutional right of confrontation includes the right to impeach a state’s witness by use of a prior narcotics conviction, so as to afford him an Evans review of the trial court’s preclusion of such impeachment. See State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). We hold that it does not, and find no error.

The victim, Jane Regnemer, lost her purse while shopping. She was then staying at the home of a friend, Susan Virgilio. Over the next several days, Regnemer received many telephone calls from the defendant in which he indicated that he had her purse. He demanded money, sex and drugs in exchange for its return, and he threatened to destroy it unless she complied. After being notified by her bank that someone was trying to cash one of her checks, she called the police. On their advice, when the defendant next called she arranged to meet him in a parking lot under police surveillance. The defendant approached her car, she confirmed that he was the man who had called her, and she gave a prearranged signal to the police who arrested the defendant. The purse was subsequently recovered from the apartment of the defendant’s girlfriend.

The trial took place in mid-March, 1982. Virgilio testified that upon returning from shopping Regnemer told her that she had lost her purse. She further testified that she had received, at her home, numerous telephone calls for Regnemer, that she spoke to the caller when Regnemer was not able to come to the phone, and that the caller always insisted that Regnemer come to the phone immediately. She also listened in on some of the conversations between the defendant and Regnemer, and testified regarding those conversations. She further testified that after the defendant was arrested, he called her home and threatened her life and Regnemer’s life.

Prior to Virgilio’s testimony, the state moved in limine to exclude evidence of her three prior felony narcotics convictions, one on March 28, 1972, and two in August, 1972. The defendant objected to the state’s motion, but did not claim in his objection that he was constitutionally entitled to cross-examine Virgilio by use of those convictions. The trial court, performing its classic and traditional weighing process; see State v. Nardini, 187 Conn. 513, 447 A.2d 396 (1982); found that the prejudicial effect of the convictions outweighed their probative value on Virgilio’s veracity, and exercised its discretion by granting the state’s motion in limine. The defendant excepted.

The defendant’s claim on appeal is limited to the argument that the trial court’s ruling denied him his constitutional rights of confrontation under the federal and state constitutions. He does net challenge the discretionary ruling of the trial court in weighing the probative value of the prior convictions against their prejudicial effect. See State v. Heinz, 3 Conn. App. 80, 86-87, 485 A.2d 1321 (1984). Recognizing that he did not raise the constitutional claim before the trial court, the defendant seeks review of his claim in this court under the “by now all too familiar Evans bypass.” State v. Grant, 6 Conn. App. 24, 27, 502 A.2d 945 (1986). The state concedes in its brief that the defendant’s claim is reviewable under Evans. We conclude, nonetheless, that it is not reviewable under Evans, and we therefore do not consider it.

We have recently pointed out that an Evans review involves a three-pronged analysis: (1) whether the record supports the defendant’s claim that the trial court’s action raises a question of fundamental constitutional dimension; (2) if so, whether the trial court’s action was erroneous; and (3) if there was error, whether it requires reversal. State v. Grant, supra. Careful analysis of the defendant’s claim discloses that precluding the defendant from cross-examining Virgilio on the basis of her prior narcotics convictions does not raise a question of fundamental constitutional dimension. “Every evidentiary ruling which denies a defendant a line of inquiry to which he thinks he is entitled is not constitutional error. In this instance, the defendant has put a constitutional tag on a nonconstitutional claim.” State v. Vitale, 197 Conn. 396, 403, 497 A.2d 956 (1985).

In Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1973), the Supreme Court held that cross-examination of a state’s witness for bias or motive, based on the status of the witness as an adjudicated juvenile delinquent then on probation, was within the defendant’s constitutional right of confrontation as “a proper and important function of the constitutionally protected right of cross-examination.” Id., 316-17. The Court drew the distinction between, on the one hand, cross-examination on the basis of bias or motive which is constitutionally protected and, on the other hand, impeachment by “[t]he introduction of evidence of a prior crime [which] is ... a general attack on the credibility of the witness.” Id. Cross-examination of a witness by use of his prior convictions is one way by which “the cross-examiner intends to afford the jury a basis to infer that the witness’ character is such that he would be less likely than the average trustworthy citizen to be truthful in his testimony.” Id. In a brief concurring opinion, Justice Stewart made clear the limited boundary of the holding of the case:

“I would emphasize that the Court neither holds nor suggests that the Constitution confers a right in every case to impeach the general credibility of a witness through cross-examination about his past delinquency adjudications or criminal convictions.” Id., 321.

