author: Dupont, C. J.

text:
    State of Connecticut v. Kevin Gallman
    (6154)
    Dupont, C. J., Borden and Spallone, Js.
    Argued June 8
    decision released September 27, 1988

      Stephen V. Moran, deputy assistant public defender, for the appellant (defendant).

      Jay Huntington, deputy assistant state’s attorney, with whom, on the brief, was Elpedio N. Vitale, deputy assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of larceny in the second degree in violation of General Statutes § 53a-123. The defendant claims that the trial court, during its jury charge, commented on the testimony of the victim but made no mention of the defendant’s testimony, thereby highlighting the victim’s testimony and resulting in the possibility that the jury was misled. We find no reversible error.

The jury could reasonably have found certain relevant facts. On December 24, 1986, the victim was a patron at Yorkside Pizza in New Haven. He was introduced to the defendant by the defendant’s cousin, “Lenny,” an employee at Yorkside Pizza with whom the victim was acquainted. The victim and the defendant left the restaurant and walked several blocks together. They stopped at a gas station so that the victim could buy cigarettes which he paid for from $125 in cash that he had in his front pocket. Later, after continuing their walk, the defendant struck a blow to the victim’s face, knocking off his glasses, and then choked the victim in a headlock and demanded his money. The victim surrendered his money to the defendant.

The victim immediately called the police. A police officer responded to the call and the victim related the incident to him and described the perpetrator. Later that night, the defendant was identified by the victim and he was taken into custody. At the time the defendant was carrying $125. At trial, the defendant and the victim both testified. The defendant’s testimony consisted of the claim that he and the victim had been involved in a drug transaction on the night of the incident, that the transaction had taken place inside Yorkside Pizza and in a nearby alley and that following the transaction the defendant did not see the victim again until the defendant’s arrest.

The sole issue on appeal is whether the trial court’s comments on the evidence during the jury charge resulted in a possibility that the jury was misled. Specifically, the defendant contends that by summarizing the victim’s testimony while failing to discuss the defendant’s contrary, exculpatory testimony, the trial court unfairly directed the jury’s attention to the testimony of the victim, while “sinking out of view” the testimony of the defendant.

“The trial court, in its instructions to the jury, may refer to the evidence presented, in its discretion, as long as it does not misstate or unfairly summarize the evidence and thereby invade the province of the jury as the trier of fact.” State v. Mackor, 11 Conn. App. 316, 326, 527 A.2d 710 (1987). “The ultimate test of the charge is whether, read in its entirety, it fairly presents the case to the jury so that no injustice was done.” State v. Storlazzi, 191 Conn. 453, 466, 464 A.2d 829 (1983).

In this case, the trial court discussed portions of the victim’s testimony as they related to the elements of the crimes of larceny in the second degree and robbery in the third degree as those crimes are defined by our general statutes. The court did not comment specifically on the substance of the defendant’s testimony, but indicated that the defendant had testified in his own behalf and that his testimony was to be weighed by the same principles as that of any other witness.

It is the duty of the trial court to refer to testimony in so far as it may be necessary to assist the jury to a clear understanding of the relationship of the testimony to the material facts. State v. Nims, 8 Conn. App. 631, 641, 513 A.2d 1280 (1986). “The charge must go beyond a bare statement of accurate legal principles to the extent of indicating to the jury the application of those principles to the facts claimed to have been proven.” State v. Sumner, 178 Conn. 163, 170-71, 422 A.2d 299 (1979). In doing so, however, a court may not reference only the state’s evidence to the exclusion of that presented by the defendant. “ ‘Instructions should not be so drawn as to direct the attention of the jury too prominently to the facts in the testimony on one side of the case, while sinking out of view . . . portions of the testimony on the other side which deserve equal attention. If the jury is misled thereby, judgment will be reversed.’ ” State v. Rome, 64 Conn. 329, 339, 30 A. 57 (1894), quoting Thompson on Trials, § 2330; State v. Brown, 9 Conn. App. 313, 318, 518 A.2d 670 (1986) , cert. denied, 202 Conn. 804, 520 A.2d 1037 (1987) .

In this case, the trial court summarized the victim’s testimony during the portion of the charge which explained the elements of the crimes with which the defendant was charged. The court, however, failed entirely to mention the exculpatory testimony of the defendant. Accordingly, we conclude that the trial court’s jury charge improperly sank the defendant’s testimony “out of view.” This is not a case where the trial court simply devoted more time to a review of the state’s evidence than of the defendant’s evidence. See State v. Roy, 173 Conn. 35, 41-42, 376 A.2d 391 (1977); State v. Nims, supra, 641. The substance of the defendant's testimony was entirely ignored by the trial court in its charge to the jury, while a full summary of the state’s evidence was provided.

The trial court’s error, however, was harmless unless it was so serious that it was likely to have affected the outcome of the trial. State v. Gonzalez, 197 Conn. 677, 681, 500 A.2d 1330 (1985). We conclude that the error was harmless since, under the circumstances of this case, it is unlikely that the jury was misled by the court’s instructions. First, the jury acquitted the defendant of the charge of robbery in the third degree. Thus, it is apparent that the jury considered the defendant’s testimony. Secondly, the jury instructions were delivered on the same day as the defendant’s testimony, and it is unlikely that the court’s instructions entirely overshadowed the defendant’s testimony. In addition, the jury was repeatedly instructed that it was its duty alone to determine the facts, that the court's references to the facts were being used to illustrate the relevant principles of law, and that it was the jury’s recollection of the evidence, rather than the court’s, that was controlling. Under these circumstances, we conclude that the trial court did not commit reversible error.

There is no error.

In this opinion the other judges concurred.

       The defendant was charged with larceny in the second degree in violation of General Statutes § 53a-123 and robbery in the third degree in violation of General Statutes § 53a-136. The jury found him guilty of the second degree larceny charge and not guilty of the third degree robbery charge.


source: Caselaw Access Project

author: Bieluch, J.

license: Public Domain

text:
    Harry Kreidler v. Bic Pen Corporation et al. Walter Birdsell v. Bic Pen Corporation et al.
    (5902)
    (5918)
    Bieluch, Stoughton and Foti, Js.
    Argued March 17
    decision released September 27, 1988

      Richard T. Stabnick, with whom, on the brief, was Anne M. Kelley, for the appellants (defendants).

      L. Morris Glucksman, with whom was Mark R. Feller, for the appellees (plaintiffs).
   Bieluch, J.

These consolidated appeals, which involve identical issues, were taken to this court by the named defendant, the plaintiffs’ employer, and by its workers’ compensation insurer, from the combined decision of the compensation review division reversing the workers’ compensation commissioner’s dismissal of the plaintiffs’ claims for wage benefits. The defendants claim that the review division erred in its finding and award determining that payment to the plaintiffs of “full wages for the entire day of the [compensable] injury” (emphasis added) under General Statutes § 31-295 (b) “included remuneration for eight hours at regular pay and four hours at time and a half,” in light of the collective bargaining agreement which addressed the issue and which was not superseded by the provisions of General Statutes § 31-313. We find error in part.

The facts are undisputed. On June 15, 1981, the plaintiff Harry Kreidler was employed by the defendant Bic Pen Corporation and sustained an injury arising out of and in the course of his employment. The plaintiff Walter Birdsell, a fellow employee, suffered a compensable injury on April 23, 1981. The defendant Aetna Life and Casualty Company was the employer’s workers’ compensation insurer at the time of those injuries. Each plaintiff was scheduled to work four overtime hours on the day of his injury, and each was injured during the normal shift hours. As scheduled by the defendant employer, Kreidler had worked four hours of overtime before starting his normal shift. Birdsell had worked two hours of overtime before his normal shift, but was expected to put in two additional hours after the completion of his normal shift.

