author: LAVINE, J.

text:
    STATE OF CONNECTICUT v. RUSSELL KIRBY
    (AC 32562)
    Lavine, Robinson and Lavery, Js.

      Argued April 23 —
    officially released July 24, 2012

      W. Theodore Koch III, special public defender, with whom, on the brief, was William T. Koch, Jr., special public defender, for the appellant (defendant).

      Lawrence J. Tytla, supervisory assistant state’s attorney, with whom, on the brief, were Michael L. Regan, state’s attorney, and Paul J. Narducci, senior assistant state’s attorney, for the appellee (state).
   Opinion

LAVINE, J.

The defendant, Russell Kirby, appeals from the 2010 judgment of conviction, rendered after a jury verdict, of kidnapping in the second degree in violation of General Statutes § 53a-94 and assault in the third degree in violation of General Statutes § OSa-Ol. On appeal, the defendant claims that (1) the distinction between kidnapping and unlawful restraint is unconstitutionally vague as applied to him and (2) the trial court failed to temper the vagueness in the distinction in its charge to the jury. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At the time of the incident, the victim, Leslie Buck, was a fifty-seven year old second grade teacher in the Stonington public school system. She had been a teacher for more than thirty years and was a member of Alpha Delta Kappa (sorority), an honorary sorority for teachers. The sorority held dinner meetings at the Mystic Hilton on the first Thursday of the month, beginning at 6:30 p.m. and ending at approximately 8 p.m. On May 2, 2002, the victim attended a sorority meeting and left the Hilton shortly after 8 p.m. She informed her friend, Judith Barber, and others that, on her way home, she intended to take dessert to her elderly mother, Katherine Edmonson.

At approximately 10:30 p.m., Timothy Thornton, a Stonington patrol officer, was dispatched to the Buck residence at 77 Masons Island Road in Mystic after Charles Buck (Buck), the victim’s husband, telephoned the Stonington police department to report that the victim was late returning from the sorority meeting. After obtaining information from Buck, Thornton went in search of the victim at a supermarket and drugstore where she was known to shop. At approximately 10:45 p.m., Buck telephoned Barber and asked her if she knew the victim’s whereabouts. Barber told Buck that the victim had intended to visit Edmonson, but Buck said he had driven past Edmonson’s house, which was dark.

At 11:07 p.m., Buck again telephoned the Stonington police department to report that the victim had returned home. The dispatcher, Allyson Gomes, spoke with the victim and thought that she sounded upset. Gomes so informed Thornton, and he returned to the Buck residence. When he arrived, Thornton saw the victim’s white Buick in the garage and found the victim crying hysterically in the kitchen. While he tried to calm the victim, Thornton observed that the victim’s hair was in disarray, there were marks under her eyes, red marks around her wrists and that her stockings were tom at the knees. He summoned an ambulance. The victim took Thornton into the garage and described what had happened to her when she first returned from the sorority meeting. The victim complained of chest pains.

When the ambulance arrived, Jeremy Knapp, an emergency medical technician, interviewed and examined the victim. Knapp described the victim as distraught. She complained of pain in her wrists, hands, shoulders, the right side of her chest and stomach. The victim told Knapp that she had been kidnapped. According to Knapp, the victim had severe shoulder pain because her hands had been tied behind her back for a long time, her hands were swollen and bruised and she had abrasions on her knees. The victim’s chest and stomach pain were the result of having been punched, and her knees were injured when she was thrown to the floor. The victim also had two small lacerations on the back of her neck at the base of her skull. The victim was taken via ambulance to Lawrence and Memorial Hospital in New London.

When the victim arrived at the hospital, she was calmer and able to tell Molly Cichon, an emergency room nurse, what had happened to her. The incident began in her garage when she first returned from the sorority meeting. She said that the red marks on the back of her neck were caused by a stun gun. Cichon noted bruises on the victim’s neck and petechiae on her face suggestive of strangulation, lacerations on her foot and abrasions on her legs and hands. The victim reported that her hands had been bound, which was consistent with the injuries to her hands and wrists. The victim was concerned about her ribs, but X rays revealed no broken bones. The victim was discharged from the hospital at 3 a.m. on May 3, 2002.

The victim again met with Thornton and other officers to explain her concern for Edmonson’s safety, as the defendant had taken the victim’s key ring, which included a key to Edmonson’s home. The police conducted security checks at both the Edmonson and Buck residences.

While the victim was being examined at the hospital, the police identified the defendant as a suspect. They had reason to believe that the defendant was on foot and searched unsuccessfully for his pickup truck in the vicinity of the Buck residence. After Thornton and Sergeant Keith Beebe, patrol supervisor, and other officers secured the homes of the victim and Edmonson, they met an officer from the Ledyard police department and proceeded to the defendant’s home on an unlit, unpaved road in a rural area of Ledyard.

The five officers arrived at the defendant’s home at approximately 4:30 a.m. on May 3, 2002. The defendant was dressed in street clothes when he promptly answered Thornton’s knock on the door. Although he was asked to step outside, the defendant invited the officers into his home. When Beebe asked the defendant if he knew why the officers were there, the defendant stated, “yes.” The defendant also stated, “yes,” when asked whether he had tied up the victim and driven her around and, when asked why he did so, stated that he “needed the money.” He also stated that he was sorry, he had not intended to harm the victim and he “believed that he had a problem.” He also told the police that he had entered the victim’s garage through an unlocked breezeway door. When asked, the defendant told Beebe that the victim’s key ring was on his kitchen counter. Bryan Schneider, a patrol officer, took custody of the key ring. Beebe placed the defendant under arrest and advised him of his Miranda rights. Schneider handcuffed the defendant and took him to the Stonington police department at approximately 5 a.m.

At the police department, Schneider advised the defendant again of his rights and prepared a waiver of rights form for him to sign. Although the defendant had cooperated with the police in his home, he did not cooperate with them at the police station. He refused to sign the advisement of rights form and stated that he knew that he had done wrong and “didn’t want to go round and round with [the police] with a statement . . . .”

David Knowles, a detective sergeant with the Stoning-ton police department, searched the victim’s Buick. On the floor behind the operator’s seat, Knowles found a green canvas bag, United States Army issue, that contained a United States Army issue .45 caliber Colt 1911 pistol, a magazine for the pistol that contained seven live rounds, two electronic stun guns, pieces of rope, a blue rubber ball, a clear plastic bottle containing liquid, a hickory log, two pairs of men’s eyeglasses and a pair of eyeglasses that were identified by a Stonington optician, Clayton Cobb, as belonging to the victim. The bag also contained bandanas and several pairs of white cotton gloves similar to items found in the defendant’s residence. Pursuant to a search of the defendant’s home on May 7, 2002, the police seized a case for the Colt 1911 pistol and instructions for the stun gun found in the green bag in the Buick. The defendant was charged with a number of crimes. See footnote 1 of this opinion.

Debra Turner, one of the defendant’s neighbors, testified that on May 2, 2002, she went to the defendant’s home at 7:45 p.m., to take him a plate of food. Although the defendant usually wore jeans, a T shirt or flannel shirt, and a bandana around his head, that night he was dressed to go out and was wearing his toupee. When Turner took food to the defendant, she usually sat with him to talk and have a beer, but on that occasion, the defendant hustled her out of the house, telling her that his brother was coming.

The defendant testified that he was a longtime friend of Buck. Shortly before May 2, 2002, Buck had given the defendant a check in the amount of $760, drawn on a joint account of Charles Buck and Leslie Buck, as payment for having cleared some land. The defendant disliked being paid from joint accounts.

The defendant testified that on May 2, 2002, he left home at 6:10 p.m. to mail some letters and to work on a bulldozer that was stored outdoors. He dressed up despite the fact that it was raining. The defendant also testified that while he was driving his truck through downtown Mystic, his truck stalled after he drove through a puddle. He worked on the truck for one hour but was not able to jump-start it with his stun guns, so he took his green bag and walked to the Buck residence to get help.

He further testified that he arrived at the Buck residence at approximately 8:30 p.m. and entered through a door to the breezeway. No one was at home so he sat on the stairs in the garage. Ten minutes later the garage door opened, and the victim sped in and skidded to a stop. When the victim saw him, she “exploded,” complaining about the $760 check. The victim, who was wearing high heels and had a large set of keys in her right hand and a red pocketbook in the other, began to beat the defendant and chase him around her Buick. When there was nowhere for the defendant to go, he wrestled the victim to the ground. He tried to Taser the victim in the back to see if she would slow down, but the Taser had no effect. The defendant then took a piece of cotton clothesline from a bench and tied the victim’s hands behind her back. The defendant also testified that he and the victim then agreed to talk to Buck, who supposedly was at a local bar, to settle their dispute over the money. The defendant got the victim off the floor and placed her, still bound, into the Buick. Rather than look for Buck, the defendant took a circuitous route to his home so he could get parts to repair his truck. The trip took twenty minutes.