There is some authority for a more expansive reading of Davis v. Alaska, supra, than that of Justice Stewart. See, e.g., State v. Chaisson, 458 A.2d 95 (N.H. 1983); State v. Conroy, 131 Ariz. 528, 642 P.2d 873 (1982); State v. Hillard, 398 So. 2d 1057 (La. 1981). The weight of authority, however, reads Davis v. Alaska as Justice Stewart did, namely, that the constitutional right of confrontation embraces cross-examination for bias, interest or motive, but that the use of prior convictions to impeach general credibility is subject only to the rules of judicial discretion. See, e.g., Mills v. Estelle, 552 F.2d 119, 122-23 (5th Cir. 1977), cert. denied, 434 U.S. 871, 98 S. Ct. 214, 54 L. Ed. 2d 149 (1977); Smith v. United States, 392 A.2d 990, 991-93 (D.C. Cir. 1978); State v. Russell, 625 S.W.2d 138, 141-42 (Mo. 1981); Bilbrey v. State, 594 S.W.2d 754, 756-58 (Tex. Cr. App. 1980).

Our cases have followed Davis v. Alaska, supra, in holding that cross-examination for bias, interest or motive is a constitutionally protected right. See, e.g., State v. Ortiz, 198 Conn. 220, 502 A.2d 400 (1985); State v. Wilson, 188 Conn. 715, 720, 453 A.2d 765 (1982); State v. Corley, 177 Conn. 243, 246, 413 A.2d 826 (1979). They have also, at least implicitly, treated cross-examination for other purposes or based on less vital forms of attack on credibility as deserving of less protection. See, e.g., State v. Vitale, supra, 402-403 (purpose of cross-examination to elicit facts bolstering defendant’s version of events); State v. Gaynor, 182 Conn. 501, 509, 438 A.2d 749 (1980) (questions relating to witness’ reliability not based on bias or motive). There is no Connecticut Supreme Court case holding that the use of a prior conviction of a state’s witness, to impeach his general credibility, is within the defendant’s constitutional right of confrontation.

“Courts are continually called upon to draw lines on a case by case basis.” Cologne v. Westfarms Associates, 192 Conn. 48, 81, 469 A.2d 1201 (1984) (Peters, C. J., dissenting). The line drawn by the United States Supreme Court in Davis v. Alaska, supra, between bias, interest or motive, and general credibility, may not be readily apparent at first glance. Nevertheless, there are two bodies of case law which raise that line into bold relief. The first is the case law regarding the impeachment use of pending criminal charges, which are recognized for their relevance to bias, interest or motive. See State v. Ortiz, supra. The second is the case law regarding the impeachment use of prior criminal convictions. See State v. Geyer, 194 Conn. 1, 480 A.2d 489 (1984).

The cases dealing with the admissibility of pending criminal charges for impeachment purposes clearly establish that there is an “irreducible minimum of cross-examination” guaranteed by the confrontation clause of the sixth amendment. State v. Ortiz, supra, 224. “ ‘Cross-examination to elicit facts which tend to show motive, interest, bias or prejudice is a matter of right, and although the extent of such cross-examination may often rest in the sound discretion of the court, a denial of the right, or its undue restriction, will constitute error. . . . It is generally held that cross-examination for this purpose is a substantial legal right which may not be abrogated or abridged at the discretion of the court to the prejudice of the cross-examining party.’ ” (Citations omitted.) (Emphasis added.) State v. Cooper, 182 Conn. 207, 213, 438 A.2d 418 (1980). Thus, because pending criminal charges are widely recognized for their particular relevance to a witness’ interest in testifying; State v. Ortiz, supra, 224; State v. Ferrara, 176 Conn. 508, 512, 408 A.2d 265 (1979); it is violative of the confrontation clause when a court completely refuses to allow any inquiry for the purpose of exposing such areas. State v. Ortiz, supra; State v. Milum, 197 Conn. 602, 608, 500 A.2d 559 (1985).