Claiming that they were “entitled to full wages for the entire day of the injury” under § 31-295 (b), each plaintiff claimed payment at time and one-half for the “overtime hours” worked before his occupational injury, pursuant to the terms of the collective bargaining agreement then in effect, in addition to full wages for his normal shift of eight hours at regular pay. Specifically, Kreidler sought four hours at the overtime rate and Birdsell sought two hours at this rate. The defendants refused to pay the plaintiffs for the claimed overtime hours in excess of wages for the normal workday of eight hours.

The plaintiffs subsequently pursued their demands under the workers’ compensation law. The two claims were heard together before the workers’ compensation commissioner on September 28, 1982. Finding that the claimants and the respondents had relied on different parts of the collective bargaining agreement to sustain their respective positions, the commissioner dismissed the claims, holding that “workers’ compensation commissioners are not empowered to construe union-management contracts.”

The plaintiffs thereafter appealed from the dismissal of their claims to the compensation review division, claiming that “[t]he commissioner erred in failing to review the union management contract and not finding the law to supersede any contract between the parties.” The review division reversed the decision of the commissioner, concluding that, pursuant to § 31-295 (b), full wages for the day of injury in each case “included remuneration for eight hours at regular pay and four hours at time and a half.” The review division awarded Birdsell two hours of overtime pay for the time that he did not work, which he did not include in his initial compensation claim before the commissioner for payment of “full wages for the entire day of the injury.”

The sole issue presented by the defendants on appeal is whether the compensation review division had the authority to render a decision in light of the collective bargaining agreement which addressed the issue, and which they claimed was not superseded by the provisions of § 31-313. The issue presented here by both plaintiffs is whether they are to be paid for the “entire day,” consisting of the scheduled twelve hours of work on the day of their injuries, including four hours at the overtime rate pursuant to § 31-295 (b). Even though Birdsell initially sought wages for only the two hours of overtime which he had worked, he now seeks payment for the four hours of overtime which the compensation review division awarded him.

The defendants maintain that the plaintiffs’ statutory right in issue here is controlled by the collective bargaining agreement entered into between the defendant Bic Pen Corporation and Local No. 134, United Rubber, Cork, Linoleum and Plastic Workers of America, in December, 1978. The relevant terms of this agreement are: “Article IV. Hours of Work (a) Forty hours of work per week will constitute a normal work week, (b) A normal work week will consist of five days from Monday to Friday, inclusive, starting at 7:00 AM — 1st Shift; 3:00 PM-2nd Shift; 11:00 PM-3rd Shift. . . . (g) All work performed in excess of eight hours in a single day will be paid for at time and one-half. . . . Article V. Wages . . . (b) An employee will be paid average earnings . . . for the remainder of an eight hour day when injured and unable to continue working.” (Emphasis added.)

The defendants contend that the claims of the plaintiffs are controlled exclusively by the provision in article V (b) of the collective bargaining agreement that “[a]n employee will be paid average earnings ... for the remainder of an eight hour day when injured and unable to continue working.” (Emphasis added.) They argue that “[t]he commissioner and compensation review division are creatures of the legislature cloaked with limited administrative law powers, a part of the executive branch of government. They are not a court and have no article fifth [constitution of Connecticut] powers to decide questions of contract law and interpret union-management agreements.” Although mentioned in their statement of issues as supporting their claim on appeal, § 31-313 is not relied upon in the defendants’ brief or argument, and properly so. Section 31-313 has no relevance to the issue before us. By its title and terms it is limited to “Transfer to suitable work during period of treatment or rehabilitation or because of physical incapacity.” By the provisions of subsection (b) of that statute, the commissioner’s authority to make such transfers “shall not conflict with any provision of a collective bargaining agreement between such employer and a labor organization. ” (Emphasis added.) The defendants’ reliance on this statute, even though only in their statement of issues, is misplaced.

As contended by the plaintiffs, the language of § 31-295 (b) is controlling. Our statutes cannot be preempted by a collective bargaining agreement or any contract between parties. There is a presumption that parties contract in the light of existing statutes. State College AAUP v. State Board of Labor Relations, 197 Conn. 91, 98, 495 A.2d 1069 (1985). Statutes existing at the time a contract is made become a part of it and must be read into it just as if an express provision to that effect were inserted therein, except where the contract discloses a contrary intention. Id. Therefore, the terms of statutes must necessarily prevail over inconsistent provisions in collective bargaining agreements. Id., 99.

“ ‘Wages’ means compensation for labor or services rendered by an employee, whether the amount is determined on a time, task, piece, commission or other basis of calculation.” General Statutes § 31-71a (3). “The ‘regular rate’ at which an employee is employed shall be deemed to include all remuneration for employment paid to, or on behalf of, the employee, but shall not be deemed to include . . . (E) extra compensation provided by a premium rate paid for certain hours worked by the employee in any day or workweek because such hours are worked in excess of eight in a day or in excess of the maximum workweek applicable to such employees under section 31-76c, or in excess of the employee’s normal working hours or regular working hours, as the case may be . . . (G) extra compensation provided by a premium rate paid to the employee, in pursuance of an applicable contract or collective-bargaining agreement, for work outside of the hours established in good faith by the contract or agreement as the basic, normal or regular workday, not exceeding the maximum workweek applicable to such employee under section 31-76c, where such premium rate is not less than one and one-half times the rate established in good faith by the contract or agreement for like work performed during such workday or workweek.” (Emphasis added.) General Statutes § 31-76b (1). “ ‘Hours worked’ include all time during which an employee is required by the employer to be on the employer’s premises or to be on duty, or to be at the prescribed work place, and all time during which an employee is employed or permitted to work, whether or not required to do so . . . . ” (Emphasis added.) General Statutes § 31-76b (2) (A).

The plaintiffs were correct in their original compensation claims. Under § 31-295 (b) of the Workers’ Compensation Act, Kreidler is “entitled to full wages for the entire day of the injury” consisting of payment for the four hours of overtime he had already worked, as well as for the following eight hours of his regular shift, during which his injury occurred. Pursuant to the provisions of General Statutes § 31-76b (1), the wages for Kreidler’s overtime hours already worked are to be paid at a rate of one and one-half times the regular rate. Birdsell’s “full wages for the entire day of the injury” consist of payment for the two hours of overtime he had already worked, as well as for the following eight hours of his normal shift, during which his injury occurred. Pursuant to § 31-76b (1), the wages for Bird-sell’s overtime hours already worked are to be paid at a rate of one and one-half times the regular rate. The compensation review division erred in allowing Bird-sell wages for the additional two hours of overtime for which he was scheduled the day of his injury, but did not work. There is no further error in its findings and awards.

In Appeal No. 5902, there is no error. In Appeal No. 5918, there is error in part, the finding and award of the compensation review division is set aside and the case is remanded with direction to adjust Birdsell’s award by deducting therefrom two hours of overtime pay in accordance with this opinion.

In this opinion the other judges concurred.

       General Statutes § 31-295 (b) of the Workers’ Compensation Act provides: “The injured employee shall be entitled to full wages for the entire day of the injury and said day shall not be counted as a day of incapacity.”