When he was sure that the victim had calmed down, the defendant untied her hands. The defendant gathered the parts he needed to repair his truck and showed the victim his coin collection. The defendant and the victim then got into the Buick and the defendant continued his circuitous driving. As the defendant was traveling on Interstate 95 near exit eighty-nine, he heard a noise and thought there was a piece of metal in the rear tire. He stopped underneath an overpass, turned off the engine, took the keys and got out to look at the rear of the Buick. As he approached the back of the vehicle, the car sped away. According to the defendant, he walked for more than one hour to Mystic where he repaired his truck and then went home to bed. The defendant testified that he had tied up the victim only to prevent her from assaulting him and that he had no money problems.

At trial, the defendant moved to dismiss the count of kidnapping in the second degree because, he alleged, given the facts in the case, the statutory definitions of the crimes of kidnapping in the second degree and unlawful restraint in the first degree were “anything but clear and unequivocal.” The trial court denied the motion but granted the defendant’s request to instruct the jury on unlawful restraint in the first degree as a lesser included offense. The jury found the defendant guilty of kidnapping in the second degree and assault in the third degree. The court sentenced the defendant to twenty-one years in prison. The defendant appealed.

I

The defendant’s first claim is that the difference between kidnapping in the second degree pursuant to § 53a-94 (a) and unlawful restraint in the first degree pursuant to General Statutes § 53a-95 (a) is unconstitutionally vague as applied to him. See State v. Salamon, 287 Conn. 509, 604, 949 A.2d 1092 (2008) (Zarella, J., concurring in part and dissenting in part) (“[o]ur case law has recognized that, under certain factual circumstances, unlawful restraint in the first degree may constitute a lesser included offense of the crime of kidnapping in the first or second degree”). The defendant claims that the difference between the intent to abduct the victim to prevent her liberation, which is required for kidnapping in the second degree, and the intent to restrain the victim to interfere substantially with her liberation, which is required for unlawful restraint in the first degree, is ambiguous. He further claims that the crucial difference between kidnapping in the second degree and unlawful restraint in the first degree, as applied to him, is whether he intended to abduct the victim to prevent her liberation or whether he intended to restrain the victim to substantially interfere with her liberty. See footnotes 13 and 14 of this opinion. Although the defendant’s brief provides a lengthy and detailed analysis of our Supreme Court’s several efforts to distinguish abduct from restrain pursuant to the relevant statutes, he cannot prevail because he failed to demonstrate that the language of the kidnapping statute, § 53a-94 (a), was unconstitutionally vague as applied to him, given the facts of this case.

The de novo standard of review is applicable when an appellate court is deciding whether a statutory provision is unconstitutionally vague. See State v. Knybel, 281 Conn. 707, 713, 916 A.2d 816 (2007). As our Supreme Court has instructed, when reviewing a claim of vagueness, we are required first “to restate the common-law rule that everyone is presumed to know the law and that ignorance of the law excuses no one from criminal sanction.” Id. “Our law requires that a penal statute define [a] criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. . . . [This concept] embodies two central precepts: the right to fair warning of the effect of a governing statute or regulation and the guarantee against standardless law enforcement. . . . [T]he [most] important aspect of the vagueness doctrine is not actual notice . . . but . . . the requirement that a legislature establish minimal guidelines to govern law enforcement. . . . Thus, [i]n order to surmount a vagueness challenge, a statute [must] afford a person of ordinary intelligence a reasonable opportunity to know what is permitted or prohibited . . . .” (Internal quotation marks omitted.) Id., 713-14.

“[A] statute is not void for vagueness unless it clearly and unequivocally is unconstitutional, making every presumption in favor of its validity. ... To demonstrate that [a statute] is unconstitutionally vague as applied to him, the [defendant] therefore must . . . demonstrate beyond a reasonable doubt that [he] had inadequate notice of what was prohibited or that [he was] the victim of arbitrary and discriminatory enforcement. ... If the meaning of a statute can be fairly ascertained a statute will not be void for vagueness since [m]any statutes will have some inherent vagueness, for [i]n most English words and phrases there lurk uncertainties. . . . References to judicial opinions involving the statute, the common law, legal dictionaries, or treatises may be necessary to ascertain a statute’s meaning to determine if it gives fair warning. .. .

“The United States Supreme Court has set forth standards for evaluating vagueness. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. ... [A] law forbidding or requiring conduct in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates due process of law. . . .

“Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications. . . . Therefore, a legislature [must] establish minimal guidelines to govern law enforcement.” (Citation omitted; internal quotation marks omitted.) State v. Winot, 294 Conn. 753, 759-60, 988 A.2d 188 (2010).

“[W]here the punishment imposed is only for an act knowingly done with the purpose of doing that which the statute prohibits, the accused cannot be said to suffer from lack of warning or knowledge that the act which he does is a violation of law.” (Internal quotation marks omitted.) Id., 766. “Provided that conduct is of a sort widely known among the lay public to be criminal ... a person is not entitled to clear notice that the conduct violates a particular criminal statute. It is enough that he [or she] knows that what he [or she] is about to do is probably or certainly criminal.” (Emphasis in original; internal quotation marks omitted.) Id., 770-71.

Our Supreme Court has recognized the defendant’s claim that there is ambiguity between the words abduct and restrain, as defined by our statutes. “[W]hen an individual intends to interfere substantially with another person’s liberty, he also intends to keep that person from escaping, at least for some period of time; in other words, he intends to prevent that person’s liberation. Thus, the point at which an intended interference with liberty crosses the line to become an intended prevention of liberation is not entirely clear.

“At least in a case not involving the secreting of a victim in a place that he or she is unlikely to be found; see General Statutes § 53a-91 (2) (A); it is the intent element only that differentiates an abduction — the sine qua non of the crime of kidnapping — from a mere unlawful restraint, and the relatively minor penalties attendant to the latter offense.” (Emphasis in original.) State v. Salamon, supra, 287 Conn. 534.

Because our Supreme Court concluded that the language of §§ 53a-94 (a) and 53a-95 (a) does not elaborate on the intent element of the crimes, it looked to common-law kidnapping principles, the concerns addressed by the Model Penal Code and the history and development of modem kidnapping statutes. Id., 535-39. “Among the evils that both the common law and later statutory prohibitions against kidnapping sought to address were the isolation of a victim from the protections of society and the law and the special fear and danger inherent in such isolation.” Id., 536. The present day kidnapping statutes were drafted as part of a comprehensive revision of this state’s criminal statutes that the General Assembly approved in 1969. Id., 541. The published commentary by the commission to revise the criminal statutes “indicates that the commission intended to create a new statutory scheme that recognized varying degrees of unlawful restrictions on a victim’s liberty by drawing a distinction between a ‘restraint,’ which, standing alone, comprises the crime of unlawful restraint, and an ‘abduction,’ which comprises the crime of kidnapping.” Id.

After examining the common law of kidnapping, the circumstances surrounding the enactment of the current kidnapping statutes and the policy objectives motivating them, our Supreme Court concluded that “[o]ur legislature, in replacing a single, broadly worded kidnapping provision with a graduated scheme that distinguishes kidnappings from unlawful restraints by the presence of an intent to prevent a victim’s liberation, intended to exclude from the scope of the more serious crime of kidnapping and its accompanying severe penalties those confinements or movements of a victim that are merely incidental to and necessary for the commission of another crime against that victim. Stated otherwise, to commit a kidnapping in conjunction with another crime, a defendant must intend to prevent the victim’s liberation for a longer period of time or to a greater degree than that which is necessary to commit the other crime.” Id., 542.

“[A] defendant may be convicted of both kidnapping and another substantive crime if, at any time prior to, during or after the commission of that other crime, the victim is moved or confined in a way that has independent criminal significance, that is, the victim was restrained to an extent exceeding that which was necessary to accomplish or complete the other crime. Whether the movement or confinement of the victim is merely incidental to and necessary for another crime will depend on the particular facts and circumstances of each case. Consequently, when the evidence reasonably supports a finding that the restraint was not merely incidental to the commission of some other, separate crime, the ultimate factual determination must be made by the jury. For purposes of making that determination, the jury should be instructed to consider the various relevant factors, including the nature and duration of the victim’s movement or confinement by the defendant, whether that movement or confinement occurred during the commission of the separate offense, whether the restraint was inherent in the nature of the separate offense, whether the restraint prevented the victim from summoning assistance, whether the restraint reduced the defendant’s risk of detection and whether the restraint created a significant danger or increased the victim’s risk of harm independent of that posed by the separate offense.” (Emphasis in original.) Id., 547-48.

We conclude that, on the basis of the evidence, the jury reasonably could have found beyond a reasonable doubt that the defendant restrained the victim for a period of time longer than was necessary to commit the crime of assault in the third degree. See id., 542. The defendant used his stun gun on the victim and threw her to the garage floor and bound her hands behind her back. His restraint of the victim, however, did not end at that time. The defendant by his own admission placed the victim in the Buick and drove circuitously to his residence located in a rural section of Ledyard. The defendant confined the victim in his house until they got back in the Buick and the defendant again drove circuitously throughout New London County. The jury reasonably could have found that the defendant restrained the victim’s movements to prevent her liberation, to prevent her from summoning assistance and to avoid or reduce the possibility of detection for approximately two hours. By binding the victim’s hands behind her back, placing her in the Buick and driving for twenty minutes to his home, the defendant also increased the risk of harm to her aside and apart from the crime of assault in the third degree by preventing her from summoning aid while he was armed with a pistol. Moreover, the defendant himself admitted to the Stonington police that he knew that what he had done to the victim was wrong. Obviously, he knew his conduct as to the victim was criminal. See State v. Winot, supra, 294 Conn. 770-71. He was not entitled to clear notice that his conduct violated a particular criminal statute. See id.