The relevance of prior convictions, however, is less clear than the relevance of evidence of pending criminal charges, and “remains the subject of a lively policy debate.” Lilly, Evidence § 81, p. 292. Nevertheless, the case law regarding the use of prior convictions for impeachment purposes has fashioned, albeit indirectly, certain definitional perimeters around the legal concept of “general credibility” referred to by Justice Stewart in Davis v. Alaska. We next turn briefly to that case law in order to elucidate Justice Stewart’s point.

“Under the standards that we have recognized, prior convictions that are admissible for impeachment purposes may be segregated into two general categories. First are those crimes that by their very nature indicate dishonesty or tendency to make false statement. State v. Nardini, [187 Conn. 513, 523-24, 447 A.2d 396 (1982)]. Beyond the obvious violations such as perjury or false statement, we have recognized that crimes involving larcenous intent imply a general disposition toward dishonesty such that they also fall within this category. State v. Carter, [189 Conn. 631, 643, 458 A.2d 379 (1983)]. Convictions of this sort obviously bear heavily upon the credibility of one who has been convicted of them. . . . The second category involves convictions for crimes that do not reflect directly upon the credibility of one who has been convicted of them. State v. Nardini, supra. The theory behind the admissibility of these convictions as evidence of credibility posits that ‘conviction of a crime demonstrates a bad general character, a “general readiness to do evil” .... Gertz v. Fitchburg R. Co., 137 Mass. 77, 78 (1884) (Holmes, J.).’ State v. Nardini, supra, 523-24.” (Emphasis added.) State v. Geyer, supra, 12.

In the present case, the witness had been previously convicted of narcotics violations, convictions which fall within the second Geyer category and are relevant to credibility in only the most general sense. State v. Geyer, supra, 13. It is the “opportunity to cross-examine . . . which forms the core of the confrontation clause.” (Citation omitted.) (Emphasis added.) State v. Jackson, 198 Conn. 314, 317-18, 502 A.2d 865 (1985). The defendant was afforded ample opportunity to cross-examine this witness. Thus, the defendant’s attempt to constitutionalize the trial court’s exclusion of this evidence under the guise of the confrontation clause would necessitate an expansion of the core of that constitutional guarantee to include even the most general attacks upon credibility. We recognize that “the quest for truth” frequently requires that cross-examination legitimately enter into areas collateral to the main issues. State v. Denby, 198 Conn. 23, 31, 501 A.2d 1206 (1985). We are also aware that the primary interest protected by the confrontation clause is the right of cross-examination. State v. Rawls, 198 Conn. 111, 117, 502 A.2d 374 (1985). We refuse, however, “to slide too easily from confrontation to cross-examination.” California v. Green, 399 U.S. 149, 174, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970) (Harlan, J., concurring). The confrontation clause did not merely codify the common law rules of evidence. Id., 155. We refuse to trivialize that constitutional mandate by extending its scope into areas of general credibility which lie at the outer limits of the common law of cross-examination.

We, therefore conclude that the defendant’s claim on appeal fails to pass the first of the three requirements for an Evans review, namely, that the record supports a claim that the trial court’s action raises a question of fundamental constitutional dimension. State v. Grant, supra. Accordingly, we do not consider whether the ruling was erroneous and, if so, whether the error requires reversal.

We are aware that this conclusion means that we do not review the defendant’s sole claim on appeal. This highlights a phenomenon that we cannot but note with dismay. That phenomenon is the great frequency with which the principal issues in many of the criminal appeals before this court arrive necessarily swaddled in the hopeful mantle of Evans because trial counsel failed to present the appellate issue properly to the trial court in the first place. See, e.g., State v. Alston, 5 Conn. App. 571, 501 A.2d 764 (1985); State v. Abbott, 5 Conn. App. 441, 449 A.2d 437 (1985); State v. Evans, 5 Conn. App. 113, 497 A.2d 73 (1985).