       General Statutes (Rev. to 1981) § 31-313 (b) provides: “The commissioner shall, after making due inquiry, upon the request of an employee claiming to be unable to perform his customary or most recent work because of physical incapacity resulting from an injury or disease, require that the injured worker be removed from work detrimental to his health or which cannot be performed by a person so disabled and be assigned to other suitable full-time work in the employer’s establishment, if available; provided the exercise of this authority shall not conflict with any provision of a collective bargaining agreement between such employer and a labor organization which is the collective bargaining representative of the unit of which the injured worker is a part. ” (Emphasis added.)

       At the commencement of the compensation hearing held on September 28, 1982, before the commissioner, the plaintiffs’ counsel defined their respective claims:
      “In the case of Birdsell, he worked two hours before his regular shift began.
      “In the case of Mr. Kreidler, he worked four hours before his shift began. Therefore, we are contending that Mr. Birdsell is entitled to ten hours under the statutes for the entire day’s pay; and Mr. Kreidler be paid for twelve hours his entire day of pay. Now, both which will require the employer to pay some over-time.
      “In Mr. Kreidler’s case four hours of over-time; and Mr. Birdsell’s case two hours of over-time.”

       The compensation review division reached its conclusion for these reasons: (1) “The ‘full wages’ provision of Sec. 31-295 (b) dates back at least sixty years to Sec. 8 of the 1917 statute”; (2) neither the 1938 United States Pair Labor Standards Act nor the state minimum wage law had yet been enacted; (3) “full wages for the entire day of the injury,” therefore, did not mean wages for an eight hour day as recited in the collective bargaining agreement; (4) the employees and the employer had agreed, and so scheduled, that the day of injury was to be a twelve hour work day and that the overtime hours were to be paid at time and one-half; (5) that a rate of one and one-half times the regular rate of pay for overtime hours is a matter of now universally recognized federal and state laws outside the labor contract; and consequently, (6) “[t]here was no need for the commissioner to apply the contract. All he had to do was accept the agreement that [the day of injury] was to be a twelve hour day and the wage and hour law which prescribes that overtime hours are to be remunerated at time and one-half.”


author: Spallone, J.

text:
    Larry Visco v. Clifford Cody et al.
    (6215)
    Dupont, C. J., Borden and Spallone, Js.
    Argued June 10
    decision released September 27, 1988

      David A. Pels, with whom, on the brief, was Sheryl J. Sha’afi, for the appellants (defendants).

      Clifton E. Thompson, for the appellee (plaintiff).
   Spallone, J.

The defendants appeal from the judgment rendered in favor of the plaintiff in this summary process action. The sole issue presented is one of first impression: Whether the trial court erred in finding that the defendants’ good faith requests for repairs did not successfully invoke the provisions of General Statutes § 47a-20 because the requested repairs were minor in nature. We find no error.

The relevant facts are not in dispute. In October, 1976, the plaintiff purchased an apartment building located at 149 Barbour Street in Hartford. The defendants, Clifford Cody and Elsie Cody, were tenants in the building at that time. The plaintiff and the defendants entered into an oral agreement for a month-to-month tenancy by the defendants, to begin on November 1, 1986. Clifford Cody testified that he first asked the plaintiff to perform specific repairs on the apartment in October of 1986, when the plaintiff first assumed ownership, and requested additional repairs at various times thereafter.

On April 14, 1987, the plaintiff caused a notice to quit, based on lapse of time, to be served on the defendants, advising them to quit possession of the premises on or before April 30, 1987. When the defendants did not vacate the apartment, the plaintiff, on May 12, 1987, initiated this summary process action. The defendants answered on June 4, 1987, raising a special defense, pursuant to General Statutes § 47a-20, that the summary process action was commenced within six months of the defendants’ requests for repairs, and therefore, the action was barred.

The evidence at trial, adduced through the testimony of both the plaintiff and Clifford Cody, was that the defendants had made several requests for work to be done in their apartment and that the plaintiff had responded to these requests. The plaintiff testified that, at the defendants’ request, he bled the bathroom radiator, tightened the bedroom windows and replaced the sash cords, weatherstripped the front door to eliminate drafts, fixed some loose tiles on the bathroom floor and provided paint to the defendants so that they could repaint the kitchen. On the basis of this evidence, the trial court determined that the protection afforded by General Statutes § 47a-20 had not been “triggered,” because the requested repairs did not “relate to defects which materially affect health and safety.” From this judgment, the defendants have appealed.

The defendants claim that the trial court erred in requiring them to prove more than a good faith request for repairs. The interpretation of § 47a-20 propounded by the defendants is that any good faith request for a repair, no matter how minor, invokes the provisions of the protective statute, effectively insulating the tenant from eviction for the next six months. We cannot agree with such a broad reading of this particular provision.

Although we are cognizant of the principle that “[c]ourts must interpret statutes as they are written; Muha v. United Oil Co., 180 Conn. 720, 730, 433 A.2d 1009 (1980)”; Lucarelli v. State, 16 Conn. App. 65, 70, 546 A.2d 940 (1988); we are also bound by our duty to “ ‘avoid a consequence which fails to attain a rational and sensible result which bears most directly on the object which the legislature sought to obtain.’ ” Dukes v. Durante, 192 Conn. 207, 214, 471 A.2d 1368 (1984), quoting La Providenza v. State Employees Retirement Commission, 178 Conn. 23, 29, 420 A.2d 905 (1979). We do not believe that a literal definition of the word “repairs,” as urged by the defendants, yields a “rational and sensible result” when viewed in context with the other statutory provisions of our landlord and tenant law embodied in title 47a of the General Statutes.

General Statutes § 47a-7 sets forth the responsibilities of a landlord to his tenants. As well as complying with all applicable building and housing codes of the state or any political subdivision thereof, a landlord is mandated to “make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition.” General Statutes § 47a-7 (a) (2). The remedies available to a tenant in the event of the landlord’s dereliction of these statutory duties are various: the tenant may withhold his rental payment, § 47a-4a; the tenant may initiate an action to compel the landlord to perform his legal duties, § 47a-14h; or the tenant may interpose the landlord’s noncompliance as a defense in a summary process action, §§ 47a-20 and 47a-33.

With regard to the first two forms of relief, the tenant’s ability to recover is not automatic once he has alleged a breach of the landlord’s statutory duty. For example, before a tenant can initiate an action pursuant to § 47a-14h, he must allege that within the previous twenty-one days he lodged a complaint concerning the condition of the premises with a municipal agency. General Statutes § 47a-14h (b) (5); see generally Dugan v. Milledge, 196 Conn. 591, 494 A.2d 1203 (1985). Similarly, for a tenant to make a successful claim that he had the right to withhold payment of rent, he must show that the landlord’s failure to comply with § 47a-7 (a) “materially affects his safety”; Tucker v. Lopez, 38 Conn. Sup. 67, 69, 457 A.2d 666 (1982); or has rendered the premises “uninhabitable.” Steinegger v. Rosario, 35 Conn. Sup. 151, 156, 402 A.2d 1 (1979). Furthermore, to establish uninhabitability, the tenant needs to do more than assert a unilateral, self-serving statement that the premises are untenantable. Evergreen Corporation v. Brown, 35 Conn. Sup. 549, 552, 396 A.2d 146 (1978) (suggesting that a tenant “utilize the broad range of municipal boards, agencies, and commissions” to remedy defects).