We also conclude that the defendant has failed to demonstrate that he was the victim of arbitrary and standardless enforcement of § 53a-94, that he lacked notice that his conduct was criminal as to kidnapping in the second degree and that the statute was unconstitutionally vague as applied to him.

II

The defendant’s second claim is that the trial court’s failure to temper the distinction between kidnapping and unlawful restraint when it charged the jury rendered an unjust result. The state claims that the defendant cannot prevail on this claim because he invited the error by objecting to the court’s intention to instruct the jury on the six Salamon factors; see State v. Salamon, supra, 287 Conn. 547-48; to determine whether his restraint of the victim was incidental to the crime of assault in the third degree. See id. We agree with the state that the claimed error, if any, was induced by the defendant; see State v. Kitchens, 299 Conn. 447, 468-69, 10 A.3d 942 (2011); and that he cannot prevail on appeal after his trial court strategy has failed him. See State v. Castillo, 121 Conn. App. 699, 716 n.17, 998 A.2d 177, cert. denied, 297 Conn. 929, 998 A.2d 1196, cert. denied, 562 U.S. 1094, 131 S. Ct. 803, 178 L. Ed. 2d 537 (2010).

“It is well settled that an instructional impropriety that is constitutional in nature is harmful beyond a reasonable doubt, and, thus a reversible impropriety, when it is shown that it is reasonably possible . . . that the jury [was] misled.” (Internal quotation marks omitted.) State v. Hampton, 293 Conn. 435, 462, 978 A.2d 1089 (2009).

The following facts are relevant to our review of the defendant’s second claim. The court provided defense counsel and the assistant state’s attorney with a copy of the charge it intended to use to instruct the jury. The court held both off-the-record and on-the-record reviews of its proposed charge. The following colloquy took place during the on-the-record review.

“[The Prosecutor]: . . . One of the things that we did discuss in chambers, and I did want to put on the record, was, in light of Salamon, there was not going to be a request that any restraint was incidental to a different crime. I recognize the state of the law with respect to Salamon and the other cases, but it’s my understanding that there is going to be no request by defense relative to that type of charge or . . . that language that’s contained therein. I just want to make sure that the record is . . . clear relative to that.

“The Court: And that is not included in the draft of the charge which has been provided, and that . . . the prosecutor’s statement is correct then, [defense counsel]?

“[Defense Counsel]: Yes.

“The Court: All right.”

The defendant objects to the following portion of the court’s charge, claiming that it confused the jury. “You may recall that one or more witnesses used certain terms in their testimony, such as the word kidnapping, which have legal definitions. I will give you those definitions in these instructions, and those definitions should control your deliberations. ... A person is guilty of kidnapping in the second degree when he abducts another person. For you to find the defendant guilty of this charge the state must prove beyond a reasonable doubt that the defendant abducted [the alleged victim]. Abduct means to restrain a person with the intent to prevent her liberation by using or threatening to use physical force or intimidation. . . . Restrain means to restrict a person’s movements intentionally and unlawfully in such a manner as to interfere substantially with her liberty by moving her from one place to another, or by confining her either in the place where the restriction commences, or in a place to which she has been moved without consent. There is no requirement that the movement be any specific distance, or that the confinement last any specific period of time. There need not be any movement at all. . . .

“For you to find the defendant guilty of [unlawful restraint] the state must prove the following elements beyond a reasonable doubt. One, that the defendant specifically intended to restrain [the alleged victim] and did so by moving her from one place to another, or by confining her in some place in such a manner as to interfere substantially with her liberty. . . . There is no requirement that the movement be any specific distance, or that the confinement last any specific period of time.”

“The term induced error, or invited error, has been defined as [a]n error that a party cannot complain of on appeal because the party, through conduct, encouraged or prompted the trial court to make the erroneous ruling. . . . This court has found induced error undeserving of appellate review in the context of a jury instruction claim when the defense has affirmatively requested the challenged jury instruction ... or has encouraged or prompted the court to refrain from giving an instruction that arguably should have been given.” (Citations omitted; internal quotation marks omitted.) State v. Kitchens, supra, 299 Conn. 468-69. “[T]o allow [a] defendant to seek reversal [after] ... his trial strategy has failed would amount to allowing him to induce potentially harmful error, and then ambush the state [and the trial court] with that claim on appeal.” (Internal quotation marks omitted.) State v. Gibson, 270 Conn. 55, 67, 850 A.2d 1040 (2004).

Our Supreme Court acknowledged in State v. Salamon, supra, 287 Conn. 534, that there is ambiguity between the definitions of abduct and restrain. Salo-mon, however, concluded that different intent requirements pertain to kidnapping in the second degree and unlawful restraint in the first degree. To assist a jury in its deliberations, Salomon identified six factors for the jury to consider when determining whether particular conduct constitutes the crime of kidnapping in the second degree. Id., 547-48. The record in this case reflects that the defendant specifically objected to the inclusion of the Salomon factors and the language as to whether the defendant intended “to prevent the victim’s liberation for a longer period of time or to a greater degree than that which is necessary to commit the other crime.” Id., 542. The inclusion of those instructions in the court’s jury charge would have resolved the ambiguity of which the defendant now complains. His strategy at trial having failed, he cannot reverse his conviction on appeal on the ground of an improper jury instruction.

Moreover, even if the court’s limited charge were incorrect, an issue we do not address, any error was harmless beyond a reasonable doubt. See State v. Hampton, supra, 293 Conn. 463 (test determining whether constitutional impropriety is harmless is whether it appears beyond reasonable doubt that impropriety complained of did not contribute to verdict obtained). In this case, there was overwhelming evidence by the defendant’s own testimony that he assaulted the victim in her garage with a stun gun, bound her hands, placed her in the Buick, drove the back roads of New London County and took her to his residence before resuming his circuitous drive. The defendant abducted the victim by restraining her with the intent to prevent her liberty by the use of physical force. See General Statutes § 53a-91 (2). A jury reasonably could have found beyond a reasonable doubt that the defendant intended to prevent the victim’s liberation for a longer time and to a greater degree than was necessary to commit assault in the third degree. See State v. Salamon, supra, 287 Conn. 542; see also part I of this opinion. For the foregoing reasons, the defendant’s jury instruction claim fails.

The judgment is affirmed.

In this opinion the other judges concurred.

       Soon after the underlying facts of this case occurred in 2002, the defendant was charged with two counts of burglary in the first degree in violation of General Statutes § 53a-101 (a) (1), kidnapping in the second degree in violation of § 53a-94 and assault in the third degree in violation of § 53a-61. In 2004, a jury found the defendant guilty of kidnapping in the second degree and assault in the third degree, and the court, Schimelman, J., sentenced him to twenty-one years in prison. Our Supreme Court, however, reversed the conviction pursuant to Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), and remanded the case for a new trial. See State v. Kirby, 280 Conn. 361, 908 A.2d 506 (2006).

       The victim, now deceased, was unavailable to testify at trial. State v. Kirby, 280 Conn. 361, 363-64, 908 A.2d 506 (2006).

       Buck invoked his fifth amendment privilege against self-incrimination and did not testify at the defendant’s trial.

       Barber was a retired first grade teacher who had known the victim for thirty-three years. The two women were friends and chatted nightly about their days’ activities. Although Barber and Buck are cousins, she did not have any interaction with him. Other than on the night in question, Buck had never telephoned Barber. Buck asked Barber if she and the victim had gone to a casino. According to Barber, although she and the victim had once visited the casino, the victim “wasn’t a casino person . . .

       After the victim left in the ambulance, Thornton stayed at the Buck residence to oversee the impounding of the Buick.

       The -victim was photographed by Cody Floyd, a Stonington police detective, at the police station on the evening of May 3, 2002. At trial, Floyd testified as follows with regard to a photograph he took: “This is the face of [the victim, and] . . . there was a small injury to her chin, and then areas of petechiae hemorrhages around her eyes and general area of her face.”

       Sherry Castodio, a Mend and teaching colleague, saw the victim at school the next day. The victim’s face was red and blotchy, her hands were swollen and the skin over her knuckles was taut.

       The key ring was readily identifiable to the police because the victim had informed them of distinctive trinkets on it.

       See Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       The defendant’s brother, Stratton Kirby, lived in California but was in Connecticut on May 2, 2002, on business. He had lunch with the defendant and spent the afternoon with him. He did not see the defendant in the evening.

       Thomas Cleveland testified that he had hired the defendant to repair an old bulldozer that he owned. The defendant testified that the objects in his green bag were intended to distract a dog on Cleveland’s property that was bothering him. Cleveland testified that the dog belonged to his son and was not kept on his property.

       During her telephone conversation with Gomes, the victim stated that she used a spare key she kept in her purse to start the Buick. Those facts were not before the jury.

