author: O’Connell, J.

text:
    State of Connecticut v. Gregory Oliver
    (6755)
    Borden, Daly and O’Connell, Js.
    Argued October 13
    decision released November 22, 1988

      Dennis F. O’Toole, assistant public defender, for the appellant (defendant).

      Vincent J. Dooley, deputy assistant state’s attorney, with whom, on the brief, was Christopher L. Morano, deputy assistant state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from the judgment of conviction, after a jury trial, of possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (a) and possession of a controlled substance in violation of General Statutes § 21a-279 (c). The defendant claims that the trial court erred in denying his motion to suppress evidence obtained in a search and seizure of his person. We find no error.

The following facts are relevant to the disposition of this appeal. A citizen advised a Hartford police officer that two men were selling drugs in front of her apartment building. The officer put the location under surveillance and within the next five to ten minutes observed what appeared to him to be a drug transaction between the defendant and another man. The officer radioed for assistance and, within seconds, a second police officer nearby in a police cruiser turned the corner onto the street in question. At this point, the defendant and the other man suddenly dashed off in opposite directions prompting each police officer to chase one of them on foot. During the chase, the defendant dropped a pouch which was picked up by the pursuing officer. Upon being apprehended, the defendant was arrested and the pouch was opened, revealing a quantity of heroin, cocaine and marihuana. There is no evidence that the police officer commanded the defendant to halt or otherwise indicated that he should stop running, or that the defendant was aware that he was being chased and hence that his freedom was arguably being restricted.

The defendant contends that the seizure of the pouch violated his fourth amendment rights under the United States constitution to be free from unreasonable searches and seizures. It is the defendant’s contention that his pursuit and seizure were unlawful because they did not meet the reasonable and articulable suspicion test of Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The defendant argues further that the officer’s illegal pursuit precipitated his throwing the pouch to the ground and therefore the pouch was the fruit of unconstitutional governmental activity and hence must be suppressed. We do not agree.

The question thus squarely presented is whether the pursuit of a suspect, without more, constitutes a seizure of the suspect. This question was answered by the United States Supreme Court in Michigan v. Chesternut, 486 U.S. 567, 108 S. Ct. 1975, 100 L. Ed. 2d 565 (1988), in which the court held that a fleeing defendant’s fourth amendment rights are not implicated until the pursuing police officer first signifies a command to halt. Chesternut applies a test of whether “ ‘in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’ ” Id., 573.

In the present case, the defendant and his companion fled upon seeing a police cruiser turn onto their street. Applying the reasonable person test of Chesternut, it cannot be said that a reasonable person would feel that his liberty was restricted in any way simply because he saw a police cruiser driving down the street.

Our own case law brings us to the same result. “We know of no Connecticut case . . . that holds that merely following another, absent any show of force or authority or direction to halt, constitutes a stop within the meaning of the fourth amendment.” State v. Rodriguez, 14 Conn. App. 574, 577, 542 A.2d 342 (1988) (holding that in a chase scenario the fourth amendment was not implicated until the pursuing officer commanded the suspect to halt); see also State v. Williamson, 10 Conn. App. 532, 540, 524 A.2d 655 (1987). Furthermore, the sudden flight of the defendant justified an inference of guilt on the part of the defendant and warranted further investigative activity, namely pursuit, by the police. State v. Rodriguez, supra, 578.

We conclude that the officer's pursuit and seizure of the pouch did not violate the defendant's fourth amendment rights. Therefore, the trial court was correct in denying the motion to suppress.

There is no error.

In this opinion the other judges concurred.

       Although the defendant refers to both the federal and state constitutions, he offers no separate analysis of the Connecticut constitution as a basis for different treatment of the federal and state claims. We therefore decline to undertake such analysis. State v. Bowden, 15 Conn. App. 539, 543 n.2, 545 A.2d 597, cert. denied, 209 Conn. 810, 548 A.2d 438 (1988).


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Clarence Goodrich et al. v. Thomas E. Dwyer et al.
    (6042)
    O’Connell, Stoughton and Norgott, Js.
    Argued October 18
    decision released November 22, 1988

      Kevin M. O’Brien, for the appellants (plaintiffs).

      John D. Boland, with whom, on the brief, was William H. St. Onge, for the appellees (defendants).
   Per Curiam.

The plaintiffs appeal from the judgment of the trial court in favor of the defendants. This action was brought pursuant to General Statutes § lSa-103 and sought to compel the defendants to repair and improve a roadway alleged by the plaintiffs to be a public highway in Killingly. The named plaintiff owns property in the vicinity of the roadway.

It was conceded that the town had never accepted the roadway as a public highway under General Statutes § 13a-48, so that it could have become a public highway only by operation of the common law. At common law, highways came into existence by dedication to the public use and acceptance by the public. The essential elements are the owner’s unequivocal intention to dedicate the way to public use and a general use by the public over a period long enough to indicate that it is acting on the basis of a claimed public right resulting from the owner’s dedication. Ventres v. Farmington, 192 Conn. 663, 666-67, 473 A.2d 1216 (1984). Whether there has been a dedication and whether there has been an acceptance are questions of fact; Ruggiero v. East Hartford, 2 Conn. App. 89, 94, 477 A.2d 668 (1984); for which the burden of proof rests upon the plaintiffs. Miller v. Grossman Shoes, Inc., 186 Conn. 229, 236, 440 A.2d 302 (1982). The court found that the plaintiffs offered no direct evidence of intent by the owner of the land to dedicate the roadway to public use as a highway, and that the plaintiffs had not shown acts or conduct from which such an intention might be implied. The court concluded that the roadway was not, nor had it ever been, a public highway of the town. The court further found that even if the roadway had ever been a public highway, the evidence established that the public had abandoned any rights it ever assumed to use the road as a highway prior to the time the plaintiffs purchased their property.

The plaintiffs claim that the trial court erred (1) in concluding that there had been no implied dedication and acceptance of the road as a public highway, and (2) concluding that the public had abandoned the road as a public highway.

It is well established that appellate courts will not retry facts or pass upon credibility of witnesses or the weight to be accorded the evidence. Our function on review is to determine whether the judgment of the trial court was clearly erroneous or if it was contrary to law. Golfin v. Plymouth Industrial Development Corporation of Connecticut, Inc., 15 Conn. App. 804, 543 A.2d 287 (1988). We conclude that it was neither.

There is no error.

       General Statutes § 13a-103 provides: “complaint to court for failure of town to maintain highway. Whenever any town fails to keep any highway within such town in good and sufficient repair or whenever the selectmen of any town fail to remove or cause to be removed any encroachments upon any highway in such town or to make such alterations or improvements therein as may be required by common convenience or necessity, the superior court for the judicial district in which such highway is located, upon the written complaint of six or more citizens of this state under oath, after due inquiry made by it, shall appoint a time and place when and where all persons interested may appear and be heard upon the propriety of such repairs, or of the removal of such encroachments, or of the making of such alterations and improvements, and shall give notice thereof to the first selectman of such town and to the person or persons maintaining such encroachments by causing a true and attested-copy of such complaint, accompanied with a summons notifying such parties of such time and place, to be left with each of such parties, or at his usual place of abode, by some proper officer at least six days inclusive before the day appointed for the hearing; but, before issuing any summons on such complaint, the court shall require of the complainants a sufficient bond for costs to the adverse parties and may, any time thereafter, require further bond for such costs. If the court finds that such highway should be repaired or that such encroachments should be removed or that such alterations and improvements should be made, it shall order the selectmen of such town to cause such highway to be repaired and such encroachments to be removed and such alterations and improvements to be made, and shall prescribe the manner and extent of such repairs and of the removal of such encroachments and of the making of such alterations and improvements and the time within which the work shall be done, and may, for reasonable cause, extend such time. The court shall assess the benefits resulting from such repairs or removal of encroachments or such alterations and improvements against any of the parties to be benefited, including such town. Such benefits as to such parties other than such town may be collected in the same manner as town taxes are collected.”


author: Foti, J.

text:
    State of Connecticut v. Robert Todd Melillo
    (6525)
    Dupont, C. J., Spallone and Foti, Js.
    Argued October 5
    decision released November 22, 1988

      Robert M. Casale, with whom, on the brief, was Tara Knight, law student intern, for the appellant (defendant).

      Rita M. Shair, deputy assistant state’s attorney, with whom, on the brief, was Arthur Hadden, former assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from a judgment of conviction, rendered after a jury trial, of possession of cocaine with intent to sell and sale of cocaine, both in violation of General Statutes § 2 la-278 (b). The defendant claims that the trial court erred (1) in denying his motion for judgment of acquittal, and (2) in refusing to grant a mistrial. We find no error.

The jury could reasonably have found the following facts. On November 29, 1986, members of the Statewide Narcotics Task Force (task force) placed the defendant under air and ground surveillance for the purpose of observing a prearranged sale of narcotics by the defendant to a police informant. That morning, Detective Robert Sage met with the informant, searched him and his vehicle, gave him $1500 in bills that had been photocopied, and instructed him to purchase one ounce of cocaine from the defendant. As planned, the informant proceeded to the parking lot of the Corner Cafe to await the defendant’s arrival.