In light of the fact that “the sanctions in these sections are not triggered until and unless evidence is adduced at trial establishing that there is a substantial violation or series of violations of housing and health codes creating a material risk or hazard to the occupant,” P. Marzinotto, Connecticut Summary Process Manual, p. 118, citing Evergreen Corporation v. Brown, supra; Arroyo v. Fernandez, Superior Court, judicial district of Waterbury, Housing Session, Docket No. SPWA-00076 (December 9, 1982); the defendant’s assertion that a good faith request for any repair invokes the application of § 47a-20 is overly simplistic.

If we were to adopt the defendants’ argument, we would have to acknowledge a greater duty to make repairs as set forth in § 47a-20 than that which is specified in § 47a-7 (a). The latter obliges a landlord to maintain his leased premises in a fit and habitable condition; the former, under the defendants’ construction, would also oblige the landlord to make any cosmetic or aesthetic repairs, solely at the tenant’s good faith behest. This is not to say that a tenant does not have the right to request aesthetic repairs; rather, the tenant cannot avoid eviction, using § 47a-20 as a shield, on the grounds that he requested such repairs in good faith. Any other result would effectively prevent a landlord from recovering possession of his property based on a possible defect in the leased premises which he had no statutory duty to repair, and would, therefore, be anomalous indeed. We must not look at the single word “repairs” in isolation, to the exclusion of the remainder of that provision or to the exclusion of interrelated legislation. “What appears to be clear statutory language should not be read to arrive at an ‘ambiguous or unreasonable result’ or to ‘defeat a legislative intent which becomes evident when the statute is read in the light of its history and purpose.’ State v. Delafose, [185 Conn. 517, 522, 441 A.2d 158 (1981)]. Statutes should be considered as a whole, reconciling their separate parts so that a reasonable overall interpretation is achieved..Dukes v. Durante, [supra, 214]. Furthermore, the meaning of a particular phrase in a statute is to be determined by reference to the use of that phrase in other parts of the same statute. Doe v. Institute of Living, Inc., 175 Conn. 49, 57, 392 A.2d 491 (1978); Sutherland, Statutory Construction (4th Ed. Sands) § 46.05. A meaning should not be ascribed to it which would render the meaning of those other uses difficult or bizarre; State v. Campell, 180 Conn. 557, 563, 429 A.2d 960 (1980); Connecticut Natural Gas Corporation v. DPUC, 1 Conn. App. 1, 4, 467 A.2d 679 (1983); and it must be construed with common sense. State v. Privitera, 1 Conn. App. 709, 721, 476 A.2d 605 (1984).” Shelby Mutual Ins. Co. v. Della Ghelfa, 3 Conn. App. 432, 438, 489 A.2d 398 (1985), aff d, 200 Conn. 630, 513 A.2d 52 (1986).

In Alteri v. Layton, 35 Conn. Sup. 261, 408 A.2d 18 (1979), the trial court, in a well reasoned opinion, rejected the defendant tenant’s claim of retaliatory eviction, holding that the repair requested had to be one “required to conform a dwelling unit to basic structural, mechanical and housing code regulations . . . .” Id., 267, citing Robinson v. Diamond Housing Corporation, 463 F.2d 853, 865 (D.C. Cir. 1972); see also Friske v. Miranda, Superior Court, judicial district of Hartford-New Britain, Housing Session at New Britain, Docket No. SPN-7907-512-BE (September 11, 1979). The Alteri court reasoned that “[t]o enforce properly the statute in a meaningful manner requires a balancing of the interests of both landlord and tenant .... To accept the literal interpretation propounded by the defendant could effectively negate the summary process proceedings of Connecticut statutes. The legislature could not have intended, in such an indirect fashion, to emasculate substantially a landlord’s statutory right to the possession of his property.” Alteri v. Layton, supra, 267.

We agree with the focus of the Alteri court on the delicate balance of the rights of tenants and landlords. On one hand, we must weigh the statutory right given to the landlord to regain possession of his property; on the other hand, we weigh the right of the tenant to remain in possession after requesting that defects in the premises be remedied. Unlike the Alteri court, however, we do not believe the repair at issue must be of a substantial code violation. An adequate and fair balancing of the rights involved may be achieved by requiring the requested repair to be one “necessary to put and keep the premises in a fit and habitable condition.” General Statutes § 47a-7 (a) (2).

We conclude that this interpretation of § 47a-20 will further the intent of the legislature without giving an unfair advantage to either tenants or landlords. If we were to construe “repairs” as meaning any repair, no matter how minor, we would encourage the inequitable scenario where month-to-month tenancies are unilaterally transformed into six month tenancies on the basis of a request, albeit in good faith, for the replacement of a light bulb or the tightening of a washer in a leaky faucet. What had then been intended as a shield for the benefit of tenants would be metamorphosed into a sword to deprive landlords of their property. Conversely, if we were to adopt the standard enunciated in Alteri, a tenant would be forced to always report a defect first to a municipal agency in order to prove that a substantial code violation exists. Not only would this rule discourage tenants from attempting to rectify defects by dealing directly with their landlord, under less volatile circumstances than an official complaint, but it would also meld two separate provisions of § 47a-20, creating a redundancy. See General Statutes § 47a-20 (1) and (3). We cannot assume that this was the intent of the legislature.

In conclusion, we hold that the protection afforded by § 47a-20 (3) is not invoked unless the repair requested is one which is necessary to maintain the leased premises in a fit and habitable state. This conclusion both advances the policy considerations underlying the enactment of the retaliatory eviction statute, “i.e., [the] protection of tenant attempts to secure safe, sanitary and decent housing”; R. Schoshinski, American Law of Landlord and Tenant § 12.9, p. 738 n.3; and it enables us to construe the statutory scheme of our landlord and tenant laws as a consistent whole; Powers v. TJlichny, 185 Conn. 145, 149, 440 A.2d 885 (1981); creating a “harmonious body of law.” Berger v. Tonken, 192 Conn. 581, 589, 473 A.2d 782 (1984). Whether or not the defect complained of goes to the tenantability of the property is a question of fact to be determined by the trier. See Johnson v. Fuller, 190 Conn. 552, 461 A.2d 988 (1983); Shipman v. Carr, 38 Conn. Sup. 393, 449 A.2d 187 (1982). Under the facts of this case, we cannot say that the trial court erred in determining that the repairs requested by the defendants were not necessary to keep the premises in “a fit and habitable condition.” General Statutes § 47a-7 (a).

There is no error.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 47a-20 (Formerly Sec. 19-375a). retaliatory action by landlord prohibited. A landlord shall not maintain an action or proceeding against a tenant to recover possession of a dwelling unit, demand an increase in rent from the tenant, or decrease the services to which the tenant has been entitled within six months after: (1) The tenant has in good faith attempted to remedy by any lawful means, including contacting officials of the state or of any town, city or borough or public agency or filing a complaint with a fair rent commission, any condition constituting a violation of any provisions of chapter 368o, or of chapter 412, or of any other state statute or regulation, or of the housing and health ordinances of the municipality wherein the premises which are the subject of the complaint lie; (2) any municipal agency or official has filed a notice, complaint or order regarding such a violation; (3) the tenant has in good faith requested the landlord to make repairs; (4) the tenant has in good faith instituted an action under subsections (a) to (i), inclusive, of section 47a-14h; or (5) the tenant has organized or become a member of a tenants’ union.” (Emphasis added.)