It is clear that the rule of review first articulated in Evans is a rule of principled appellate discretion designed to apply “[o]nly in [the] most exceptional circumstances . . . State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973). It is designed to apply in such circumstances where, even in the absence of the defendant’s having raised the issue in the trial court, “the record adequately supports [his] claim that [he] has dearly been deprived of a fundamental constitutional right and a fair trial.” (Emphasis added.) Id., 70. It is, therefore, like its first cousin the plain error rule; see Finley v. Aetna Life & Casualty Co., 5 Conn. App. 394, 402-403, 499 A.2d 64 (1985); a rule aimed at preserving the fundamental integrity of the adjudicative process and avoiding fundamental injustice, and not at simply detecting error, even of a constitutional nature.

It is not designed to protect defendants or their counsel who, “through neglect, inattention or as a trial strategy refrain from making proper objection or raising in the trial court any available constitutional defenses, confident that if the outcome of the trial proves unsatisfactory without making objections and taking exceptions and raising any available constitutional issue they may still prevail by assigning error or raising the constitutional issue for the first time on the appeal.” State v. Evans, supra, 67. Thus, the “Evans trial court bypass to this court is a narrow constitutional path and not the appellate Champs Elysees.” State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982). Apparently, the defense trial and appellate bar has not heeded this “word to the wise”; id.; and has continued to regard it, if not as a Champs Elysees, at least as a Boulevard Saint Michel.

The policies behind the requirement that claims be made at trial in order to be reviewed on appeal are “both ancient and sound”; State v. Hinckley, 198 Conn. 77, 81, 502 A.2d 388 (1985); and have been often stated. It is rare that a claim which the defendant did not think important enough to raise at trial will require reversal of his conviction. Requiring such claims to be made at trial permits their correction before it is too late. It avoids needless multiple proceedings which are neither in the defendant’s nor the public’s interest, and which contribute to the economic waste of court congestion. State v. Kurvin, 186 Conn. 555, 563-66, 442 A.2d 1327 (1982); State v. Torrence, 1 Conn. App. 697, 704-705, 483 A.2d 622 (1984), aff’d, 196 Conn. 430, 493 A.2d 865 (1985).

The trial of a criminal case, and the ensuing appeal from a judgment of conviction, are not separate and distinct proceedings divorced from one another. They are part of the continuum of the process of adjudication. Stated in the most elementary terms, the trial seeks to determine whether the state has proven the defendant guilty beyond a reasonable doubt. The appeal seeks to determine whether, in the process of that adjudication, the trial judge committed error which requires either a new trial or a judgment of acquittal.

The trial judge presiding over a criminal case is not engaged in taking a Kafkaesque academic test which he may be determined on appeal to have failed because of questions never asked of him or issues never clearly presented to him. Criminal defendants and their counsel, like civil litigants and their counsel; see Montanaro Bros. Builders, Inc. v. Snow, 4 Conn. App. 46, 492 A.2d 223 (1985); must take some modicum of responsibility for conserving scarce judicial resources. They must diligently ensure that, “subject to certain sharply delineated constitutional exceptions”; State v. Kurvin, supra, 564; an appeal presents for review rulings which the trial court made, and that the appeal is thus truly part of the adjudicative continuum. The claim raised by the defendant in this appeal falls neither within that continuum nor within the limited exceptions to it.

There is no error.

In this opinion the other judges concurred.

       Although the defendant relies on both the sixth amendment to the United States constitution and article first, § 8 of the Connecticut constitution, he offers no separate analysis of the Connecticut constitution as a basis for disparate treatment between the two. We see no reason to undertake such an analysis. See State v. Braxton, 196 Conn. 685, 688 n.2, 495 A.2d 273 (1985).


text:
    John F. Rowlson Company v. Augustus J. Simmons
    (4305)
    Hull, Spallone and Bieluch, Js.
    Argued January 14
    decision released February 11, 1986

      Augustus J. Simmons, pro se, the appellant (defendant).

      Paul H. Lichtenberger, for the appellee (plaintiff).
   Per Curiam.

There is no error.