At approximately 10:30 a.m., the defendant, driving a gray pickup truck, pulled into the parking lot of the Corner Cafe, where he entered the informant’s automobile. The defendant and the informant left the parking lot in the informant’s car and, after travelling a short distance, pulled over to the side of the road. Sergeant Angelo Tosi, who had the vehicle under surveillance, observed the defendant, while in the car, turn something over in his hand. Thereafter, the two drove back to the Corner Cafe where the defendant returned to his truck and drove away. The informant proceeded to the parking lot of the Barbecue Restaurant and waited. Meanwhile, the defendant, by a circuitous route, drove to a remote, wooded area near the Cheshire town line where he exited his truck, walked directly to a tree, moved around its base, and returned to his truck. Sergeants Tosi and John Snow, having followed him, remained near the wooded area after the defendant departed. The defendant drove directly to the Barbecue Restaurant parking lot, and the informant entered the defendant’s vehicle for a brief time. After leaving the defendant, the informant met task force members at a prearranged location. At that time, he turned over a substance which was field-tested and found to be cocaine. After searching the informant and his vehicle, no money was discovered.

Following this meeting with the informant, task force members searched the base of the tree where the defendant was observed earlier, and discovered a plastic container concealed by leaves and a rock. Inside this container, thirteen packets of white powder and a portion of a brick of the substance were found. The packets and brick were tested and determined to be cocaine.

The defendant’s first claim on appeal is that the trial court erred in denying his motion for judgment of acquittal because the chain of circumstances presented at trial was insufficient to establish beyond a reasonable doubt that the defendant possessed the cocaine found in the woods. In support of this claim, the defendant argues that the state’s case was based solely on circumstantial evidence and inferences that lacked adequate factual support.

“When the sufficiency of the evidence supporting a verdict is challenged, we must determine whether the trier of fact ‘ “could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt . . . .” ’ State v. Scielzo, 190 Conn. 191, 196, 460 A.2d 951 (1983).” State v. McCarthy, 197 Conn. 166, 178, 496 A.2d 190 (1985); State v. Parent, 8 Conn. App. 469, 472, 513 A.2d 725 (1986). “In so doing, we construe the evidence in a manner most favorable to sustaining the verdict. State v. Cimino, 194 Conn. 210, 211, 478 A.2d 1005 (1984).” State v. McCarthy, supra, 178; State v. Bettini, 11 Conn. App. 684, 687, 528 A.2d 1180, cert. denied, 205 Conn. 804, 531 A.2d 937 (1987). This court will not reweigh the evidence or resolve questions of credibility in making such a determination. State v. Boone, 15 Conn. App. 34, 47, 544 A.2d 217 (1988).

Although the defendant is correct that the evidence presented at trial was mostly circumstantial, it is well recognized that, as to probative force, there is no distinction between direct and circumstantial evidence. State v. Baskins, 12 Conn. App. 313, 316, 530 A.2d 663, cert. denied, 205 Conn. 811, 532 A.2d 586 (1987). “Every element of the crime charged must be so proved, and while the jury is entitled to draw reasonable, logical inferences from the facts proved, they may not speculate or guess at conclusions. ‘It is the cumulative impact of a multitude of facts, and not any one fact, which establishes guilt in a case involving substantial circumstantial evidence.’ ” Id., quoting State v. Gaynor, 182 Conn. 501, 503-504, 438 A.2d 749 (1980). The question for us to determine in this case is, therefore, whether it was reasonable and logical for the jury to have determined that the defendant possessed the cocaine. “In order to prove illegal possession of a narcotic substance, it is necessary to establish that the defendant knew the character of the substance, knew of its presence and exercised dominion and control over it.” State v. Alfonso, 195 Conn. 624, 633, 490 A.2d 75 (1985); State v. Parent, supra.

From the facts presented at trial it was reasonable for the jury to infer that the informant obtained the cocaine from the defendant and that the defendant retrieved it from the base of the tree in the wooded area where the police later found the container of cocaine. The cumulative effect of the evidence was sufficient to justify the jury’s rationally concluding that the defendant constructively possessed the plastic container and its contents. While it is true that the state did not produce the informant at trial and the state’s case was based primarily on circumstantial evidence, we conclude that there was sufficient evidence to present the case to the jury. See, e.g., State v. Mullings, 166 Conn. 268, 348 A.2d 645 (1974); State v. Baskins, supra. The trial court, therefore, properly denied the defendant’s motion for judgment of acquittal.

In the defendant’s second claim of error he asserts that the trial court erred in not granting his motion for a mistrial when a witness improperly mentioned the defendant’s prior drug sales. In response to a question during direct examination regarding his instructions to the informant, Sage referred to previous drug sales between the defendant and the informant. Instead of ordering a mistrial as the defendant requested, the court ordered the objectionable testimony stricken, and instructed the jury to disregard the officer’s remarks. The defendant argues that these measures were insufficient to overcome the overwhelming prejudice created by Sage’s reference to prior drug sales. We do not agree.

“A mistrial is appropriate only where it is apparent to the court that as a result of some occurrence during the trial a party has been deprived of an opportunity for a fair trial. State v. DeMatteo, 186 Conn. 696, 703, 443 A.2d 915 (1982); State v. Floyd, 10 Conn. App. 361, 364, 523 A.2d 1323, cert. denied, 203 Conn. 809, 525 A.2d 523 (1987).” State v. Flinter, 16 Conn. App. 402, 408, 548 A.2d 1 (1988). The burden is on the defendant to show that the challenged remarks were prejudicial in light of the entire proceedings. State v. Binet, 192 Conn. 618, 628, 473 A.2d 1200 (1984). The trial court is in the best position to determine whether a statement is so prejudicial as to rise to the level of unfairness; State v. Hill, 201 Conn. 505, 511, 523 A.2d 1252 (1986); and for this reason it has great latitude in ruling on a motion for a mistrial. State v. Nowakowski, 188 Conn. 620, 624, 452 A.2d 938 (1982). The question on appeal is not primarily whether the challenged remark was proper or improper, but whether the trial court, in refusing to grant a new trial, so far exceeded or abused its discretion so as to warrant granting a new trial. State v. Gaston, 198 Conn. 490, 496, 503 A.2d 1157 (1986). In reviewing motions for mistrial, our Supreme Court has determined that “[i]f curative action can obviate the prejudice, the drastic remedy of mistrial should be avoided.” State v. Maldonado, 193 Conn. 350, 356, 478 A.2d 581 (1984), citing State v. Altrui, 188 Conn. 161, 173, 448 A.2d 837 (1982).

The officer’s remark, although improper, was isolated, inadvertent, and in reply to a question by the prosecutor that did not elicit prejudicial material. This is not a situation in which prosecutorial misconduct is claimed. See State v. Dolphin, 195 Conn. 444, 452, 488 A.2d 812, cert. denied, 474 U.S. 833, 106 S. Ct. 103, 88 L. Ed. 2d 84 (1985); State v. Flinter, supra. Furthermore, the witness’ comment was not irreparably harmful. We are convinced that the prompt curative instruction given by the court adequately remedied any prejudice the defendant may have suffered. In addition, the case against the defendant was sufficiently strong so that “ ‘in all probability [the jury] would have found him guilty even absent the improper remarks.’ ” State v. Flinter, supra, 410, citing United States v. Modica, 663 F.2d 1173, 1181 (2d Cir. 1981). In light of the entire proceedings, we conclude that the defendant was not deprived of an opportunity for a fair trial and, therefore, the trial court’s denial of the defendant’s motion for a mistrial was well within the broad scope of its discretionary powers.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 21a-278 (b) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance, hallucinogenic substance other than marihuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years or, (2) such person’s mental capacity was significantly impaired but not so impaired as to constitute a defense to prosecution.”

       The officer testified as follows: “At that point I instructed him to meet with [the defendant] at the parking lot of the Comer Cafe in the town of Wallingford. I told him basically to purchase an ounce of cocaine from him. I wanted him to make sure that he maintained his purchase in the open parking lot so he would be observed by our surveillance and lastly, but more importantly, I told him I wanted that particular purchase to be consistent with all the previous cocaine purchases that [the informant] had made from [the defendant]. ” (Emphasis added.)

       The trial court, after discussing the language of the instruction with defense counsel, cautioned the jury as follows:
      “The Court: . . . I’ve heard argument of counsel and I’ve determined that a portion of the officer’s last answer is not appropriate and not properly made within our rules of evidence. So I’ve granted the defense’s motion to strike a portion of the answer. And I’m going to ask you to disregard it completely in your deliberations. Any evidence that comes in that doesn’t follow our rules of evidence, does not have the proper basis to be considered by you and you should disregard it.
      “The officer testified at the end of his answer that he instructed [the informant] to make a purchase consistent with — and he made some reference to consistent with prior purchases of cocaine from the defendant. I’m going to — I’ve stricken that answer. I tell you to disregard it in your deliberations. You should not consider it.in any way, because it is not proper evidence.”


author: Dupont, C. J.

text:
    Georgianne Perry v. Hospital of St. Raphael
    (6679)
    Dupont, C. J., Spallone and Foti, Js.
    Argued October 5
    decision released November 22, 1988

      Patrick J. Filan, with whom, on the brief, was W. Patrick Ryan, for the appellant (defendant).