       Although the defendants framed the issue raised on appeal as “[w]hether the Court erred in finding that it was the defendants’ burden to prove substantial housing code violations in order to sustain a defense under Connecticut General Statutes § 47a-20,” we note that the standard used by the trial court was not whether a “substantial housing code violation” existed. See Alteri v. Layton, 35 Conn. Sup. 261, 408 A.2d 18 (1979), discussed infra.

       The insulation from eviction provided by § 47a-20 is not impregnable. General Statutes § 47a-20a provides: “actions deemed not retaliatory. (a) Notwithstanding the provisions of section 47a-20, the landlord may maintain an action to recover possession of the dwelling unit if: (1) The tenant is using the dwelling unit for an illegal purpose or for a purpose which is in violation of the rental agreement or for nonpayment of rent; (2) the landlord seeks in good faith to recover possession of the dwelling unit for immediate use as his own abode; (3) the condition complained of was caused by the wilful actions of the tenant or another person in his household or a person on the premises with Ms consent; or (4) the landlord seeks to recover possession on the basis of a notice to terminate a periodic tenancy, which notice was given to the tenant before the tenant’s complaint.
      “(b) Notwithstanding the provisions of section 47a-20, a landlord may increase the rent of a tenant if: (1) The condition complained of was caused by the lack of due care by the tenant or another person of Ms household or a person on the premises with his consent or (2) the landlord has become liable for a substantial increase in property taxes, or a substantial increase in other maintenance or operating costs not associated with his complying with the complaint, not less than four months before the demand for an increase in rent, and the increase in rent does not exceed the prorated portion of the net increase in taxes or costs.
      “(c) Nothing in this section or section 47a-20 shall be construed to in any way limit the defense provided in section 47a-33.”

       General Statutes § 47a-7 provides in pertinent part: “landlord’s responsibilities, (a) A landlord shall: (1) Comply with the requirements of chapter 3680 and all applicable building and housing codes materially affecting health and safety of both the state or any political subdivision thereof; (2) make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition, except where the premises are intentionally rendered unfit or uninhabitable by the tenant, a member of his family or other person on the premises with his consent, in which case such duty shall be the responsibility of the tenant; (3) keep all common areas of the premises in a clean and safe condition; (4) maintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, ventilating and other facilities and appliances and elevators, supplied or required to be supplied by him; (5) provide and maintain appropriate receptacles for the removal of ashes, garbage, rubbish and other waste incidental to the occupancy of the dwelling unit and arrange for their removal; and (6) supply running water and reasonable amounts of hot water at all times and reasonable heat except if the building which includes the dwelling unit is not required by law to be equipped for that purpose or if the dwelling unit is so constructed that heat or hot water is generated by an installation within the exclusive control of the tenant or supplied by a direct public utility connection.
      “(b) If any provision of any municipal ordinance, building code or fire code requires a greater duty of the landlord than is imposed under subsection (a) of this section, then such provision of such ordinance or code shall take precedence over the provision requiring such lesser duty in said subsection.”

       “[General Statutes] Sec. 47a-4a. effect of failure to comply with SECTION 47a-7. A rental agreement shall not permit the receipt of rent for any period during which the landlord has failed to comply with section (a) of section 47a-7.” See Pediment Homes, Inc. v. Russell, Appellate Session of the Superior Court, Docket No. 709 (February 15, 1980); Steinegger v. Rosario, 35 Conn. Sup. 151, 402 A.2d 1 (1979).

       General Statutes § 47a-14h provides in pertinent part: “action by INDIVIDUAL TENANT TO ENFORCE LANDLORD’S RESPONSIBILITIES. PAYMENT OF rent into court, (a) Any tenant who claims that his landlord has failed to perform his legal duties, as required by section 47a-7, may institute an action in the superior court having jurisdiction over housing matters in the judicial district in which he resides to obtain the relief authorized by this section and sections 47a-20 and 47a-68. No tenant may institute an action under this section if a valid notice to quit possession or occupancy based upon nonpayment of rent has been served on him prior to his institution of an action under this section or if a valid notice to quit possession or occupancy based on any other ground has been served on him prior to his making the complaint to the agency referred to in subsection (b) of this section, provided any such notice to quit is still effective.”

       “[General Statutes] Sec. 47a-33. (Formerly Sec. 52-540a.) DEFENSE THAT action is retaliatory. In any action for summary process under this chapter or section 21-80 it shall be an affirmative defense that the plaintiff brought such action solely because the defendant attempted to remedy, by lawful means, including contacting officials of the state or of any town, city, borough or public agency or filing a complaint with a fair rent commission, any condition constituting a violation of any of the provisions of chapter 368o, or of chapter 412, or of any other state statute or regulation or of the housing or health ordinances of the municipality wherein the premises which are the subject of the complaint lie. The obligation on the part of the defendant to pay rent or the reasonable value of the use and occupancy of the premises which are the subject of any such action shall not be abrogated or diminished by any provision of this section.
      There are two significant differences between this provision and § 47a-20: (1) under this provision, the tenant must have registered a complaint to some municipal agency or made some equivalent effort to remedy the condition, whereas § 47a-20 (3) allows a complaint to be made to the landlord directly; and (2) this provision permits a tenant to raise retaliation as an affirmative defense, which the tenant must then prove by a preponderance of evidence, whereas § 47a-20 establishes retaliation as a presumption, if a summary process action is initiated within six months of a complaint, which the landlord must then successfully rebut. See Mangiafico v. Saunders, Appellate Session of the Superior Court, Docket No. 900 (January 25,1980).

       As for § 47a-33, before the tenant may raise retaliation as an affirmative defense, he must establish that an attempt was made to remedy “by lawful means” any condition which was a violation of the state statutes or of a municipal code, including lodging a complaint with a municipal agency. See footnote 7, supra.


author: O’Connell, J.

text:
    State of Connecticut v. Gary Messier
    (4855)
    Dupont, C. J., Spallone and O’Connell, Js.
    Argued May 6
    decision released September 27, 1988

      Temmy Ann Pieszak, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      Leah Hawley, deputy assistant state’s attorney, with whom, on the brief, was John T. Redway, state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of one count of burglary in the first degree in violation of General Statutes § 53a-101 (a) (2) and 53a-8, and two counts of robbery in the second degree in violation of General Statutes § 53a-135 (a) (1). The defendant’s eleven enumerated claims of error fall into five general categories. He claims that the trial court erred (1) in refusing to recuse itself after presiding over pretrial negotiations, (2) in denying his motion for acquittal, (3) in admitting evidence of uncharged misconduct, (4) in its charge to the jury, and (5) in denying the defendant a fair trial due to its treatment of defense counsel throughout the course of the proceedings. We find error in part.

The jury could reasonably have found the following facts. On or about August 14, 1984, the defendant and Tammy Towler-Davis, broke into the apartment of the victim, assaulted him and demanded to know the whereabouts of certain illegal drugs (quaaludes) and a sum of money which were discovered missing from the apartment the defendant shared with Towler-Davis and his codefendant, Peter Mannetho. The victim relinquished a handful of quaaludes that he had taken from Nancy Gill, the defendant’s former housemate. The victim claimed that Gill had taken them from the defendant. Having failed to uncover any money, the intruders left with the drugs.

On August 21, 1984, the defendant, Towler-Davis and Mannetho, all of whom had been drinking, returned to the victim’s apartment seeking the return of the quaaludes or payment therefor. Upon opening the door, the victim was assaulted by the defendant who forced his way into the apartment. The defendant also assaulted the victim’s visitor, Richard Knudsen, knocking him to the floor. As the defendant and the victim argued in the living room, Towler-Davis approached Knudsen, who remained on the kitchen floor, and took money from his wallet. She and Mannetho then searched the apartment for other valuables.