       General Statutes § 53a-94 (a) provides: “A person is guilty of kidnapping in the second degree when he abducts another person.”
      General Statutes § 53a-91 (2) provides: “ ‘Abduct’ means to restrain a person with intent to prevent his liberation by either (A) secreting or holding him in a place where he is not likely to be found, or (B) using or threatening to use physical force or intimidation.”

       General Statutes § 53a-95 (a) provides: “A person is guilty of unlawful restraint in the first degree when he restrains another person under circumstances which expose such other person to a substantial risk of physical injury.”
      General Statutes § 53a-91 (1) provides in relevant part: “ ‘Restrain’ means to restrict a person’s movements intentionally and unlawfully in such a manner as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in the place where the restriction commences or in a place to which he has been moved without consent. . . .”

       In his brief, the defendant states: “The crux of this appeal is whether it is just to sentence a seventy-two year old man with no other criminal record, who ‘worked throughout his life’ ... to twenty-one years in prison, when the difference between a twenty-one year sentence and a six year sentence is whether he intended to prevent [the victim’s] liberation, or whether he intended to interfere substantially with her liberty.” (Citation omitted.) We note that the defendant does not challenge the sufficiency of the evidence.

       The defendant analyzed the majority, concurring and dissenting opinions, as the case may be, in State v. Sanseverino, 291 Conn. 574, 969 A.2d 710 (2009); State v. DeJesus, 288 Conn. 418, 953 A.2d 45 (2008); State v. Sanseverino, 287 Conn. 608, 949 A.2d 1156, overruled in part by State v. DeJesus, 288 Conn. 418, 437, 953 A.2d 45 (2008), and superseded in part after reconsideration by State v. Sanseverino, 291 Conn. 574, 969 A.2d 710 (2009); State v. Salamon, supra, 287 Conn. 509; and State v. Luurtsema, 262 Conn. 179, 811 A.2d 223 (2002), overruled in part by State v. Salamon, 287 Conn. 509, 513-14, 949 A.2d 1092 (2008).

       The exact amount of time is unknown, but the facts demonstrate that the victim arrived home after her sorority meeting concluded at approximately 8 p.m. and that Buck telephoned the Stonington police department at 11:07 p.m. to report that the victim had returned home.

       The defendant requested that the court charge the jury as follows: “Criminal statutes are governed by the fundamental principle that such statutes are strictly construed against the state. The purpose of the rule of strict construction is to enable the people of the [s]tate to know clearly and precisely what acts the legislature has forbidden under a penalty, that they may govern their conduct accordingly, and to make sure that no act which the legislature did not intend to include will be held by the courts within the penalty of the law. Ambiguities in criminal statutes are ordinarily to be resolved in favor of the defendant.” (Internal quotation marks omitted.)
      The defendant wanted the court to instruct the jury to consider kidnapping in the second degree and unlawful restraint in the first degree simultaneously, rather than sequentially, as the court instructed the jury. The court denied the defendant’s request to charge on the ground that it concerns principles of statutory construction, which are questions of law and are not within the province of the jury.

       Defense counsel had objected to the court’s proposed charge on kidnapping in the second degree and unlawful restraint in the first degree on the grounds that “there’s no difference between the two, and I think it’s vague, unconstitutionally vague, the difference between the two as applied in this case.”

       The court charged the jury with respect to kidnapping in the second degree as follows. “The first count of the information accuses the defendant ... of kidnapping in the second degree in violation of Connecticut General Statutes § 53a-94, and charges that at the towns of Stonington and Ledyard, on or about the second of May, 2002, the said [defendant] did abduct another person, to wit, [the alleged victim] in violation of § 53a-94 of the Connecticut General Statutes.
      “The statute defining this offense reads in pertinent part as follows: A person is guilty of kidnapping in the second degree when he abducts another person. For you to find the defendant guilty of this charge the state must prove beyond a reasonable doubt that the defendant abducted [the alleged victim]. Abduct means to restrain a person with the intent to prevent her liberation by using or threatening to use physical force or intimidation. The defendant does not need to actually use force, he need only threaten to use force in such a manner that [the alleged victim] reasonably believed that force would be used if she tried to escape.
      “Restrain means to restrict a person’s movements intentionally and unlawfully in such a manner as to interfere substantially with her liberty by moving her from one place to another, or by confining her either in the place where the restriction commences, or in a place to which she has been moved without consent. There is no requirement that the movement be of any specific distance, or that the confinement last any specific period of time. There need not be any movement at all. The person could be confined by preventing her from leaving a place where she was.
      “Any apparent consent on the part of [the alleged victim] to the movement or confinement must have been actual and not simply acquiescence brought about by force, fear, shock, or deception. The act of consent must have been truly voluntary. Consent may be expressed, or you may find that it is implied from the circumstances that you find existed. Whether there was consent is a question of fact for you to determine. The defendant has no burden to prove consent. The state must prove the lack of consent.
      “In abducting [the alleged victim], the defendant must have specifically intended to prevent her liberation. Intent relates to the condition of mind of the person who commits the action, his purpose in doing it. As defined by our statute, a person acts intentionally with respect to a result when his conscious objective is to cause such result.
      “What a person’s intention was is usually a matter to be determined by inference. No person is able to testify that he or she looked into another’s mind and saw therein a certain knowledge or a certain purpose or intention to do harm to another. Because direct evidence of the defendant’s state of mind is rarely available, intent is generally proved by circumstantial evidence. The only way ajury can ordinarily determine what aperson’s intention was at any given time is by determining what the person’s conduct was, and what the circumstances were surrounding that conduct, and from that infer what his intention was.
      “To draw such an inference is the proper function of ajury, provided, of course, that the inference drawn complies with the standards for inferences as explained in connection with my instruction on circumstantial evidence. The inference is not necessary. You are not required to infer a particular intent from the defendant’s conduct or statements, but it is an inference that you may draw if you find it reasonable and logical. I again remind you that the burden of proving intent beyond a reasonable doubt is on the state.
      “Unlawfully means without legal right or justification. Thus, either the alleged victim must have been moved from one place to another, or the alleged victim must have been confined to the place where the restriction first began, or in the place to which she has been moved without her consent. There is no special requirement that the restraint be for any particular length of time, or, again, that the alleged victim be moved over any particular distance.
      “The law which makes kidnapping criminal punishes interference with personal liberty in restricting the victim’s freedom of movement, so you cannot find kidnapping unless you first find and establish that there was such restriction of movement, and that it has been done intentionally, that it has been done without right or authority of law, and that it has had the effect of interfering substantially with the victim’s liberty.
      “Abduction may be established by sufficient proof that the alleged victim has been unlawfully restrained, and that with intent to prevent her liberation the defendant restrained her by using or threatening to use physical force or intimidation. Abduction need not be proven by establishing the use of force or intimidation if the proof establishes that the defendant threatened its use in such manner that the alleged victim reasonably believed that force would be applied to her if she sought to escape, or to thwart the abductor’s intention.
      “Physical force means the external physical power over the person which can be effected by hand or foot or another part of the defendant’s body applied to the other person’s body, or applied by an implement, projectile or weapon. Physical force may take many forms. It is for you to decide whether the evidence proves that physical force was used by the defendant, and whether it actually produced and resulted in the accomplishment of the restraint which is charged. The use of physical force need not be proved if the evidence proves that the restraint was accomplished by intimidating. This requires that the defendant’s words or acts placed the victim in a state of fear. Such intimidating may be found in a threat to inflict the injury made by one with the apparent power to carry out those threats. To constitute intimidating and thus remove the need to prove actual lack of consent, the proof must convince you that the words or acts of the defendant under the circumstances appearing at the time and place in question enabled the defendant to carry out and effect the restraint or removal by placing the alleged victim in terror.
      “In summary, the state must prove beyond a reasonable doubt that the defendant abducted [the alleged victim]. If you unanimously find that the state has proved beyond a reasonable doubt each of the elements of the crime of kidnapping in the second degree, then you shall find the defendant guilty. On the other hand, if you unanimously find that the state failed to prove beyond a reasonable doubt any of the elements of kidnapping in the second degree, you shall . . . then find the defendant not guilty.”

       At the conclusion of its charge, the court asked counsel whether they had “any additional exceptions or objections to the charge as delivered.” Defense counsel stated, “No, Your Honor.”


source: Caselaw Access Project

author: BEAR, J.

license: Public Domain

text:
    WILLIAM COLEMAN v. COMMISSIONER OF CORRECTION
    (AC 33621)
    DiPentima, C. J., and Bear and West, Js.

      Argued April 17 —
    officially released July 24, 2012

      William Coleman, pro se, the appellant (petitioner).

      Steven R. Strom, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellee (respondent).
   Opinion

BEAR, J.

The self-represented petitioner, William Coleman, appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly (1) dismissed his petition without a hearing and (2) failed to appoint counsel on his behalf. We affirm the judgment of the habeas court.