      Bruce D. Jacobs, with whom, on the brief, was Regina DeLuca, for the appellee (plaintiff).
   Dupont, C. J.

The plaintiff brought this action against the defendant hospital to recover damages for injuries sustained in a fall at the hospital that occurred subsequent to her eye surgery. After a trial by jury, a verdict was returned for the plaintiff in the amount of $170,000. The trial court denied the defendant’s motion for judgment notwithstanding the verdict.

The defendant appeals, claiming that the trial court erred (1) in granting the plaintiff’s motion to preclude the defendant’s expert witness from offering testimony, (2) in admitting into evidence a statement contained in the records from a subsequent hospitalization of the plaintiff, and (3) in failing to seat an alternate as a sixth juror designated by lot pursuant to General Statutes § 51-243 (d).

This action was commenced in February, 1984. On March 12, 1987, the plaintiff filed interrogatories, requesting disclosure by the defendant of expert witness information. On May 14, 1987, the defendant answered that it had not yet selected its expert witnesses for trial. On September 28, 1987, the defendant disclosed James Shelton, an ophthalmologist, as an expert witness but failed to disclose the substance of the facts and opinions to which the witness was to testify or a summary of the grounds of his opinion as required by Practice Book § 220 (A) (l). On October 28,1987, less than two weeks before jury selection began, the defendant filed an additional response to the plaintiff’s request for disclosure, in which it provided the substance of the facts and opinions to which Shelton was expected to testify and disclosed for the first time an additional expert.

Subsequently, the plaintiff filed a motion for an order prohibiting the defendant from introducing at trial the testimony of its expert witnesses. The trial court, in granting the plaintiffs motion, found that the defendant had failed to provide full, open and timely disclosure despite ample opportunity to do so. The court noted the length of the litigation and the fact that the plaintiff had fully disclosed her experts more than one year before the defendant’s disclosure.

“The discovery rules are designed to facilitate trial proceedings and to make a ‘trial less a game of blind-man’s [buff] and more a fair contest with the basic issues and facts disclosed to the fullest practical extent.’ ” Perez v. Mount Sinai Hospital, 7 Conn. App. 514, 519, 509 A.2d 552 (1986), quoting United States v. Procter & Gamble, 356 U.S. 677, 682, 78 S. Ct. 983, 2 L. Ed. 2d 1077 (1958). When a party fails to comply with the requirements of Practice Book § 220, the trial court is authorized, pursuant to Practice Book § 231 (d) to prohibit the party from introducing designated matters into evidence. See Sturdivant v. Yale-New Haven Hospital, 2 Conn. App. 103, 106-107, 476 A.2d 1074 (1984). “ ‘ “The court’s decision on whether to impose the sanction of excluding the expert’s testimony concerning causation rests within the sound discretion of the court.” [Id.,] 107. Unless the trial court had abused a legal discretion, its action should not be disturbed; in making this analysis, we must afford the decision of the trial court great weight and allow every reasonable presumption to be made in favor of its correctness. Timm v. Timm, 195 Conn. 202, 206, 487 A.2d 191 (1985); Dudas v. Ward Baking Co., 104 Conn. 516, 518, 133 A. 591 (1926). “In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did.” Timm v. Timm, supra, 207; E. M. Loew’s Enterprises, Inc. v. Surabian, 146 Conn. 608, 611, 153 A.2d 463 (1959); Sturdivant v. Yale-New Haven Hospital, supra, 108. . . .’ Perez v. Mount Sinai Hospital, [supra].” Caccavale v. Hospital of St. Raphael, 14 Conn. App. 504, 507-508, 541 A.2d 893, cert. denied, 208 Conn. 812, 545 A.2d 1107 (1988); see Corosa Realty v. Covenant Ins. Co., 16 Conn. App. 684, 689, 548 A.2d 473 (1988). We conclude that the trial court did not abuse its broad discretion in finding that the defendant had failed to comply with discovery requirements and, thus, correctly precluded the defendant’s expert witness from testifying.

The defendant’s second claim of error is that the trial court erred in admitting into evidence statements contained in medical records made in connection with a surgical procedure performed subsequent to the surgery for which the plaintiff was hospitalized at the time of her fall. At the time of her fall in January, 1982, the plaintiff was hospitalized at the defendant hospital for cataract surgery on her right eye. The plaintiff underwent a similar surgical procedure at Yale-New Haven Hospital on her left eye in 1983. The discharge summary recorded in connection with the latter procedure contained an entry indicating that the plaintiff had undergone previous cataract surgery on her right eye which had been complicated by a postoperative fall.

The defendant objected to the admission of the unedited discharge summary and took exception to the trial court’s overruling of that objection. The defendant claims that the statement, as to the cause of the complication of the plaintiffs right eye surgery, was not made for the purpose of present diagnosis and treatment of her left eye, and thus was not within the scope of the hearsay exception for hospital records. Accordingly, the defendant contends that the statement contained on the discharge summary should have been deleted by the trial court. We disagree.

“Pursuant to General Statutes § 52-180, business records, although otherwise hearsay, are admissible if certain conditions are satisfied. One such condition is that they must have been made in the regular course of business. State v. Waterman, 7 Conn. App. 326, 341, 509 A.2d 518 [, cert. denied, 200 Conn. 807, 512 A.2d 231] (1986). Under General Statutes § 4-104, hospital records qualify for admission subject to the same conditions. ‘ “The real business of a hospital is the care and treatment of sick and injured persons. It is not to preserve information for use in litigation. Accordingly, even though it might be the custom of a hospital to include in its records information relating to questions of liability for injuries which had been sustained by its patients, such entries . . . would not be made admissible by the statute unless they also contained information having a bearing on diagnosis or treatment.” D'Amato v. Johnston, 140 Conn. 54, 61, 97 A.2d 893 [1953].’ Kelly v. Sheehan, 158 Conn. 281, 285, 259 A.2d 605 (1969). ‘This means that the relevancy of the entry in question to the business of the hospital at the time the entry was made — that is to the care and treatment of the patient [at the time of her admission]— determines its admissibility and is a preliminary question of fact for the trial judge. D'Amato v. Johnston, supra. His decision must stand unless it is one which he would not reasonably have reached.’ Maggi v. Mendillo, 147 Conn. 663, 667, 165 A.2d 603 (1960).” State v. Egan, 9 Conn. App. 59, 68, 514 A.2d 493, cert. denied, 201 Conn. 811, 516 A.2d 886 (1986).

Under the facts of this case, the court could reasonably have concluded that the entry of the statement was relevant to the treatment and diagnosis of the condition of the plaintiffs left eye. This is not a case, as the defendant suggests, analagous to that of Maggi v. Mendillo, supra, where the plaintiff attempted to introduce into evidence hospital records made in connection with incomplete abortion complications that contained a statement concerning the plaintiff’s laryngeal nerve. There, the court found that the plaintiff’s throat condition had no bearing on or connection with the diagnosis or treatment of the incomplete abortion complications.

Here, at the time the statement was made, the plaintiff was about to undergo cataract surgery on her left eye. The statement was made in connection with events that had occurred shortly after the previous cataract surgery on the plaintiff’s right eye. It seems apparent that a hospital performing surgery on one eye would need to be aware of complications that arose subsequent to the same or similar surgical procedure on the other eye. In coming to a proper diagnosis and plan of treatment, the hospital would be aided by knowing the cause of a complication that resulted from a similar previous surgery. See State v. Egan, supra, 69. Accordingly, the trial court did not err in refusing to delete the entry in question from the discharge summary.

The defendant’s final claim of error is that the trial court erred in assigning an alternate juror to be seated on the regular jury panel, rather than drawing lots as provided by General Statutes § 51-243 (d). The defendant claims that the court improperly impanelled as the sixth juror an alternate who was appointed by the court to sit on the regular panel.

General Statutes § 51-243 (d) provides in pertinent part: “If any juror is so excused or dies, the court may order that an alternate juror who is designated by lot to be drawn by the clerk, shall become a part of the regular panel and the trial shall then proceed as though the alternate juror had been a member of the regular panel from the time when the trial was begun.” The defendant claims that the language of § 51-243 (d) regarding the choosing of alternates by lot is mandatory and does not leave the manner of seating an alternate on the regular panel to the court’s discretion.

The plaintiff contends that the language of § 51-243 (d) leaves the method of seating alternates to the court’s discretion and, in the alternative, that the mandatory language of § 51-243 (d) applies only to the seating of alternates during trial, and not, as is the case here, to the seating of alternates prior to the jury’s being sworn.

The trial court’s finding of facts reveals the following. At the time the present case was transferred to the trial court for trial, the parties had selected a jury of six and two alternates. Prior to the jury’s being sworn, the trial court excused a member of the regular jury because of illness. Prior to commencement of selection of an additional alternate, a second juror was excused for personal reasons. The parties and the trial court mistakenly thought that the first and second excused jurors were one and the same person and that there were five members of the regular jury panel and two alternates left. At that time, defense counsel suggested and the plaintiff’s counsel agreed that the first person originally selected as an alternate be seated as a regular juror. Thereafter, an additional alternate was selected to replace the alternate seated on the regular panel.