The incident ended with the arrival of the police. No arrests occurred because the victim convinced the police that the altercation they had come to investigate had ended. The defendant and his cohorts left the victim’s apartment shortly thereafter, taking with them a leather jacket and a stereo as collateral for the return of the missing money and drugs. The defendant was subsequently arrested for his involvement in the two incidents.

I

The defendant first claims that the trial judge erred in refusing to recuse himself in light of his participation in the pretrial phase of the case. The defendant made this request on the morning the trial was scheduled to commence, arguing that the judge’s involvement in the preliminary discussions prevented the defendant from receiving a fair trial. In response to the defendant’s request for a rectification of the trial court record, the trial court, Mulcahy, J., filed certain findings regarding the refusal of Judge Fishman, who had presided over the defendant’s pretrial negotiations and trial, to recuse himself.

“It is axiomatic that the burden of establishing a record that a judicial impropriety has occurred which demonstrates or gives the appearance of bias or partiality so as to require recusal rests with the party who claims the occurrence of such an impropriety.” State v. Santangelo, 205 Conn. 578, 584, 534 A.2d 1175 (1987). Compliance with Practice Book § 997 affords the moving party the opportunity to compile such a record. State v. Maluk, 10 Conn. App. 422, 426, 475, 523 A.2d 928 (1987). Here, however, the defendant failed to comply with the Practice Book requirement by making only an oral request. Our Supreme Court, in State v. Santangelo, supra, recognized that despite failure to adhere to procedural requirements, “the serious consequences of the defendant’s conviction and the fact that his claim goes to his fundamental, constitutional right to a fair trial [permits us to review] the available record despite its procedural deficiencies.” Id., 585; State v. Evans, 165 Conn. 61, 69-70, 327 A.2d 576 (1973). We therefore will review the defendant’s claim.

If the available evidence had indicated that the trial court had actively participated in the plea negotiations during the pretrial conference, his recusal would have been mandatory. State v. Fullwood, 194 Conn. 573, 580, 484 A.2d 435 (1984); State v. Gradzik, 193 Conn. 35, 37, 475 A.2d 269 (1984). “[O]ur rules of practice expressly authorize the trial judge to do no more than to indicate whether a proposed agreed disposition may be accepted or rejected. . . . Active involvement by trial judges in plea negotiations has frequently been criticized.” (Citations omitted.) State v. Fullwood, supra, 580-81.

The dangers of active participation by trial judges in plea negotiations are obvious. “ ‘In the first place . . . [such participation] is likely to impair the trial court’s impartiality. The judge who suggests or encourages a particular plea bargain may feel a personal stake in the agreement (and in the quick disposition of the case made possible by the bargain) and may therefore resent the defendant who rejects his advice. . . . In the second place, judicial participation in plea discussions creates a misleading impression of the judge’s role in the proceedings. “As a result of his participation, the judge is no longer a judicial officer, or a neutral arbiter. Rather, he becomes or seems to become an advocate for the resolution he has suggested to the defendant.” United States v. Werker, [535 F.2d 198, 203 (2d Cir.), cert denied, 429 U.S. 926, 97 S. Ct. 330, 50 L. Ed. 2d 296 (1976)].’ ” State v. Gradzik, supra, 47, quoting United States v. Adams, 634 F.2d 830, 840-41 (5th Cir. 1981).

An examination of the record, including Judge Mulcahy’s findings, indicates that recusal was not required in the present case. The case was pretried by Judge Fishman in early February, 1985, for approximately twenty minutes. The state’s attorney outlined the criminal conduct charged and defense counsel offered mitigating information. The extent of Judge Fishman’s participation included asking the state’s attorney, “What are you looking for?” and responding to the effect that the state’s offer “sounded reasonable.” The defendant rejected the offer and the trial was eventually scheduled for September 18, 1985. On the morning of September 18, the settlement offer was repeated to the defendant in the court’s presence and was again rejected. Shortly thereafter defense counsel orally requested the court to recuse itself.

Having reviewed the record, we find that the trial court’s pretrial involvement in this case was minimal and did not rise to the level of “active participation” as described in State v. Fullwood, supra. “In the absence of [a damaging] record, we have no basis for concluding that the trial judge’s pretrial activities so impaired, or appeared to impair, his ability to act as a judicial officer or a neutral arbiter that it was error to deny the motion for disqualification.” Id., 581.

II

The defendant next contends that the trial court erred in denying his motion for a judgment of acquittal of the first degree burglary and second degree robbery charges that arose out of the August 14, 1984 incident. He claims that the evidence demonstrated that his only intent on that date was to reclaim his property which he believed the victim had stolen. We do not concede the existence of property rights in contraband, but it is not necessary to ponder the question in view of our disposition of this claim of error.

At trial, the jury was presented with conflicting evidence concerning the ownership of the quaaludes. The victim testified that Gill had told him that the drugs belonged to the defendant. On direct examination, however, the defendant denied ownership and stated that the drugs belonged to Towler-Davis, who had received them as collateral for a loan. It was the defendant’s claim that his apartment had been burglarized sometime before midaftemoon on August 13, 1984, and that Towler-Davis’ quaaludes and his $1200 were taken. He believed that the victim was involved in the theft and visited him in order to retrieve the money. Hence, the defendant argues that he lacked the intent to commit larceny or any other crime.

General Statutes § 53a-21 provides in pertinent part that “[a] person is justified in using reasonable physical force upon another person . . . when and to the extent he reasonably believes it necessary to regain property which he reasonably believes to have been acquired by larceny within a reasonable time prior to the use of such force . . . .”

First, even if the jury believed that the defendant was the owner of any of the property at issue and that his actions on August 14, 1984, were motivated by his desire to reclaim his property, the jury could not have reasonably concluded that his actions were “reasonable” as required under General Statutes § 53a-21. A defendant in pursuit of the repossession of his property cannot burglarize another’s home and assault him with impunity. We conclude, therefore, that a defendant cannot expect to avoid a conviction by employing such a defense. See State v. Woolfolk, 8 Conn. App. 667, 672, 517 A.2d 252 (1986), cert. denied, 202 Conn. 802, 519 A.2d 1207 (1987).

Further, we conclude, after examining the record, that the evidence presented was sufficient to support a conviction of the crimes charged. “The standard is whether ‘ “[t]he jury could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt.” ’ State v. Dumlao, 3 Conn. App. 607, 613, 491 A.2d 404 (1985), quoting State v. Giorgio, 2 Conn. App. 204, 211, 477 A.2d 134 (1984). In addition, the evidence must be given a construction most favorable to sustaining the jury’s verdict. State v. Dumlao, supra. Applying that standard to this case, we find there was sufficient evidence, if believed by the jury, to sustain the convictions.” State v. Nieves, 13 Conn. App. 60, 66, 534 A.2d 1231 (1987).

Ill

The defendant next claims that the trial court erred in admitting into evidence a photograph depicting evidence of uncharged misconduct, on the grounds that the photograph was irrelevant and highly prejudicial. The photograph in question is one of fourteen that were taken in the execution of a search warrant at the defendant’s apartment in November, 1984. It displays an open clothes dryer that contained a small container, a pipe and a flashlight.