The following procedural history is relevant to our disposition of the petitioner’s appeal. The petitioner was convicted, after a jury trial, of sexual assault in a spousal relationship in violation of General Statutes § 53a-70b (b), unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a), breach of the peace in the second degree in violation of General Statutes § 53a-181, threatening in the second degree in violation of General Statutes § 53a-62 (a) (1) and larceny in the sixth degree in violation of General Statutes § 53a-125b (a). He was sentenced to a total effective term of fifteen years incarceration, execution suspended after eight years, with a maximum discharge date of December 30, 2012. He appealed from the judgment of conviction, and, on September 4, 2007, this court affirmed the judgment. See State v. William C., 103 Conn. App. 508, 510, 930 A.2d 753, cert. denied, 284 Conn. 928, 934 A.2d 244 (2007). On September 17,2007, the petitioner began a hunger strike, protesting against perceived injustices in the state’s judicial system.

The petitioner’s health deteriorated rapidly as a result of his refusal to ingest solid foods. Concerned with the petitioner’s safety and the safety of the greater prison population, the commissioner of correction filed an application for a temporary injunction to allow force-feeding of the petitioner both intravenously and via a nasogastric tube. On January 23, 2008, the temporary injunction was granted. Thereafter, a trial to the court was held on the merits of a permanent injunction to allow force-feeding of the petitioner. The petitioner filed a series of special defenses in the permanent injunction action, including a claim that his force-feeding constitutes cruel and unusual punishment in violation of the eighth amendment to the United States constitution. On March 9, 2010, a permanent injunction was granted. The petitioner appealed, and the trial court’s decision was affirmed by our Supreme Court. See Commissioner of Correction v. Coleman, 303 Conn. 800, 844, 38 A.3d 84 (2012).

On December 30,2010, the petitioner filed the present petition for a writ of habeas corpus, a request for appointment of counsel and an application for waiver of fees. His petition alleges that certain conditions of his confinement axe “abusive” and constitute “torture.” On March 1, 2011, the habeas court, sua sponte, summarily dismissed the petition pursuant to Practice Book § 23-29 (2). Thereafter, the court granted the petitioner certification to appeal. The petitioner also filed an application for waiver of fees, costs and expenses and for appointment of counsel on appeal. The court initially appointed counsel for the petitioner, but subsequently vacated that order. This appeal followed. Additional facts will be set forth as necessary.

I

The petitioner first claims that the court erred when it dismissed his petition for a writ of habeas corpus without conducting a hearing. Specifically, he argues that such dismissal was an abuse of discretion and contends that his petition “clearly outlined and state[d] his claim,” including a “constitutional claim which should have been heard by the trial court on the merits. ” The petitioner argues that dismissal of his petition prej-udicially impacts him because he “continues to be at risk from both the potential for similar conduct by the [department of correction] and actual cruel and unusual punishment at certain times.” (Internal quotation marks omitted.)

“The conclusions reached by the trial court in its decision to dismiss [a] habeas petition are matters of law, subject to plenary review. . . . [When] the legal conclusions of the court are challenged, [the reviewing court] must determine whether they are legally and logically correct . . . and whether they find support in the facts that appear in the record.” (Internal quotation marks omitted.) Stephen S. v. Commissioner of Correction, 134 Conn. App. 801, 808, 40 A.3d 796, cert. denied, 304 Conn. 932, 43 A.3d 660 (2012).

The petitioner’s petition for a writ of habeas corpus was dismissed summarily by the habeas court pursuant to Practice Book § 23-29, which provides: “The judicial authority may, at any time, upon its own motion or upon motion of the respondent, dismiss the petition, or any count thereof, if it determines that ... (2) the petition, or a count thereof, fails to state a claim upon which habeas corpus relief can be granted . ...” In reviewing whether a petition states a claim for habeas relief, we accept its allegations as true. See Abed v. Commissioner of Correction, 43 Conn. App. 176, 180, 682 A.2d 558, cert. denied, 239 Conn. 937, 684 A.2d 707 (1996).

The petition recites the following allegations: “1. I am isolated in a suicide cell 2.1 am not suicidal 3. Lights on 16-24 hours per day 4. Denial of hygiene 5. Force fed 6. Restrained (though compliant) 7. Denied access to legal work 8. Restricted legal contacts 9. Maximum punitive restrictions.” Additionally, the petition alleges that the medical and mental health treatment programs provided are “abusive,” “torture” and “self-serving.” The petition also recites a series of legal conclusions, stating: “1. Violates World Human Rights and Civil Liberty Laws 2. Violates the laws of the World Criminal Courts 3. Violates the WMA and AMA Codes of Conduct (outlawed) 4. Violates US Constitution 5. Violates CT Constitution.” The petitioner seeks through his petition “to be free of further abuse and torture.”

“The Constitution does not mandate comfortable prisons . . . but neither does it permit inhumane ones, and it is now settled that the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment ....

“A prisoner seeking habeas relief on the basis of his conditions of confinement, which includes the medical care made available to him, bears the burden of establishing both aspects of his claim. First, the alleged deprivation of adequate conditions must be objectively, sufficiently serious . . . such that the petitioner was denied the minimal civilized measure of life’s necessities .... Second, the official involved must have had a sufficiently culpable state of mind described as deliberate indifference to inmate health or safety.” (Citations omitted; internal quotation marks omitted.) Faraday v. Commissioner of Correction, 95 Conn. App. 1, 6-8, 894 A.2d 1048 (2006), rev’d on other grounds, 288 Conn. 326, 952 A.2d 764 (2008).

“The petition for a writ of habeas coipus is essentially a pleading and, as such, it should conform generally to a complaint in a civil action.” (Internal quotation marks omitted.) Fernandez v. Commissioner of Correction, 86 Conn. App. 42, 49, 859 A.2d 948 (2004). Accordingly, in reviewing whether a pleading states a cause of action, although we accept all well pleaded facts as true, we need not “admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.” (Internal quotation marks omitted.) Doe v. Yale University, 252 Conn. 641, 694, 748 A.2d 834 (2000).

Here, however, rather than allege material facts in the context of one or more causes of action, the petition contains only conclusory statements and opinions, such as “[d]enial of hygiene,” “[restrained (though compliant),” “abuse,” and “torture.” “To obtain relief through a habeas petition, the petitioner must plead facts that, if proven, establish that the petitioner is entitled to relief.” (Emphasis added.) Kaddah v. Commissioner of Correction, 299 Conn. 129, 136-37, 7 A.3d 911 (2010). Practice Book § 10-1, entitled “Fact Pleading,” makes this pleading requirement clear: “Each pleading shall contain a plain and concise statement of the material facts on which the pleader relies, but not of the evidence by which they axe to be proved, such statement to be divided into paragraphs numbered consecutively, each containing as nearly as may be a separate allegation.

. . .” “Further, if the plaintiff allege[s] separate and distinct causes of action, [he] should . . . [assert] them in separate counts pursuant to Practice Book § 10-26. The burden is on a plaintiff to plead his case clearly and not to expect the court or his opposing counsel to have to wade through a poorly drafted complaint to glean from it the plaintiff’s theories of relief.” Fort Trumbull Conservancy, LLC v. Alves, 286 Conn. 264, 277 n.13, 943 A.2d 420 (2008). Even under our permissive reading of the petition, we cannot conclude, absent speculation, that the petitioner has plausibly alleged in one or more counts his entitlement to habeas relief.

Our case law has recognized “only one situation in which a court is not legally required to hear a habeas petition [before dismissing the petition].” (Internal quotation marks omitted.) Mitchell v. Commissioner of Correction, 93 Conn. App. 719, 725, 891 A.2d 25, cert. denied, 278 Conn. 902, 896 A.2d 104 (2006). Specifically, “[i]f aprevious application brought on the same grounds was denied, the pending application may be dismissed without hearing, unless it states new facts or proffers new evidence not reasonably available at the previous hearing.” (Internal quotation marks omitted.) Id., 726. Although “[b]oth statute and case law evince a strong presumption that a petitioner for a writ of habeas corpus is entitled to present evidence in support of his claims”; Mercer v. Commissioner of Correction, 230 Conn. 88, 93, 644 A.2d 340 (1994); practical considerations suggest that a habeas court is not “legally required” to hear a habeas petition that itself is legally infirm. Simply stated, the petition in the present matter fails to state a cause of action; thus, functionally the petition is devoid of any legally cognizable claim that would entitle the petitioner to a hearing. See Practice Book § 23-29 (2). Accordingly, it was not improper for the court to summarily dismiss the present petition without a hearing.

II

The petitioner next claims that the court erred when it failed to appoint counsel on his behalf, both before the habeas court and on appeal. Specifically, the petitioner contends that a habeas petition “in a medical ‘[conditions of [c]onfinement’ case can be very complex . . . .” Thus, the petitioner argues that the habeas court abused its discretion when it failed to appoint counsel “because it did not consider the complexity of [the] petition as is evidenced by the lack of a hearing.” The petitioner contends that he “is not an attorney and cannot defend himself against the representation of the state, [which has] unlimited resources and experience. Therefore, the prejudice against him is insurmountable if he is not appointed counsel, putting him at an unfair disadvantage.” (Citation omitted.) We disagree.