It then was determined that two members of the original jury panel of six had in fact been excused, and the question arose as to the method to be employed in seating a second alternate. At that time, the second original alternate and the newly selected alternate were available. The defendant declined to agree to the plaintiff’s request that the second original alternate be seated as a regular juror and requested that the juror be selected by lot pursuant to § 51-243 (d). The trial court concluded that the parties should follow the previous selection procedure and that it would be inappropriate to use a different method to seat a second alternate. The court then ordered the second original alternate seated.

The facts of this case render it unnecessary to determine the correct interpretation of the statute. Prior to the selection of an additional alternate, two vacancies actually existed on the regular panel. Had the trial court been aware of the two vacancies that existed, both original alternates would have been selected to replace the two excused jurors. Whether the court appointed the two original alternate jurors to the regular panel or chose by lot would have made no difference in the composition of the jury panel.

We therefore find that, under the particular facts of this case, there was no error in the method employed by the trial court to seat the alternate juror on the regular panel.

There is no error.

In this opinion the other judges concurred.

       Practice Book § 220 (A) (1) provides: “A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.”

       Although the trial court excluded the testimony of both expert witnesses, the defendant contests on appeal only the exclusion of Shelton’s testimony.

       Practice Book § 231 provides: “If any party has failed to answer interrogatories or to answer them fairly ... or has failed otherwise substantially to comply with any other discovery order . . . the court may, on motion, make such order as the ends of justice require. Such orders may include the following . . . (d) The entry of an order prohibiting the party who has failed to comply from introducing designated matters in evidence. . . .”


text:
    State of Connecticut v. Thomas Cushman
    (6629)
    Dupont, C. J., Spallone and Foti, Js.
    Argued October 7
    decision released November 29, 1988

      Stephen Fournier, special public defender, for the appellant (defendant).

      John O’Meara, deputy assistant state’s attorney, with whom, on the brief, was Eugene Callahan, state’s attorney, for the appellee (state).
   Per Curiam.

The sole issue of this appeal is whether the trial court erred in refusing to instruct the jury on renunciation of criminal purpose in connection with the charge of attempt to commit robbery. The defendant was found guilty, by a jury, of burglary in the third degree, unlawful restraint in the second degree, and attempted robbery in the third degree.

The jury could reasonably have found certain relevant facts. The victim, upon hearing noises while she was upstairs in her home, went downstairs to investigate, leaving her twenty month old daughter asleep in a nursery on the second floor. The defendant, a stranger to her, was downstairs. She ran upstairs to the nursery and the defendant followed. He tied her hands behind her back with an article of the baby’s clothing, and forced her into the master bedroom. She untied her hands and he tried to tie them again with a strap he found in the bedroom. He tried to pull her rings from her fingers and asked for money. She escaped from him and ran back to the nursery. There she struggled with the defendant and kicked him in the groin. He fell to his knees, and then she kicked and pushed him toward the stairs, causing him to fall down the stairs. He then ran out of the house.

The defendant relied on General Statutes § 53a-49 (c) in his written request to charge, and sought a charge which basically tracked the language of the statute, claiming that “he abandoned his effort to commit the crime . . . under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.” The facts do not indicate that there was a voluntary renunciation of a criminal purpose. General Statutes § 53a-50.

There is no error.


text:
    Richard E. Mahoney, Sr., Administrator (Estate of Richard E. Mahoney, Jr.) et al. v. Brian Lensink, Commissioner of the Department of Mental Retardation, et al.
    (6331)
    Dupont, C. J., Borden and Norcott, Js.

      Argued September 14
    decision released November 29, 1988

      William B. Wynne, for the appellants (plaintiffs).

      Andrea Gaines, assistant attorney general, with whom were Henri Alexandre, assistant attorney general, and, on the brief, Joseph I. Lieberman, attorney general, and Richard J. Lynch, assistant attorney general, for the appellees (defendants).
   Dupont, C. J.

The plaintiffs, Richard E. Mahoney, individually and in his capacity as administrator of his son’s estate, and Barbara Mahoney, individually, brought this action against the commissioners of mental health, state police and mental retardation. They alleged that the death of their son, while a patient at Norwich Hospital, was caused by the defendants’ negligent, wanton, and willful misconduct, and that the defendants deprived their son of his personal, property and civil rights in violation of General Statutes § 17-206b, and of his right to receive humane and dignified treatment in violation of General Statutes § 17-206c. In addition to claims made on behalf of the estate, the plaintiffs sought, as individuals, to recover for funeral and probate expenses incurred, as well as for the loss of consortium they claim to have suffered as a result of their son’s death. The defendants moved to dismiss, asserting that the plaintiffs are barred by the doctrine of sovereign immunity from bringing the action against the state or its commissioners, and that, accordingly, the court lacked subject matter jurisdiction. The motion to dismiss was granted and this appeal followed.

The amended complaint, to which the defendants’ motion to dismiss is addressed, contains twelve counts and alleges that the plaintiffs’ decedent, Richard Mahoney, Jr., while a voluntary admission patient at Norwich Hospital, was killed when he jumped from an oil tank reserve located on the grounds of the hospital. The plaintiffs’ appeal concerns counts ten, eleven and twelve of the amended complaint. Count ten alleges that the defendants violated the decedent’s rights in violation of General Statutes §§ 17-206b and 17-206c. Counts eleven and twelve allege that as a result of the violation of these statutes the plaintiffs have incurred funeral and probate expenses and have suffered a loss of consortium with their son. The statutory claims are based on various allegations as to the defendants’ conduct, including failure to supervise the decedent, failure to take suicide precautions, failure to provide proper counseling and medication, and failure to report timely the decedent missing. These counts allege that General Statutes § 17-206k is the basis for the court’s jurisdiction.

The case before us is one of first impression. The controlling issue is whether the legislature intended General Statutes § 17-206k to waive the sovereign immunity of the state and impose direct liability for violations of General Statutes §§ 17-206b and 17-206c on the state and its commissioners, and, if so, whether the allegations of the complaint sufficiently allege a violation of §§ 17-206b and 17-206c.

The trial court, in granting the defendants’ motion to dismiss, found that § 17-206k does not constitute legislative consent to a suit for damages against the state or its commissioners. The plaintiffs’ claim is that § 17-206k operates as a waiver of the state’s sovereign immunity and permits state mental health facility patients aggrieved by violations of General Statutes §§ 17-206b and 17-206c to bring an action directly against the state or its commissioners, rather than pursuing a claim to the claims commissioner.

“The state’s sovereign right not to be sued may be waived by the legislature, provided clear intention to that effect is disclosed ‘by the use of express terms or by force of a necessary implication.’ ” Duguay v. Hopkins, 191 Conn. 222, 228, 464 A.2d 45 (1983), quoting Baker v. Ives, 162 Conn. 295, 298, 294 A.2d 290 (1972). The defense of sovereign immunity is not allowed where the legislature has consented to being sued. Skinner v. Angliker, 15 Conn. App. 297, 300, 544 A.2d 246 (1988), cert. granted on other grounds, 209 Conn. 807, 548 A.2d 438 (1988).

In analyzing the statute at issue, well established rules of statutory construction control. “It is a fundamental principle of statutory construction that statutes are to be construed so that they carry out the intent of the legislature.” State v. Campbell, 180 Conn. 557, 561, 429 A.2d 960 (1980). In construing a statute, this court will consider the language of the statute, its legislative history and previous judicial construction. Norwich v. Silverberg, 200 Conn. 367, 371, 511 A.2d 336 (1986). Since there is neither a judicial construction nor any pertinent legislative history of § 17-206k, we are left with the language of the statute in determining whether it was intended to act as a waiver to the state’s sovereign immunity.

Section 17-206k provides that “[a]ny person aggrieved by a violation of sections 17-206a to 17-206j, inclusive, may petition the superior court within whose jurisdiction the person is or resides for appropriate relief, including temporary and permanent injunctions, or may bring a civil action for damages.” The plaintiff claims to have been aggrieved by violations of §§ 17-206b and 17-206c. Section 17-206b provides, in pertinent part, that “[n]o patient hospitalized or treated in any public or private facility for the treatment of the mentally disordered shall be deprived of any personal, property or civil rights, including the right to vote, hold or convey property, and contract, except in accordance with due process of law, and unless he has been declared incompetent pursuant to Chapter 779.” Section 17-206c provides in pertinent part: “Every patient treated in any facility for treatment of the mentally disordered shall receive humane and dignified treatment at all times, with full respect for his personal dignity and right to privacy. Each patient shall be treated in accordance with a specialized treatment plan suited to his disorder.”

The language “any public or private facility” and “every patient treated in any facility” indicates that the legislature intended patients of state, municipal and private mental hospitals to be guarantied the rights provided by §§ 17-206b and 17-206c.