Out of the presence of the jury, the state made an offer of proof as to each of the fourteen photographs, and four were ultimately admitted as full exhibits. The three admitted which are not at issue here displayed the stereo allegedly taken from the victim’s apartment on August 21, 1984, and a front view of the defendant’s apartment building.

During the state’s offer of proof, it was disclosed that the container found in the dryer was subsequently seized and several white pills, believed by .the police officers to be quaaludes, were found inside. The state’s attorney sought to introduce this picture and testimony from the police officers at the scene to demonstrate that the defendant and those residing at that location at the time of the crimes on appeal were involved with drugs. The defendant argued that this evidence was irrelevant because he was not charged with possession of the quaaludes and because the state failed to show a connection between these pills, which were discovered more than two months after the crimes charged, and the crimes.

The trial court overruled the defendant’s objections and denied his subsequent motions for mistrial and motions to strike the testimony concerning the pills. The court ruled that the evidence was admissible on the issue of credibility, even though it may have been linked to other crimes not at issue in the defendant’s trial. The trial court found the evidence relevant to the defendant’s as well as the victim’s credibility, which the defense had attacked by cross-examining the victim concerning his involvement with quaaludes.

First, it appears that the defense opened the door to evidence concerning quaaludes generally, and, in so doing, allowed the state to pursue that field of inquiry. See State v. Delosantos, 13 Conn. App. 386, 389, 536 A.2d 609 (1988). At various points in the trial, the defendant’s involvement with quaaludes was discussed. The defendant’s counsel cross-examined the victim about his purchase of a quaalude from the defendant, and, in addition, extensively cross-examined the victim about a purchase of quaaludes he had witnessed the defendant make. “In this case, ‘[t]he field of inquiry was opened by the defendant and he cannot complain if the state attempted to clarify that field, even if the evidence would otherwise be inadmissible. State v. Roy, [173 Conn. 35, 50, 376 A.2d 391 (1977)]; see State v. Glenn, 194 Conn. 483, 498-99, 481 A.2d 741 (1984).’ State v. Bowman, 3 Conn. App. 148, 154, 485 A.2d 1343 (1985).” State v. Delosantos, supra, 389.

Even if we assume, arguendo, that the trial court erred in admitting the photograph, our review of the record as a whole fails to persuade us that such an error would influence the jury’s verdict. Hence, it would be harmless. State v. Silva, 201 Conn. 244, 250-51, 513 A.2d 1202 (1986); State v. Foshay, 12 Conn. App. 1, 28-29, 530 A.2d 611 (1987).

IV

The defendant’s next category of claims concerns the propriety of the jury charge in several respects. The defendant first claims that the trial court erred in failing to instruct the jury that an owner may retake his own property when it is illegally taken from him. The defendant did not request this charge nor was such a charge given. We note at the outset that we have examined the charge, and we conclude that despite the absence of such an instruction, the charge as a whole was proper. “In reviewing a challenge to a portion of the jury instructions, the proper test is ‘whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.’ ” State v. Shindell, 195 Conn. 128, 143, 486 A.2d 637 (1985), quoting State v. Estep, 186 Conn. 648, 652, 443 A.2d 483 (1982). We conclude that the instruction in question met this standard and that no injustice resulted.

Furthermore, we note as justification for upholding the trial court’s charge concerning this claim, that in light of our determination in part II of this opinion, supra, the defendant did not use “reasonable” physical force in attempting to retake his property, and any instruction in that regard would have been improper.

The defendant next contends that the trial court’s instruction on intoxication was improper. The defendant cites individual phrases and expressions from the intoxication instruction in presenting his arguments with regard to this portion of the charge. Examining words or phrases in a vacuum, however, is not the proper manner in which to determine the propriety of a charge. To present an appellate argument in this manner is counterproductive, by drowning the significant substance of the claim in the minutia set forth. Such manner of argument further “represents the kind of microscopic examination of the charge discountenanced by our Supreme Court in State v. Mastropetre, 175 Conn. 512, 524, 400 A.2d 276 (1978).” State v. Lopez, 5 Conn. App. 599, 604, 502 A.2d 418 (1985), cert. denied, 199 Conn. 803, 506 A.2d 146 (1986). We conclude that the instruction regarding intoxication was proper and that the defendant’s claims are disposed of by our Supreme Court’s holdings in State v. Utz, 201 Conn. 190, 513 A.2d 1191 (1986), and State v. Stevenson, 198 Conn. 560, 504 A.2d 1029 (1986), which upheld similar jury instructions.

The defendant’s next claim of instructional error alleges that the trial court erred in its Secondino missing witness instruction, by giving a generalized instruction that failed to refer by name to individual witnesses. More precisely, the defendant claims that he was denied the benefit of the instruction as to two potential state witnesses, and was prejudiced by the drawing of an unfavorable inference with regard to a potential witness for the defense. We conclude that the defendant was not entitled to the instruction with regard to the two potential witnesses for the state, he having failed to demonstrate their availability, and that the state, to the contrary, was entitled to such an instruction regarding the defense witness in question.

The law regarding the propriety of a Secondino instruction is well settled. “ ‘The failure to produce a witness for trial who is available and whom a party would naturally be expected to call warrants an adverse inference instruction against the party who would be expected to call that witness. Secondino v. New Haven Gas Co., 147 Conn. 672, 674-75, 165 A.2d 598 (1960).’ State v. Santangelo, [supra, 596]; see also State v. Amarillo, 198 Conn. 285, 307, 503 A.2d 146 (1986). An inquiry into the appropriateness of a Secondino instruction is, accordingly, two-pronged: whether the witness is ‘available’ and whether, under the facts of this case, the witness is one whom [a party] would naturally be expected to produce.” State v. Wood, 208 Conn. 125, 140, 545 A.2d 1026 (1988).

The potential witnesses for the state, Gill and Robert Maikowski, were, respectively, a former housemate of the defendant who allegedly had stolen a portion of the drugs in question from the defendant, and a person who had overheard the defendant bragging about a subsequent attack on the victim. The defendant was not entitled to a Secondino instruction regarding either of these witnesses, as he had failed to establish that they were available to testify. The witnesses’ availability “ ‘was a fact to be shown by the [defendant] as the [party] to be benefited by the inference . . . .’(Citations omitted.) Fontaine v. Coyle, 174 Conn. 204, 209, 384 A.2d 616 (1978). Further, ‘[b]efore a negative inference can be drawn from a party’s failure to produce a witness, it must be shown that the party was able to procure the witness’ physical presence in court. (Emphasis added.) Shelnitz v. Greenberg, 200 Conn. 58, 74-75, 509 A.2d 1023 (1986).’ ” State v. Wood, supra, 140. The defendant stated in a footnote to his reply brief that: “The witnesses were available. They were listed on the state’s list of witnesses.” That statement “does not constitute an evidentiary showing of availability.” State v. Wood, supra. The defendant has failed to meet his burden with regard to the first prong of the Secondino inquiry; id., and because of that failure, it is unnecessary to consider whether the state naturally would have produced these witnesses. Id., 141.

Moreover, if the jury inferred that the Secondino instruction referred to Towler-Davis, the potential defense witness who was mentioned but did not testify, that inference was not erroneous, as such an instruction regarding Towler-Davis was appropriate.