“The principal purpose of the writ of habeas corpus is to serve as a bulwark against convictions that violate fundamental fairness. . . . The writ has been described as a unique and extraordinary legal remedy.” (Citations omitted; internal quotation marks omitted.) Joyce v. Commissioner of Correction, 129 Conn. App. 37, 39, 19 A.3d 204 (2011). “[A]lthoughthereisno constitutional right to counsel in habeas proceedings, General Statutes § 51-296 . . . creates a statutory right to counsel .. . for an indigent defendant ... in any habeas corpus proceeding arising from a criminal matter . . . .” (Emphasis in original; internal quotation marks omitted.) Morgan v. Commissioner of Correction, 87 Conn. App. 126, 132, 866 A.2d 649 (2005); see also Practice Book § 44-1. Nonetheless, it is clear that “not every habeas proceeding arises from a criminal matter. The writ of habeas corpus . . . does not focus solely upon a direct attack on the underlying judgment or upon release from confinement. See, e.g., Gaines v. Manson, 194 Conn. 510, 481 A.2d 1084 (1984) (undue appellate delay); Arey v. Warden, 187 Conn. 324, 445 A.2d 916 (1982) (conditions of confinement); Roque v. Warden, 181 Conn. 85, 434 A.2d 348 (1980) (first amendment issues); Negron v. Warden, 180 Conn. 153, 429 A.2d 841 (1980) (state’s extradition practice); Doe v. Doe, 163 Conn. 340, 307 A.2d 166 (1972) (custody and visitation disputes).” (Internal quotation marks omitted.) Sinchak v. Commissioner of Correction, 126 Conn. App. 684, 688, 14 A.3d 343 (2011).

The petitioner himself notes that his present petition challenges his conditions of confinement. Although he acknowledges that he filed a direct appeal and a prior habeas petition, his petition specifically alleges that those prior actions are unrelated to the present petition. The present petition does not challenge the underlying judgment of conviction and does not focus upon release from confinement. Accordingly, we determine that the allegations of the present petition, although raised by an individual incarcerated subject to a criminal conviction, do not arise from a criminal matter. Therefore, we conclude that the petitioner was not entitled to counsel under the terms of § 51-296.

The petitioner, however, contends that the court abused its discretion in failing to appoint counsel pursuant to Practice Book § 44-2. Section 44-2 provides: “In any other situation in which a defendant is unable to obtain counsel by reason of indigency, and is constitutionally or statutorily entitled to the assistance of counsel, such defendant may request the judicial authority to appoint a public defender in accordance with Section 44-1.” Having determined that, under the circumstances of this case, the petitioner was not constitutionally or statutorily entitled to counsel, we further determine that the court did not err in denying the petitioner’s request for appointment of counsel. Moreover, we are not persuaded by the petitioner’s argument that the court failed to consider the complexity of his petition prior to dismissal. As noted previously, the petition was devoid of any legally cognizable claim — let alone a claim so complex that the court’s denial of appointment of counsel would somehow constitute an abuse of discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although these allegations are recited in paragraph 7b of the standard form habeas petition, as opposed to paragraph 7f, which provides for factual allegations, we recognize that our construction of a self-represented party’s pleading should not focus on technical defects, but should afford the petitioner a broad, realistic construction of the pleading under review. See Mourning v. Commissioner of Correction, 120 Conn. App. 612, 624-26, 992 A.2d 1169, cert. denied, 297 Conn. 919, 996 A.2d 1192 (2010).

       This conclusion comports with the modem view in federal prisoners’ rights litigation. Compare Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (“[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do’ ”) with Haines v. Kerner, 404 U.S. 519, 520-21, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972).

       Additionally, we note the discretion our rules of practice afford the habeas courts to decline issuance of the writ for a petition that is frivolous on its face; Practice Book § 23-24; and to dismiss petitions “at any time, upon [the habeas court’s] own motion . . . .” Practice Book § 23-29.


author: ALVORD, J.

text:
    FORREST E. CRISMAN, JR. v. ZONING BOARD OF APPEALS OF THE TOWN OF MORRIS
    (AC 33393)
    (AC 33394)
    Lavine, Robinson and Alvord, Js.

      Argued April 24 —
    officially released July 24, 2012

      Franklin G. Pilicy, for the appellant in AC 33393 (intervening defendant).

      Peter C. Herbst, with whom was James P. Steck, for the appellee-cross appellant in AC 33393 and the appellee in AC 33394 (plaintiff).

      Steven E. Byrne, for the appellant in AC 33394 (named defendant).
   Opinion

ALVORD, J.

The defendant zoning board of appeals of the town of Morris (board) and the intervening defendant, David M. Geremia, filed separate appeals from the judgment of the trial court sustaining the administrative appeal of the plaintiff, Forrest E. Crisman, Jr., from the board’s decision upholding a cease and desist order issued by the town’s zoning enforcement officer. On appeal, Geremia claims that the court improperly concluded that the plaintiff proved his municipal estoppel claim. Similarly, the board claims that the court improperly determined that the doctrine of municipal estoppel was applicable under the circumstances of this case and additionally claims that the court improperly concluded that the plaintiff could complete construction of the structure that was the subject of the cease and desist order. We affirm the judgment of the trial court.

The record reveals the following facts and procedural history. The plaintiff owns property on the east shore of Bantam Lake in Morris located in the lake residential district. The primary dwelling on the property is less than 800 square feet in size. Prior to December, 2007, a one car garage erected circa 1900 also was located on the plaintiffs property. The garage was partially situated within an area that became the right-of-way for a town road. At that point in time, the garage became a preexisting, legal nonconforming structure. In December, 2007, a tree fell on the garage and caused substantial damage.

Later in December, 2007, shortly after the tree damaged the garage, the plaintiff met with the town’s zoning enforcement officer, Leon Bouteiller. The plaintiff wanted to obtain the requisite permits and approvals for the replacement and enlargement of the garage. The plaintiff met with Bouteiller repeatedly to discuss the project. Bouteiller, after eliciting information from the plaintiff, filled out the application for the zoning permit to allow construction of the new structure. The plaintiff and Bouteiller signed the application. Bouteiller issued the zoning permit on April 23, 2008, which approved the construction requested by the plaintiff. The plaintiff provided the town’s building inspector with architectural plans of the proposed structure in May, 2008, and began construction.

On July 15, 2008, Bouteiller, at the direction of the town’s planning and zoning commission (commission), issued a cease and desist order to the plaintiff advising him that a two foot kneewall was being built that had not been shown on the approved site plan. On July 24, 2008, Bouteiller released the first cease and desist order and replaced it, again at the direction of the commission, with a second cease and desist order dated July 24, 2008. The second cease and desist order, which is the operative order for purposes of this appeal, ordered the plaintiff to stop construction for the following reason: “The April 23,2008 Zoning Permit authorizes a 1450 square foot ground level single story garage addition. No Zoning Permit has been issued for any construction beyond 1450 square feet. All construction beyond the 1450 square feet and any other use other than a garage is in violation of the April 23, 2008 Zoning Permit.” The plaintiff already had expended approximately $100,000 on the project by the time the cease and desist orders were issued.

On August 22,2008, the plaintiff appealed to the board from the July 24, 2008 cease and desist order. See General Statutes § 8-7. The plaintiff and Bouteiller addressed the board at its hearing held on the plaintiffs appeal. On November 25, 2008, the board voted to uphold the cease and desist order. The deliberation portion of that meeting was not recorded, however, and the minutes gave a cursory summary of the reasons for the board’s decision. Notice of that decision was published on November 27, 2008, and the plaintiff filed a timely appeal with the Superior Court. See General Statutes § 8-8 (b). At the board’s January 6, 2009 meeting, which was held after the filing of the plaintiffs appeal to the Superior Court, the board “corrected” the minutes of the November 25, 2008 meeting and identified the bases for the members’ votes. From the members’ comments in the “corrected” minutes, the consensus was that the cease and desist order had been properly issued because the plaintiffs proposed structure was not subordinate to the primary dwelling on the property and, therefore, was not a permissible accessory building.

This administrative appeal had been pending before the Superior Court for more than six months when Geremia, an abutting landowner, filed a motion to intervene as a party defendant. The court granted his motion, and the parties filed prehearing briefs setting forth their respective positions. On August 24, 2010, the court held a hearing. The plaintiff presented evidence as to his aggrievement, and, in furtherance of his equitable municipal estoppel claim, he presented evidence as to the expenses he had incurred in connection with the construction of his unfinished structure. During the course of the hearing, the parties agreed that it would be appropriate for the court to conduct a site visit. The court granted their request, stating that it would notify the parties after the visit was completed and that it would permit the filing of supplemental briefs. The court further indicated that it would schedule a second hearing date if it had questions or if it required additional oral argument.

On January 11, 2011, the court issued its memorandum of decision. After finding that the plaintiff was statutorily aggrieved by the board’s decision, the court summarized the parties’ positions and addressed each claim. The court first determined that the board’s decision to uphold the cease and desist order was based on grounds other than those specified in that order. Although the issue of whether the proposed structure should be characterized as an accessory building or the primary building was not raised in the cease and desist order, the matter had been discussed at the hearing before the board. The court noted that the plaintiff had not claimed unfair surprise or inadequate opportunity to respond to that issue when he appeared before the board. Accordingly, the court concluded that “the plaintiff was not prejudiced by the fact that the board’s decision to uphold the cease and desist order was not strictly based on the points set forth in the [cease and desist] order.” The court further found that there was sufficient evidence in the record to support the board’s conclusion that the proposed building was not a permissible accessory building.