The defendants do not contest the conclusion that patients of state mental health facilities are entitled to the rights afforded by §§ 17-206b and 17-206c. They argue, however, that state patients aggrieved by violations of §§ 17-206b and 17-206c are required to pursue their claims in a different forum than private mental hospital patients, that is, through the commissioner of claims. See footnote 2, supra.

It is a basic rule of statutory construction that a statute is to be construed as a whole and each part reconciled. United Aircraft Corporation v. Fusari, 163 Conn. 401, 411, 311 A.2d 65 (1972). Section 17-206k must be construed in light of the rights for which it provides remedies. Section 17-206k provides remedies for “any person aggrieved by a violation of §§ 17-206a to 17-206j, inclusive.” The remedy is by petition to the Superior Court and includes “a civil action for damages.” Patients in state mental health facilities are included among the class of individuals potentially aggrieved by violations of §§ 17-206b and 17-206c, the sections on which the plaintiffs’ claims rely. Section 17-206k does not distinguish between remedies available to state facility patients and those available to private facility patients. No reference is made to chapter 53 of the General Statutes and its provisions for prior authorization by the claims commissioner for suits against the state. Duguay v. Hopkins, supra, 230. We conclude that § 17-206k was intended by the legislature to authorize direct civil actions against the state or its commissioners by patients of state mental health facilities aggrieved,by violations of §§ 17-206b and 17-206c.

Having concluded that § 17-206k permits direct civil actions against the state, we must determine whether the allegations of the complaint sufficiently allege a cause of action for violations of §§ 17-206b and 17-206c. When the state waives its sovereign immunity by statute, “a party attempting to sue under the legislative exception must come clearly within its provisions . . . . ” Berger, Lehman Associates, Inc. v. State, 178 Conn. 352, 356, 422 A.2d 268 (1979). The defendants contend that the plaintiffs have failed to allege facts sufficient to state a cause of action under either § 17-206b or § 17-206c and that, accordingly, the defendants’ motion to dismiss was properly granted.

“A motion to dismiss properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.” (Emphasis in original.) Baskin’s Appeal from Probate, 194 Conn. 635, 640, 484 A.2d 934 (1984). “The motion to dismiss like a ‘motion to erase admits all facts which are well pleaded, invokes the existing record and must be decided on that alone.’ Perrys, Inc. v. Waterbury Redevelopment Agency, 157 Conn. 122, 124, 249 A.2d 256 (1968).” Barde v. Board of Trustees, 207 Conn. 59, 62, 539 A.2d 1000 (1988). Accordingly, in evaluating the sufficiency of the plaintiffs’ complaint, we presume the validity of the allegations contained therein.

The plaintiffs’ complaint does not distinguish between §§ 17-206b and 17-206c, but instead, claims that the defendants’ alleged misconduct amounts to a violation of both statutes. We find it necessary, however, to distinguish between the statutes in determining the sufficiency of the plaintiffs’ claims.

Section 17-206b provides that “[n]o patient hospitalized or treated in any public or private facility for the treatment of the mentally disordered shall be deprived of any personal, property or civil rights, including the right to vote, hold or convey property, and contract, except in accordance with due process of law, and unless he has been declared incompetent pursuant to chapter 779. Any finding of incompetency shall specifically state which civil or personal rights the patient is incompetent to exercise.”

The statute guaranties that a mental health facility patient cannot be deprived of the opportunity to exercise certain rights, such as the right to vote, contract, or hold property, unless due process has been afforded and unless the patient has been declared incompetent. Thus, the statute requires that due process be afforded when suspending a patient’s rights, and mandates that he or she may not be deprived of those rights without a finding that a patient is in fact incompetent to exercise them.

The rights to which the plaintiffs claim the decedent was entitled are not susceptible to the due process guaranties of § 17-206b. Section 17-206b guaranties that hospitalization or treatment in a mental health facility may not serve as the basis for the deprivation of a right that a patient may have held absent hospitalization or treatment. See comment, “The Mentally 111 in Connecticut — A Survey,” 6 Conn. L. Rev. 303, 330 (1973-74). The rights to which the plaintiffs claim the decedent was entitled, that is, proper counseling, medication and suicide precautions, are not rights held absent hospitalization, but instead arise, if at all, as a result of his hospitalization.

We conclude from the language of the statute that the “personal, property or civil rights” contemplated by § 17-206b consist of those rights that a patient might conceivably be unable to exercise due to incompetence, and, thus, that might properly be suspended if due process is provided. We, therefore, find that the plaintiff’s complaint fails to state a cause of action for violation of the decedent’s rights under § 17-206b.

The plaintiffs’ allegations, however, fare better when analyzed under § 17-206c. The language of the statute indicates generally that a patient in a mental health facility is entitled to humane and dignified treatment, and specifically that a patient is entitled to a treatment plan tailored to his particular disorder.

The defendants argue that the guaranties of humane and dignified treatment provided by § 17-206c contemplate only the protection of personal dignity and privacy, such as the right to refuse medication and other treatment. The statute, however, clearly provides that a patient is entitled to a specialized treatment plan tailored to his particular disorder. Thus, under § 17-206c, a patient has a positive right to treatment, rather than simply a negative right to refuse it.

The plaintiff has alleged that the decedent suffered from a mental illness that included suicidal tendencies, and that the defendants failed to provide proper counseling, medication, supervision or suicide precautions, so as to prevent the decedent from acting on his suicidal tendencies. Viewing the allegations broadly, as we must on a motion to dismiss, the plaintiffs’ complaint can be read to allege that the defendants failed to provide the decedent with a treatment plan suited to his mental disorder.

The defendants also contend that the plaintiffs’ claims are based solely in negligence, and, as such, do not amount to a cause to action under § 17-206c. The defendants rely on federal cases decided under 42 U.S.C. § 1983, which authorizes a civil action for deprivations of “rights, privileges, or immunities secured by the Constitution and laws” under color of state law or custom. Federal courts have recognized, to varying extents, that a failure to provide treatment and personal safety to patients institutionalized in state mental health facilities may amount to a violation of a patient’s rights under 42 U.S.C. § 1983. See, e.g., Harper v. Cserr, 544 F.2d 1121 (1st Cir. 1976); Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974); Philipp v. Carey, 517 F. Supp. 513, (N.D.N.Y. 1981). In formulating standards by which to evaluate claims based on a right to treatment, federal courts have held that a “mere negligent failure to afford proper treatment” does not amount to a cause of action under 42 U.S.C. § 1983. Harper v. Cserr, supra, 1122. The defendants contend that § 17-206c similarly requires allegations rising above negligence.

The defendants’ reliance on § 1983 cases, however, is misplaced. The right to treatment recognized by federal courts is grounded in substantive liberty interests secured by the federal due process clause. Philipp v. Carey, supra, 516. The United States Supreme Court has held, in the context of § 1983 cases, that acts of negligence do not violate an individual’s rights under the due process clause of the United States constitution. Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986);Davidson v. Cannon, 474 U.S. 344, 106 S. Ct. 668, 88 L. Ed. 2d 677 (1986). Thus, the limits on the right to treatment recognized by the federal courts are based on constitutional considerations.

Section 17-206c, however, is not tied to constitutional rights. The statute simply gives a statutory right to humane and dignified treatment to patients treated in mental health facilities. Therefore, the right to humane and dignified treatment provided by § 17-206c is not subject to the limits imposed on the right to treatment as recognized under the federal constitution.

Section 17-206c creates a new tort liability based upon a specified course of conduct that is not dependent upon common law negligence. See Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341, 348-49, 493 A.2d 184 (1985). The allegations that the defendants violated the terms of the statute stand alone and suffice to state a cause of action. Gionfriddo v. Gartenhaus Cafe, 15 Conn. App. 392, 394 n.1, 546 A.2d 284 (1988), cert. granted on other grounds, 209 Conn. 809, 548 A.2d 437 (1988). Therefore, an evaluation of claims made under § 17-206c does not require a determination that the plaintiffs have alleged negligent, reckless, wanton or intentional conduct on the part of the defendants.

Viewing the allegations of the complaint and reasonable inferences that can be drawn therefrom, we conclude that the allegations of count ten, which solely relate to claims on behalf of the decedent’s estate, are sufficient to state a cause of action under § 17-206c. These allegations, therefore, come within the sovereign immunity waiver provisions of § 17-206k.

The plaintiffs’ individual claims for funeral expenses and loss of consortium, as alleged in counts eleven and twelve, however, require a different analysis.

A legislative waiver of sovereign immunity waives the state’s immunity only as to the actions specified. See Duguay v. Hopkins, supra, 229. A party who wishes to sue under a legislative waiver of sovereign immunity must come within its provisions. Id., 232. The plaintiffs, as individuals, do not belong to the class of persons to whom rights are afforded under §§ 17-206b and 17-206c, the sections on which their claims are based, and therefore are not members of the class authorized to bring suit under § 17-206k. Although funeral expenses may be obtainable as an element of damages sought by the decedent’s estate, the plaintiffs’ individual claim for funeral expenses against the defendant commissioners is not authorized by § 17-206k and is thus barred by the doctrine of sovereign immunity.

The plaintiffs’ claim for loss of consortium fails for the same reason as does their claim for funeral expenses. Moreover, the plaintiff’s consortium claim is for loss of filial, rather than spousal consortium. The right to consortium is said to arise out of the civil contract of marriage and as such, does not extend to the parent-child relationship. See Hopson v. St. Mary’s Hospital, 176 Conn. 485, 487, 408 A.2d 260 (1979).

Finally, a claim for loss of consortium exists only as to antemortem loss of consortium. Ladd v. Douglas Trucking Co., 203 Conn. 187, 523 A.2d 1301 (1987). The plaintiffs’ claim for loss of consortium is framed in terms of postmortem loss of consortium. Thus, even if an action for loss of filial consortium were said to exist, and even if the plaintiffs individually acquired a cause of action pursuant to § 17-206c, the decision in Ladd forecloses the plaintiffs’ claim.

The trial court’s decision to dismiss the plaintiffs’ complaint was error, in part, as to count ten, but not error as to counts eleven and twelve.

There is error in part, the judgment of dismissal as to the allegations of count ten relating to a violation of General Statutes § 17-206c is set aside and the case is remanded to the trial court for further proceedings in accordance with law.

In this opinion the other judges concurred.

       This appeal was withdrawn as to the defendant Brian Lensink, commissioner of mental retardation. The plaintiffs have alleged that the commissioner of state police is responsible for certain security personnel at Norwich Hospital and, as such, he is included as a defendant in the complaint.

       General Statutes § 4-142 provides in pertinent part: “There shall be a claims commissioner who shall hear and determine all claims against the state except ... (2) claims upon which suit otherwise is authorized by law.” Section 4-160 (a) provides in pertinent part: “When the claims commissioner deems it just and equitable, he may authorize suit against the state on any claim which, in his opinion, presents an issue of law or fact under which the state, were it a private person could be liable.”

       In Gutierrez v. Thorne, 13 Conn. App. 493, 537 A.2d 527 (1988), the plaintiff brought suit against the commissioner of mental retardation for injuries sustained by the plaintiff while she was a client in a department program. Although the plaintiff’s complaint included a count based on General Statutes § 17-206c, the plaintiff did not allege jurisdiction pursuant to § 17-206k. The defendant conceded that § 17-206c provided a direct cause of action against him and that sovereign immunity was waived by virtue of General Statutes § 19a-24, which authorizes civil actions for damages against the commissioner of health services and the commissioner of mental retardation. As to the substance of the § 17-206c count, the trial court and the plaintiff treated the § 17-206c claims as essentially identical to the plaintiff’s negligence claims. We expressed no opinion as to the correctness of that position. Gutierrez v. Thorne, supra, 502 n.4.

       See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 1971 Sess., p. 640-44.

       Even if a violation of the right to humane and dignified treatment under § 17-206c were said to require something more than negligent conduct on the part of a defendant, facts similar to these alleged here by the plaintiff, that is, failure to restrict or control a patient so as to prevent suicide, have been held to be sufficient to allege such a degree of wanton neglect so as to state a cause of action for violation of a patient’s rights under 42 U.S.C. § 1983. See Harper v. Cserr, 544 F.2d 1121 (1st Cir. 1976); see also Kowal v. Hofher, 181 Conn. 355, 436 A.2d 1 (1980).

       The decedent’s statutory right of action under § 17-206k survives his death by virtue of General Statutes § 52-599, which provides in pertinent part: “(a) A cause or right of action shall not be lost or destroyed by the death of any person, but shall survive in favor of or against the executor or administrator of the deceased person.” Thus, the decedent’s administrator is a proper party to bring an action pursuant to § 17-206k.

       No appellate court case has yet addressed squarely the issue of whether, under any circumstances, a cause of action for the loss of filial consortium lies.


author: Norcott, J.

text:
    State of Connecticut v. Patrick Enright, Jr.
    (6578)
    O’Connell, Stoughton and Norcott, Js.
    Argued October 18
    decision released December 6, 1988

      Andrew B. Bowman, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Linda Knight and Richard F. Jacobson, assistant state’s attorneys, for the appellee (state).
   Norcott, J.

The defendant was arrested on October 24,1986, at a college party at his residence in Fair-field after the police witnessed a drug sale in the hallway of the residence. Prior to trial, the defendant filed a motion to suppress any statements and all tangible evidence obtained from his person and his home after a warrantless entry by the police. The trial court denied the motion, finding that the entry was justified by exigent circumstances. We find no error.

On September 23,1987, the defendant entered a conditional plea of nolo contendere under General Statutes § 54-94a to a substitute information charging him with one count of the sale of cocaine and one count of possession with intent to sell cocaine, in violation of General Statutes § 2 la-277 (a), and with one count of possession of marihuana in violation of General Statutes § 21a-279 (c). The defendant appeals from the judgment of conviction.

On appeal, the defendant claims that the trial court erred in refusing to suppress evidence obtained as a result of the warrantless entry of his residence. He contends that the warrantless, nonconsensual entry into the private dwelling at 531 Fairfield Beach Road violated his right to be free from unreasonable searches and seizures guarantied by the fourth amendment to the constitution of the United States and by article first, § 7, of the Connecticut constitution.

From the evidence revealed at the suppression hearing, the court reasonably could have found the following facts. On October 24,1986, the defendant was one of seven people sharing and paying rent for a house located at 531 Fairfield Beach Road. On that date, Jean McEldowney and her husband owned and lived in an adjoining house located at 519 Fairfield Beach Road. During the evening of October 24,1986, a large party was taking place at the defendant’s home. Jean McEldowney telephoned the Fairfield police to complain about certain activities taking place within the defendant’s home. McEldowney told the police that from her living room window she had an unobstructed view into one of the bedrooms and that she had observed three females inhaling a white powdery substance set out on a mirror. The McEldowneys concluded that the white powdery substance was cocaine. The couple continued to observe the individuals in the bedroom for about ten minutes until the police arrived at their home.

Sergeant Thomas Mrozek of the Fairfield police arrived at about 11:30 p.m., and, from the same unobstructed vantage point in the McEldowneys’ living room, observed five females gathered around a mirror. Mrozek testified that he observed one female arrange a white powdery substance into short white lines on the mirror and then observed each female take a turn inhaling the powder through a short straw. Mrozek, a nine year veteran of the police force with experience in the investigation of drug related cases, concluded that the females were inhaling cocaine. He radioed for assistance and continued to observe the females for a short period until Officers Michael Pomarico and Collin Ruane of the Fairfield police department arrived and met him in the driveway of the McEldowney home. All three officers were in uniform. Pomarico testified that from the driveway he had observed several females in the bedroom pointed out by Mrozek.

The three officers went to the back porch of the defendant’s home where they found both the screen door and the main door open. Fifty to seventy people were freely coming and going, in and around the house. On the back porch, Mrozek asked a group of people where the owners or renters of the dwelling were and if the police might come in. No one in the group responded and they all dispersed. The police then entered the house and immediately encountered a second group. The police addressed the same questions to this group with the same results.

The officers then proceeded to the stairway, climbed to the second floor, and headed for the bedroom where the females had been observed inhaling cocaine. As Mrozek approached the open bedroom door, he observed the defendant and another male facing each other just inside the bedroom. Mrozek testified that he saw the two exchange cash for an envelope and believed that he had just observed a drug transaction. He approached the purchaser and touched the man’s left hand. The man turned his hand over and revealed a small white envelope of the type commonly used to package cocaine. After observing the contents of the envelope, Mrozek ordered Pomarico to arrest the purchaser. Mrozek arrested the defendant and, incident to this arrest, seized cash and checks totalling $365 and other packets of white powder. The powder later tested positive as cocaine.

Only one of the five females originally observed by Mrozek remained in the bedroom. The police found the mirror under the bed and seized it along with a straw and a razor blade. No powder remained on the mirror. None of the females were arrested.

At the suppression hearing, Kevin Coghlan, a cotenant of the house, testified that when he approached the premises after the police had arrived, he found the screen door closed. He also testified that unidentified police officers pushed him aside and ignored his protest against their intrusion.

The dispositive issue of this appeal is whether the trial court erred in concluding, on the basis of the evidence adduced at the suppression hearing, that the warrant-less entry into the defendant’s home was justified by exigent circumstances. It is the function of this court to determine whether the trial court’s decision was clearly erroneous in light of the evidence in the whole record. Practice Book § 4061; State v. Reagan, 209 Conn. 1, 8, 546 A.2d 839 (1988). After a careful review of the record, we conclude that the trial court did not err.

Both the state and federal constitutions “ ‘equally and co-jointly prohibit unreasonable warrantless searches of private property. . . State v. Zindros, 189 Conn. 228, 238, 456 A.2d 288 (1983), cert. denied, 465 U.S. 1012, 104 S. Ct. 1014, 79 L. Ed. 2d 244 (1984), quoting Dotson v. Warden, 175 Conn. 614, 618, 402 A.2d 790 (1978); State v. Harris, 10 Conn. App. 217, 224, 522 A.2d 323 (1987). Warrantless searches and seizures inside a home are presumptively unreasonable. Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980). “ ‘Absent consent or exigent circumstances, a private home may not be entered to conduct a search or effect an arrest without a warrant. Steagald v. United States, 451 U.S. 204 [101 S. Ct. 1642, 68 L. Ed. 2d 38] (1981); Payton v. New York, [supra]; Johnson v. United States, 333 U.S. 10 [68 S. Ct. 367, 92 L. Ed. 436] (1948).’ Donovan v. Dewey, 452 U.S. 594, 598 n.6, 101 S. Ct. 2535, 69 L. Ed. 2d 262 (1981).” State v. Reagan, supra. The burden is on the state to show that an exception exists. State v. Harris, supra.