The court then addressed the plaintiffs municipal estoppel claim. After citing relevant case law, the court found that the plaintiff had satisfied all of the requirements necessary to invoke that doctrine. The court began its analysis by stating that the parties agreed that Bouteiller was the authorized agent of the municipality. The court then made the following factual findings. Bouteiller met with the plaintiff several times and was made aware of the projected size and uses to be made of the building, even though he did not see the architectural plans at the time he issued the zoning permit. Bouteiller did not see the architectural plans before issuing the zoning permit because they were prepared later for purposes of obtaining the building permit. Moreover, as explained by Bouteiller, the zoning regulations did not require that architectural plans be submitted for the issuance of a zoning permit for an accessory building. Furthermore, Bouteiller stated that even if the architectural plans had been made available to him, he would have concluded that the project was in full compliance with the zoning permit.

The court then made the following determinations: “Based on his many discussions with [Bouteiller], and after the zoning permit was issued, the plaintiff began construction on his proposed building. He obtained architectural drawings, incurred engineering expenses, took the steps necessary to install a new septic system, ordered building materials, and in summary expended more than $100,000 on the project prior to the issuance of the cease and desist orders. . . . For all of the foregoing reasons, the court finds that the board should be and is estopped from enforcing the cease and desist order.” The defendants and the plaintiff filed the present appeals after this court granted their petitions for certification.

The dispositive issue in these appeals is whether the trial court correctly determined that the plaintiff proved his municipal estoppel claim, thereby precluding the enforcement of the cease and desist order that prohibited the construction of the plaintiffs proposed structure. The board argues that the court’s factual findings were clearly erroneous because the plaintiff induced Bouteiller to act on a misleading and incomplete application, and he failed to prove that he would suffer substantial harm if the cease and desist order was enforced. The board further claims that the court applied an inappropriate remedy and should have remanded the matter back to the board “for a more definitive statement ... as to how much of the presently constructed garage addition could remain.” Gere-mia, the abutting landowner, argues that the court’s findings are clearly erroneous because there is compelling evidence in the record disputing what representations were made to the plaintiff by Bouteiller. He further claims that Bouteiller’s statements at the zoning board hearing were not credible and that the plaintiff did not exercise due diligence in proceeding with the project. Finally, he argues that the plaintiff failed to demonstrate a substantial loss.

We first set forth the appropriate principles guiding our review. Our Supreme Court has acknowledged that there are situations where the doctrine of estoppel may be applicable to municipalities in the enforcement of zoning laws. See Bloom v. Zoning Board of Appeals, 233 Conn. 198, 204, 658 A.2d 669 (1995); Dupuis v. Submarine Base Credit Union, Inc., 170 Conn. 344, 354, 365 A.2d 1093 (1976). “There are two essential elements to an estoppel — the party must do or say something that is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief; and the other party, influenced thereby, must actually change his position or do some act to his injury which he otherwise would not have done. . . . [I]n order for a court to invoke municipal estoppel, the aggrieved party must establish that: (1) an authorized agent of the municipality had done or said something calculated or intended to induce the party to believe that certain facts existed and to act on that belief; (2) the party had exercised due diligence to ascertain the truth and not only lacked knowledge of the true state of things, but also had no convenient means of acquiring that knowledge; (3) the party had changed its position in reliance on those facts; and (4) the party would be subjected to a substantial loss if the municipality were permitted to negate the acts of its agents.” (Citation omitted; emphasis added; internal quotation marks omitted.) O’Connor v. Waterbury, 286 Conn. 732, 757-58, 945 A.2d 936 (2008).

“[B]ecause municipal estoppel should be invoked only with great caution, our case law clearly imposes a substantial burden of proof on the party who seeks to do so.” Cortese v. Planning & Zoning Board of Appeals, 274 Conn. 411, 418-19, 876 A.2d 540 (2005). The question of whether a plaintiff has met his burden to establish the elements of estoppel is a question of fact. See Russo v. Waterbury, 304 Conn. 710, 737, 41 A.3d 1033 (2012). “[A] claim of municipal estoppel is . . . inherently fact bound. . . . The party claiming estoppel . . . has the burden of proof. . . . Whether that burden has been met is a question of fact that will not be overturned unless it is clearly erroneous. . . . A court’s determination is clearly erroneous only in cases in which the record contains no evidence to support it, or in cases in which there is evidence, but the reviewing court is left with the definite and firm conviction that a mistake has been made.” (Citation omitted; internal quotation marks omitted.) Conservation Commission v. Red 11, LLC, 119 Conn. App. 377, 387, 987 A.2d 398, cert. denied, 295 Conn. 924, 991 A.2d 566 (2010).

In the present case, with respect to the first factor required to establish municipal estoppel, the court found that Bouteiller, as the town’s zoning enforcement officer, was the authorized agent of the municipality who was responsible for issuing zoning permits. Neither the board nor Geremia disputed that fact. The court further found that Bouteiller was aware that the plaintiff intended that the proposed structure would be more than one level and that it would have a roof and a deck. Bouteiller also knew that the total square footage of the building would be more than the amount entered on the permit. The court further found that Bouteiller knew the uses that were planned for that building, which included a storage space, bathroom and a personal office or study. Although Bouteiller did not have the architectural plans when he issued the zoning permit, the court credited Bouteiller’s clear statement that the project was in full compliance with the zoning regulations after he had the opportunity to review those plans at a later date. Significantly, Bouteiller unequivocally stated that he had not agreed with the commission’s reasoning underlying the issuance of either of the two cease and desist orders served on the plaintiff. For those reasons, the court found: “[T]he [zoning enforcement officer], an agent of the town, took many actions and made many statements calculated to induce the plaintiff to believe that he was proceeding in compliance with the zoning regulations and to act on that belief.”

The board and Geremia do not dispute that there is support in the record for the court’s factual findings. Instead, they claim that there is conflicting evidence and that Bouteiller’s statements were not credible. They maintain that Bouteiller was misled by the plaintiffs claim that he did not intend to use the proposed structure as the primary structure on his property. According to the defendants, the plaintiffs representation is belied by the fact that the size and layout of the building would lend itself to uses in violation of the zoning regulations. The court acknowledged these arguments, but it concluded that there was nothing in the record that indicated that the plaintiff had not been truthful with Bouteiller or the board. The plaintiff consistently had maintained that all of his proposed uses of the building were permissible uses under the town’s zoning regulations. Moreover, as noted by the court, if the plaintiff did proceed to use the structure in a way that was not permitted by the regulations, the town would have appropriate remedies available to it. See General Statutes § 8-12.

On the basis of this record, we cannot conclude that it was clearly erroneous for the court to find that the plaintiff met his burden of proof in establishing that Bouteiller, as an authorized agent of the town, made statements and took actions calculated to induce the plaintiff to believe that he was proceeding in compliance with the zoning regulations and to induce him to act on that belief. We will not second-guess the considered judgment of the trial court. It is axiomatic that “[t]he trial court is free to accept or reject, in whole or in part, the evidence presented by any witness, having the opportunity to observe the witnesses and gauge their credibility. . . . This court defers to the trial court’s discretion in matters of determining credibility and the weight to be given to a witness’ testimony. . . . We cannot retry the matter, nor can we pass on the credibility of a witness.” (Internal quotation marks omitted.) Rozsa v. Rozsa, 117 Conn. App. 1, 10, 977 A.2d 722 (2009).

With respect to the second factor required to establish municipal estoppel, the defendants challenge the court’s determination that the plaintiff proved that he had exercised due diligence to ascertain the truth, that he did not know that his proposed structure was not a permissible accessory building and that he had no convenient means of acquiring that knowledge. Specifically, Geremia argues that the plaintiff did not exercise due diligence because he failed to disclose the total proposed floor area, he failed to contact Bouteiller for a site inspection when the foundation was completed, he failed to present the architectural plans to Bouteiller, and he failed to ask Bouteiller or any other municipal official whether his plans conflicted with the town’s regulations on accessory structures. The board argues that the “plaintiff did not exercise due diligence to ascertain the truth but instead, actively misinformed various municipal officials in order to obtain the permits he needed to accomplish his grand scheme of constructing a resplendent residence on Bantam Lake instead of the modest garage addition [that] the zoning permit would allow.”

The court’s determination that the plaintiff exercised due diligence is based on its findings, which are amply supported by the record, that: Bouteiller believed that the building and its intended uses were permissible under the regulations; Bouteiller worked closely with the plaintiff in applying for and issuing the zoning permit; and the court’s site visit revealed that the size of the proposed structure in itself was not a clear indication that it would not be considered an accessory building. Furthermore, the record reveals that Bouteiller’s position at the time the zoning permit was issued, at the time the commission directed him to issue the cease and desist orders and at the time of the hearing before the board has been consistent. He stated that he knew of the plaintiffs intended plans and concluded that the proposed size and uses of the structure complied with the regulations. He also stated that even if he had seen the architectural plans before issuing the zoning permit, his conclusion as to compliance would remain the same. Accordingly, we conclude that the court’s finding that “[t]here is no way that the plaintiff could have reasonably done any more than he did to learn what would be permissible uses for, and in, his proposed accessory building” was not clearly erroneous.