The question of what constitutes exigent circumstances justifying a warrantless entry of a private dwelling has been a difficult one for both the police and the courts. The term “exigent circumstances” generally refers to “those situations in which law enforcement agents will be unable or unlikely to effectuate an arrest, search or seizure, for which probable cause exists, unless they act swiftly and, without seeking prior judicial authorization.” United States v. Campbell, 581 F.2d 22, 25 (2d Cir. 1978); State v. Harris, supra, 227. We have recently noted that “[t]he parameters of exigent circumstances are neither so well defined nor so sharply delineated that the phrase may be regarded as a free port of entry for all purposes.” State v. Guertin, 190 Conn. 440, 447, 461 A.2d 963 (1983); State v. Harris, supra. The question in the present case is whether the trial court erred in finding that the state proved the existence of exigent circumstances justifying a warrantless entry into the private residence.

Our Supreme Court has already struggled with the formulation of a test for determining whether a given set of circumstances is exigent. In State v. Guertin, supra, 453, the court adopted the following rule as articulated in State v. Canby, 252 S.E.2d 164, 167 (W. Va. 1979): “ ‘The test of exigent circumstances for the making of an arrest for a felony without a warrant . . . is whether, under the totality of the circumstances, the police had reasonable grounds to believe that if an immediate arrest were not made, the accused would be able to destroy evidence, flee or otherwise avoid capture, or might, during the time necessary to procure a warrant, endanger the safety or property of others. This is an objective test; its preeminent criterion is what a reasonable, well-trained police officer would believe, not what the arresting officer actually did believe.’ (Footnote omitted, emphasis in original.)”

The defendant contends that on the evening of October 24,1986, the Fairfield police officers were not faced with circumstances that could be regarded as sufficiently exigent to justify the warrantless entry into his home. We disagree.

The police aeted swiftly in an attempt to reach the perpetrators of the felony that they had witnessed in order to effect an arrest and secure evidence before the perpetrators and the evidence disappeared. The fact that their basic concerns were realized, namely, that by the time they reached the bedroom, all but one of the females were gone, as was the cocaine they had seen, does not invalidate the officers’ reasonable belief in the need to act quickly. Indeed, the opposite is true. The defendant’s contention that the warrantless entry was futile because there was no reasonable likelihood that any cocaine would remain by the time the police arrived at the bedroom is specious and undermines the rationale of the exigent circumstances doctrine.

Applying the so-called Canby rule to the facts of this case, we conclude that under the totality of the circumstances the police had reasonable grounds to believe that if an immediate arrest were not made, the evidence would have been completely consumed and the perpetrators would have left the premises.

We further note that the police action was not a fishing expedition, a pretextual “police created exigency” as condemned in State v. Canby, supra, 167, or a “planned arrest” which has been repeatedly proscribed by the United States Supreme Court. See Steagald v. United States, supra; Payton v. New York, supra; 2 W. LaFave, Search and Seizure (2d Ed., 1987), 6.1 (f).

Because exigent circumstances were present and thus the warrantless entry was valid, the police were lawfully inside the residence when they arrested the defendant after viewing the drug transaction in the bedroom. Therefore, the defendant’s contention that the invalidity of the original entry required the trial court to suppress the evidence obtained from the defendant as a result of this entry is without merit.

The defendant also contends that the warrantless entry was nonconsensual and therefore illegal. Because our decision on the issue of exigent circumstances is dispositive of the appeal, we need not reach this claim. See Payne v. Robinson, 10 Conn. App. 395, 404, 523 A.2d 917 (1987), aff'd, 207 Conn. 565, 541 A.2d 504, cert. denied, U.S. , 109 S. Ct. 242, 102 L. Ed. 2d 230 (1988).

There is no error.

In this opinion the other judges concurred.

       General Statutes § 54-94a provides: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.”

       The fourth amendment to the United States constitution provides in pertinent part: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . ” This constitutional right is made applicable to the states through the fourteenth amendment to the United States constitution. Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961).

       Article first, § 7, of the Connecticut constitution provides in pertinent part: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures . ... ”

       The defendant claims violations of both the federal and state constitutions, although he states that each provides the same protections. In fact, however, the reasonableness standard applied to warrantless searches and seizures may be stricter under the state constitution than the standard for searches and seizures applied under the federal constitution. See Cooper v. California, 386 U.S. 58, 62, 87 S. Ct. 788, 17 L. Ed. 2d 730 (1967); State v. Dukes, 209 Conn. 98, 104-105, 547 A.2d 10 (1988) (extent of search incident to custodial arrest for motor vehicle offense); State v. Kimbro, 197 Conn. 219, 235, 496 A.2d 498 (1985) (existence of probable cause for search incident to warrantless arrest). See also State v. Brown, 14 Conn. App. 605, 628 n.8, 543 A.2d 750, cert. denied, 208 Conn. 816, 546 A.2d 283 (1988). Because the defendant offers no separate analysis of whether a stricter state search and seizure standard should apply to the facts of this case, we decline to undertake such analysis. See State v. Camerone, 8 Conn. App. 317, 321 n.1, 513 A.2d 718 (1986).


text:
    Steven C. Bombero, Jr., et al. v. Planning and Zoning Commission of the Town of Monroe et al.
    (6160)
    Spallone, Stoughton and Norcott, Js.
    Argued October 20
    decision released December 6, 1988

      Stephen W. Studer, with whom, on the brief, were Robert L. Berchem, Warren N. Chapman and Richard J. Buturla, for the appellant (defendant Baker-Firestone, Inc.).

      Dennis J. Delaney, for the appellant (named defendant).

      Bruce Levin, with whom, on the brief, was Serge G. Mihaly, for the appellees (plaintiffs).
   Norcott, J.

The defendants, Baker-Firestone, Inc., and the planning and zoning commission of the town of Monroe bring this appeal, upon certification by this court, from a decision of the trial court sustaining an appeal filed by the plaintiffs on October 23,1985. The plaintiffs had appealed a decision of the defendant commission approving a zone change and a special exception permit requested by the defendant Baker-Firestone.

On appeal to this court, the defendants contend that the trial court erred (1) in not dismissing the appeal or setting aside the judgment for lack of subject matter jurisdiction, and (2) in holding that the commission did not have jurisdiction to act on Baker-Firestone’s requests. We find no error.

The defendants’ first claim is that the plaintiffs’ failure to name the Monroe town clerk in the citation, as required by General Statutes § 8-8 (b), as interpreted in Simko v. Zoning Board of Appeals, 205 Conn. 413, 533 A.2d 879 (1987), and Simko v. Zoning Board of Appeals, 206 Conn. 374, 538 A.2d 202 (1988) (en banc), constituted a defect that deprived the trial court of subject matter jurisdiction over the appeal.

In their citation, the plaintiffs named the Monroe planning and zoning commission as a party to the appeal and directed the sheriff to serve the chairman or clerk of that commission. The plaintiffs did not name the Monroe town clerk as a party or direct the sheriff to serve her. The return of service indicates, however, that the sheriff did, in fact, serve the town clerk. The commission moved to dismiss the appeal for lack of subject matter jurisdiction on February 5,1987. When the merits of the appeal were decided on February 27, 1987, without a decision on this motion, Baker-Firestone filed a motion to set aside the judgment and dismiss the appeal for lack of subject matter jurisdiction. In a memorandum of decision of April 23, 1987, the trial court held that the actual notification of the clerk by the sheriff’s service was sufficient for compliance with the requirements of § 8-8 (b).

Our determination of this issue is controlled by the recent Supreme Court decision in Capalbo v. Planning & Zoning Board of Appeals, 208 Conn. 480, 547 A.2d 528 (1988). On facts indistinguishable from those in this case, the court in Capalbo determined that although a failure to name the town clerk as a party or for the purpose of directing service by the sheriff subjected the case to dismissal under the Simko decisions, the legislature, in enacting Public Acts 1988, No. 88-79, validated such defective appeals. Capalbo v. Planning & Zoning Board of Appeals, supra, 489. This legislative validation applies here, and the appeal was therefore properly before the court.

The second issue raised in this appeal is whether the trial court erred in holding that the commission lacked jurisdiction to act on Baker-Firestone's requests because a copy of the proposed boundary change was not filed in the office of the town clerk as required by General Statutes § 8-3 (a).

“Compliance with the statutory procedure [of § 8-3 (a) is] a prerequisite to any valid and effective change in zonal boundaries.” State ex rel. Capurso v. Flis, 144 Conn. 473, 481, 133 A.2d 901 (1957), citing Couch v. Zoning Commission, 141 Conn. 349, 356, 106 A.2d 173 (1954), and Hutchison v. Board of Zoning Appeals, 138 Conn. 247, 250, 83 A.2d 201 (1951). In Scovil v. Planning & Zoning Commission, 155 Conn. 12, 14-15, 230 A.2d 31 (1967), the Supreme Court stated that if the evidence supported the trial court’s conclusion that neither a copy of the proposed zone change nor a zoning map was filed in the town clerk’s office prior to the public hearing, then “the defect was jurisdictional and the zoning regulations purportedly adopted were invalid.”

The purpose of these procedural requirements of § 8-3 (a) is “ ‘fairly and sufficiently to apprise those who may be affected by the proposed action of the nature and character of the proposed action so as to enable them to prepare intelligently for the hearing.’ ” Kleinsmith v. Planning & Zoning Commission, 157 Conn. 303, 310, 254 A.2d 486 (1968), quoting Passero v. Zoning Commission, 155 Conn. 511, 514, 235 A.2d 660, cert. denied, 390 U.S. 1004, 88 S. Ct. 1248, 20 L. Ed. 2d 104 (1967); Lebanon Planning & Zoning Commission v. Gaal, 9 Conn. App. 538, 544-45, 520 A.2d 246, cert. denied, 203 Conn. 803, 522 A.2d 294 (1987).

There is no dispute in this case that neither a map nor any other boundary designation was filed with the town clerk. The defendants contend, however, that (1) the property description in the published notice of the hearing, and (2) the statement in the notice that more detailed information was available in the planning and zoning office, were sufficient to allow the public to prepare adequately for the hearing. This argument is without merit. The fact that the published notice gave an address and the approximate acreage involved and that maps were on file in another town office does not constitute compliance with the statute. The trial court was correct in holding that, because the requirements of § 8-3 (a) were not met by the proper filing in the office of the town clerk, the commission acted without jurisdiction and its approval of the zone change and the special permit exception was invalid.

Because we find that the trial court had jurisdiction in this matter and affirm that court’s determination that the commission was without jurisdiction to act on Baker-Firestone’s requests, we need not reach the plaintiffs’ alternate ground for affirming the decision of the trial court.

There is no error.

In this opinion the other judges concurred.

       Originally, the defendants petitioned separately for certification to appeal. This court granted both petitions, but later granted the commission’s motion to consolidate its appeal with that of Baker-Firestone and permitted the commission to adopt Baker-Firestone’s brief.

       The trial court dismissed the appeal of the plaintiffs David and Kathryn Richter and Anthony and Deborah Tadduni for failure to establish aggrievement under General Statutes § 8-8 (a). This dismissal is not part of this appeal which is defended only by the plaintiffs Steven and Christine Bombero.

       General Statutes § 8-8 (b) provides in part: “Notice of such appeal shall be given by leaving a true and attested copy thereof with, or at the usual place of abode of, the chairman or clerk of said board, and by serving a true and attested copy upon the clerk of the municipality.”

       We note that the court’s memorandum of decision preceded the decisions in Simko.

       The defendants request that we reexamine the holding of Capalbo. As we have stated previously, however, this court will not reexamine or reevaluate Supreme Court precedent. State v. Thurman, 10 Conn. App. 302, 309 n.5, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987); O’Connor v. O’Connor, 4 Conn. App. 19, 20, 492 A.2d 207 (1985), rev’d, 201 Conn. 632, 519 A.2d 13 (1986).

       Public Acts 1988, No. 88-79 supplemented General Statutes § 8-8 by adding, inter alia: “Sec. 3. (a) Any appeal of a decision of a zoning commission, planning commission, planning and zoning commission or zoning board of appeals taken on or after October 1,1985 and prior to December 1,1987 in which a final judgment has not been entered prior to the effective date of this act, otherwise valid except that the party taking such appeal failed to name the clerk of the municipality as a party to the appeal in the appeal citation, is validated.”

       General Statutes § 8-3 (a) provides in pertinent part: “Such zoning commission shall provide for the manner in which regulations under section 8-2 and the boundaries of zoning districts shall be respectively established or changed. No such regulation or boundary shall become effective or be established or changed until after a public hearing in relation thereto . . . at which parties in interest and citizens shall have an opportunity to be heard. Notice of the time and place of such hearing shall be published in the form of a legal advertisement appearing in a newspaper having a substantial circulation in such municipality at least twice at intervals of not less than two days . . . before such hearing, and a copy of such proposed

        regulation or boundary shall be filed in the office of the town, city or borough clerk ... for public inspection at least ten days before such hearing, and may be published in full in such paper.” (Emphasis added.)

       The pertinent portion of the published notice stated:
      “ZONE CHANGE/SPECIAL EXCEPTION PERMIT 645 Main Street 1CT.RTE.251
      Petition of Baker-Firestone, Inc., for a change of zone from DB-1 (Design Business Dist. 1), RC (Residential & Farming Dist. C) and RD (Residential and Farming Dist. D) to DR (Design Residence District) for property at 645 Main Street comprising 100 acres, more or less. Also, a special exception permit to construct 246 condominium residential dwelling units.
      For more detailed information related to the application, reference should be made to the files of the Planning and Zoning Commission.”


text:
    State of Connecticut v. Albert Kim
    (6658)
    Borden, O’Connell and Foti, Js.
    Argued October 12
    decision released December 6, 1988

      Brian M. O’Connell, with whom, on the brief, was Steven F. Meo, for the appellant (defendant).

      Leon F. Dalbec, Jr., deputy assistant state’s attorney, with whom, on the brief, was Samuel Sferrazza, assistant state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from the judgment of conviction, after a trial to the court, of disorderly conduct in violation of General Statutes § 5Sa-182. The sole issue on appeal is whether the trial court erred in overruling the defendant’s relevancy objection and admitting evidence of a witness’ arrest for an unrelated incident. We find no error.

Facts dispositive of this appeal show that the defendant was on trial for disorderly conduct arising out of his activities on the picket line at a strike. The court found that the defendant had spit into the face of a plant supervisor who was waiting in a car for an opening in the picket line so that he could enter the plant.

On cross-examination, a defense witness admitted that he had been arrested the morning of trial for spitting at someone while on picket duty at another plant of the same employer.

The full transcript of the objection and ensuing colloquy is as follows:

“[State]: You got arrested for what?
“[Defense counsel]: Objection, Your Honor, relevancy.
“[State]: Your Honor, it’s to show bias on the part of this witness in this testimony, that he had a reason why he would come to court and not tell the truth if he felt it would exonerate someone in the same position and also might cause consternation of people in the management. That’s why I asked that question. I think it shows bias on his part.
“The Court: The same incident, the same kind of activity. It’s not an unrelated activity. If he shows that he himself was in confrontation with the authorities, doesn’t that bear on his veracity?
“[State]: He’s not a defendant, so the rule is slightly different.
“[Defense counsel]: Very well, Your Honor.”

It is elementary that to appeal from the ruling of a trial court there must first be a ruling. The transcript discloses that although there was a brief colloquy between the court and the state’s attorney, the court never ruled on the objection nor did the defendant take an exception. A reasonable interpretation of the transcript is that, after hearing the remarks of the state’s attorney and the court, defense counsel conceded that the evidence was admissible and withdrew his objection. See State v. Rutan, 194 Conn. 438, 446, 479 A.2d 1209 (1984).

Our rules of practice require trial counsel to take a timely exception to a ruling on the admission of evidence in order to make it a ground of appeal. Practice Book § 288; State v. Jackson, 3 Conn. App. 132, 134-35, 485 A.2d 934 (1985). The purpose of this requirement is to alert the trial court to a possible error while there is still time to take action to correct it. State v. Horton, 8 Conn. App. 376, 379, 513 A.2d 168, cert. denied, 201 Conn. 813, 517 A.2d 631 (1986). Here, an exception would have advised the court of defense counsel’s assumption that it had ruled on his objection and permitted it to remedy the situation and create a clear record for review. The absence of such exception supports our conclusion that the trial court did not make a ruling. To find otherwise would amount to a trial by ambuscade. See State v. Wilson, 178 Conn. 427, 436, 423 A.2d 72 (1979).

Even if we were to assume that the court did rule on the defendant’s objection, the lack of an exception precludes our review. Furthermore, it cannot be raised under the constitutional exception of State v. Evans, 165 Conn. 61, 67, 327 A.2d 576 (1973), because evidentiary rulings of relevancy are matters for the trial court’s discretion, not issues of constitutional dimension. State v. Brown, 199 Conn. 14, 24, 505 A.2d 690 (1986). Nor do we find that it reaches the magnitude required for review under the plain error doctrine. Nisbet v. Olmeda, 15 Conn. App. 6, 14-15, 544 A.2d 642 (1988).

There is no error.

In this opinion the other judges concurred.

       Practice Book § 288: “objections to evidence. Whenever an objection to the admission of evidence is made, counsel shall state the grounds upon which it is claimed or upon which objection is made, succinctly and in such form as he desires it to go upon the record, before any discussion or argument is had. Argument upon such objection shall not be made by either party unless the court requests it and, if made, must be brief and to the point. An exception to the ruling must he taken in order to make it a ground of appeal.” (Emphasis added.)