The defendants’ next claim, directed to the fourth factor required for establishing municipal estoppel, is that the court improperly found that the plaintiff would suffer a substantial loss if the municipality were able to negate the acts of Bouteiller, its agent, in issuing the zoning permit. The board and Geremia argue that the plaintiffs expenditures will not be forfeited entirely if the cease and desist order is upheld. They claim that the costs for engineering, architectural plans, the septic system and building materials would be necessary if the plaintiff proceeds with the construction of a permissible one-story garage.

In its memorandum of decision, the court found that the plaintiff expended more than $100,000 on the project prior to the issuance of the cease and desist orders. The court made the following determination: “The plaintiff changed his position in reliance on the issuance of the zoning permit and the assurances of the zoning enforcement officer. The court finds that he did so in good faith. If the municipality were to be able to negate the acts of its agent, under all of the circumstances of this case, the plaintiff would be subjected, wrongfully, to a very significant loss. Under these circumstances, for the town to enforce its zoning regulations, as it has chosen to interpret them in this case, would be highly inequitable and oppressive.”

The court, in reaching its finding, considered the evidence at the board hearing, at which the plaintiff and Bouteiller spoke, and the plaintiffs testimony at the court hearing on August 24, 2010. Additionally, the plaintiff submitted seventy-six exhibits at the court hearing, including delivery slips, a summary of costs, a summary of payments, copies of checks and copies of bank statements, all of which related to the construction project. The plaintiff testified that his expenditures totaled $139,089.18, but that he did not have all of the receipts to substantiate that figure. He also testified that a portion of some of the expenses could be allocated to the cottage on his property, such as the septic system and the well because they were designed to service both the garage and the cottage.

The following legal principles are relevant to the defendants’ claim. “[I]n examining municipal estoppel claims, this court has often turned to the definition and discussion of the concept of substantial loss developed by courts in Illinois. ... In reviewing the Illinois case law concerning substantial loss, it is evident that the primary consideration in determining whether a party will suffer a substantial loss is whether a party has made significant expenditures in reliance upon the representation of a municipal official. See, e.g., Drury Displays, Inc. v. Brown, 306 Ill. App. 3d 1160, 1165-67, 715 N.E.2d 1230 (concluding that trial court did not abuse its discretion in granting writ of mandamus to compel city to reinstate permit where plaintiff expended $49,897.20 in reliance on issuance of permits), appeal denied, 186 Ill. 2d 567, 723 N.E.2d 1162 (1999); Hagee v. Evanston, 91 Ill. App. 3d 729, 734, 414 N.E.2d 1184 (1980) (finding municipal estoppel where, inter alia, ‘large sums of money were expended in reliance upon the permit and apparent acquiescence by city officials’); Peru v. Querciagrossa, 73 Ill. App. 3d 1040, 1042, 392 N.E.2d 778 (1979) (concluding municipal estoppel established where plaintiff made ‘substantial expenditures’ in reliance on instructions provided by city zoning inspector); Emerald Home Builders, Inc. v. Kolton, 11 Ill. App. 3d 888, 893, 298 N.E.2d 275 (1973) (affirming trial court’s determination that municipal estoppel established because plaintiff had spent $15,560.97 in reliance on issuance of building permit).” (Citation omitted.) Levine v. Sterling, 300 Conn. 521, 539-40, 16 A.3d 664 (2011).

Here, the court, taking into account some shared expenses for the garage and cottage and the fact that the plaintiff did not have receipts for all of his claimed expenditures, nevertheless found that he “expended more than $100,000 on the project prior to the issuance of the cease and desist orders.” We cannot conclude that this finding, in light of the evidence presented before the board and the court, was clearly erroneous. Given these substantial expenditures, it was not improper for the court to make the determination that the plaintiff would suffer a significant loss if the cease and desist order was enforced.

The board’s final claim is that the court improperly concluded that the plaintiff could complete construction of the structure. The board argues that the court should have remanded the matter to the board “for a more definitive statement ... as to how much of the presently constructed garage addition could remain.”

As correctly noted by the board in its appellate brief, “[t]he relief granted must be compatible with the equities of the case.” Dupuis v. Submarine Base Credit Union, Inc., supra, 170 Conn. 356. In the present case, the court found that the plaintiff met frequently with the town’s authorized agent, Bouteiller, and, relying on Bouteiller’s acts and statements, the plaintiff in good faith expended more than $100,000 after the zoning permit was issued for the construction of the proposed structure. As evidenced by the photographs in the record, the structure is partially completed. It is not clear what position the board would take if the court remanded this matter to the board. On the basis of its counsel’s statements, it is possible that it would conclude that any construction would violate the town’s setback regulations. See footnote 12 of this opinion. The court explicitly found that it “would be highly inequitable and oppressive” to allow the town to enforce its zoning regulations, as it has chosen to interpret them, under the circumstances of this case. The board has not demonstrated that the court’s determination of the appropriate remedy to apply in this matter was improper.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff filed a cross appeal, claiming that the court improperly determined that (1) the underlying zoning permit, which had never been appealed, could be reviewed by the board and (2) the plaintiff was not prejudiced by the board’s action in upholding the cease and desist order on grounds that were unrelated to those raised by that order.
      Because the plaintiffs appeal was sustained by the trial court, he was not aggrieved by the trial court’s decision for purposes of filing a cross appeal. This court, and the Supreme Court, in similar circumstances, have treated a cross appeal as an argument setting forth alternate grounds for affirming the trial court’s judgment. See, e.g., Wesley v. Schaller Subaru, Inc., 277 Conn. 526, 529 n.1, 893 A.2d 389 (2006).
      We affirm the judgment of the trial court on the ground decided by the trial court, however, and it therefore is not necessary to address the plaintiffs alternate grounds.

       The April 23, 2008 zoning permit provided: “Restore existing non-conforming garage [and] build 1450 sq. ft. addition (28 x 63). As built survey required of foundation.” The number “1450” was circled on the permit, and the notation “corrected to 1536” was written in the margin and initialed by Bouteiller.

       The parties agreed that the plaintiff could present evidence related to his expenditures with respect to this particular project, and the trial court allowed the plaintiffs testimony and the submission of exhibits. In appeals from zoning boards, additional evidence is permitted only under certain circumstances. See General Statutes § 8-8 (k), which provides in relevant part: “The court shall review the proceedings of the board and shall allow any party to introduce evidence in addition to the contents of the record if ... (2) it appears to the court that additional testimony is necessary for the equitable disposition of the appeal. . . .”

       An additional hearing was held on December 21, 2010, at which time the court questioned the parties regarding their posthearing briefs and issues related to the site visit.

       Because municipal estoppel is an equitable claim, it is for the trial court and not the board to determine whether the conduct of municipal officials justifies the invocation of the doctrine. See Bianco v. Darien, 157 Conn. 548, 554-55, 254 A.2d 898 (1969); Collins Group, Inc. v. Zoning Board of Appeals, 78 Conn. App. 561, 581, 827 A.2d 764, cert. denied, 266 Conn. 911, 832 A.2d 68 (2003).

       “No building or other structure, or part thereof, shall be constructed, reconstructed, enlarged, extended, moved or structurally altered until a Zoning Permit has been approved by the Zoning Enforcement Officer.” Morris Zoning Regs., art. I, § 3.

       Bouteiller explained at the zoning board hearing that the number he wrote on the permit was for the ground level footprint. Because there was to be no “living space” in the building, the zoning permit reflected the square footage of the foundation only.

       The plaintiffs plans for the proposed building did not include bedrooms, a kitchen or a full bath.

       The trial court made its determinations from the evidence submitted at the court hearing and from its review of the return of record submitted by the board.

       We already have discussed the claim that the plaintiff misled Bouteiller and the board. The trial court, as the fact finder, found Bouteiller and the plaintiff to be credible.

       With respect to the third factor required for establishing municipal estoppel, the defendants argue that the court could not properly find that the plaintiff changed his position in reliance on Bouteiller’s statements because there was conflicting evidence as to the actual statements made by Bouteiller or because Bouteiller was not credible. We previously discussed those claims and found them to be without merit.

       Although the defendants claim that many of the improvements would not be rendered useless if the plaintiff proceeded to build the one-story garage authorized by the zoning permit, we note that the defendants have not always taken consistent positions with respect to the size of the structure that the plaintiff legally could construct. The town attorney submitted an opinion letter for the zoning board hearing in which he opined that “the zoning enforcement officer approved a zoning permit for a one story structure 1450 sq. ft. in size, similar in style and appearance to the existing garage.” At the court hearing held on August 24, 2010, counsel for the board and Geremia stated that because of certain issues regarding the setback from the road, it was not certain that even a one-story accessory garage could be built on the property.