After Towler-Davis was called to testify by the defendant, but before she took the witness stand, the state indicated, out of the jury’s presence, that it might pursue a perjury charge if Towler-Davis’ testimony was inconsistent with prior statements she had made. As a result, the defendant elected not to present her as a witness. These facts clearly indicate that TowlerDavis was available to testify. Further, because she had entered guilty pleas for her participation in the crimes at issue in the defendant’s trial, and because she was a participant in each of those crimes, she possessed superior knowledge of the case. Because Towler-Davis possessed such knowledge, the jury could have easily inferred that she was a witness the defendant would naturally be expected to produce. Cf. State v. Brown, 169 Conn. 692, 705-706, 364 A.2d 186 (1975) (laboratory analyst’s testimony would be cumulative to that of chief toxicologist and therefore did not constitute “superior knowledge”).

The defendant next contends that the trial court’s instruction precluded a unanimous jury verdict as it was unclear from the verdict whether the jury found the defendant guilty of burglary (1) because he intentionally attempted to inflict injury, or (2) because he knowingly made such an attempt. See General Statutes § 53a-3 (11) and (12).

Our resolution of this claim is controlled by our ruling in State v. Benite, 6 Conn. App. 667, 675, 507 A.2d 478 (1986). In Benite, this court found harmless error in the trial court’s failure to instruct a jury that it must be unanimous in determining by which theory of commission of a crime the defendant was found guilty. This court held that there was no reasonable possibility that the jury was misled. In that decision, the fact that the information filed against the defendant was available to the jury during deliberations, coupled with the court’s instruction, “in general terms,” that the verdict be unanimous, were factors which led to the finding of harmless error. State v. Benite, supra, 677.

In the present case, we note that in addition to the trial court’s reading of the information by which the defendant was charged, the jury had the information with them during deliberations, and the trial court instructed the jury on three occasions that their verdict had to be unanimous. Our examination of the jury charge and the record as a whole leads us to conclude that we “ ‘ “may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.” ’ Rosev. Clark, 478 U.S. 570, 576, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986), quoting Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986).” State v. Coleman, 14 Conn. App. 657, 679, 544 A.2d 194 (1988).

The defendant contends in his next claim of instructional error that the trial court’s charge on burglary in the first degree allowed the jury to convict him on the basis of a nonexistent aggravating element, namely, a reckless attempt to inflict injury. The defendant claims that by reading the statutory definition of burglary in the first degree, without limiting the elements contained therein to those charged in the information, the trial court impermissibly enlarged the crime with which he was charged. We find error, and remand the case for a new trial on the conviction of burglary in the first degree.

Both this court and our Supreme Court have condemned the reading of more of the statutory definition of a crime than is applicable to the facts of the case, when to do so would tend to mislead the jury. State v. Belton, 190 Conn. 496, 501-502, 461 A.2d 973 (1983); State v. Cole, 8 Conn. App. 545, 553, 513 A.2d 752 (1986). Such a claim of error is reviewable if the record supports a claim that the defendant was prejudiced or suffered unfair surprise. State v. Franko, 199 Conn. 481, 490, 508 A.2d 22 (1986). We conclude that the defendant was prejudiced by the charge as it allowed the jury to convict him on a legally unavailable theory. Although not raised in the trial court, the defendant’s claim is reviewable under State v. Evans, supra, as it involves the defendant’s constitutional right to a fair trial. State v. Williams, 202 Conn. 349, 363, 521 A.2d 150 (1987). The trial court charged, in part, that “[a] person acts recklessly when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur.” The court went on to state, one sentence later, that “[t]he defendant need not have actually inflicted bodily injury on anyone as long as he attempted to inflict such injury on someone in the course of committing the burglary.” (Emphasis added.) Because the trial court’s instruction allowed the jury to convict the defendant of burglary in the first degree on a theory of “reckless attempt” to commit bodily injury, we find error in the charge.

Our Supreme Court has held that “[a]ttempt liability requires that the defendant entertain the intent required for the substantive crime.” State v. Almeda, 189 Conn. 303, 309, 455 A.2d 1326 (1983); see also State v. Beccia, 199 Conn. 1, 505 A.2d 683 (1986) (conspiracy to commit reckless arson not legally cognizable). Because the charge as given created the element of “reckless attempt,” which element does not exist, the charge impermissibly expanded the manner in which the defendant could have been convicted of burglary in the first degree. We find error and remand the case for a new trial on that charge.

In his final claim of instructional error, the defendant argues that the trial court charged the jury on unsupported or other legally unavailable theories of commission. We have thoroughly reviewed the record and the evidence presented and we conclude that the defendant’s claim, with the exception of the previously discussed reckless attempt claim, is without merit. “ ‘ “On appeal, the adequacy of jury instructions is not determined by the giving of any one instruction, but by examining the instruction as a whole.” ’ State v. Brown, 199 Conn. 14, 27, 505 A.2d 690 (1986) [quoting United States v. Boekelman, 594 F.2d 1238, 1240 (9th Cir. 1979).]” State v. Delosantos, supra, 391. The evidence supports the charge as given and, reading it as a whole, we conclude that it was proper.

y

In his final claim, the defendant argues that the trial court’s comments to defense counsel throughout the proceedings deprived him of a fair trial. “A fair trial is one conducted with substantial conformity with the law, before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm.” State v. Siller, 12 Conn. App. 395, 398, 530 A.2d 1106 (1987). “The defendant is entitled to a new trial . . . only where he can show that prejudice resulted from the court’s actions.” State v. Gordon, 197 Conn. 413, 425, 504 A.2d 1020 (1985).

Our examination of the entire transcript indicates that the court, at times, appeared to be provoked and irritated by defense counsel’s actions. The majority of the allegedly improper comments, however, occurred outside the presence of the jury and concerned the trial court’s attempts to eliminate leading questions and irrelevant testimony. See State v. Siller, supra, 399. Our examination further discloses that none of the comments made in the presence of the jury in any way conveyed the court’s opinion as to the defendant’s guilt or innocence. Id., 400. Further, the court did not improperly comment on the significance of the evidence presented or on the merits of the defendant’s case.

We find that defense counsel zealously argued his case, fully cross-examined witnesses, and challenged the state’s evidence. Thus, the trial court did not thwart defense counsel’s ability to defend his client. Id. Finally, the court’s statements and its charge provided the jury with curative instructions in the event its statements or conduct were in any way misconstrued. Such instructions are entitled to great weight. Id., 401; State v. Jenkins, 8 Conn. App. 35, 37, 510 A.2d 1370 (1986). Hence, we conclude that the defendant received a fair trial.

There is error in part, the conviction of burglary in the first degree is vacated and the case is remanded for a new trial on that charge only.

In this opinion the other judges concurred.

       The defendant and Mannetho were tried together before a jury of six. Mannetho is not, however, a party to this appeal.

       The defendant was acquitted of the burglary and first degree robbery charges stemming from the incident that occurred on this date.

       Due to the death of Judge Milton Fishman, Judge John F. Mulcahy, Jr., presided over an evidentiary hearing seeking to determine the extent of Judge Fishman’s participation in the pretrial negotiations.

       “[Practice Book] Sec. 997. procedure.
      “A motion to disqualify a judicial authority shall be in writing and shall be accompanied by an affidavit setting forth the facts relied upon to show the grounds for disqualification and a certificate of the counsel of record that the motion is made in good faith. The motion shall be filed no less than ten days before the time the case is called for trial or hearing, unless good cause is shown for failure to file within such time.”

       In addressing the defendant’s oral request for recusal, Judge Fishman stated: “With regard to the cases that are about to start I wish to make it clear that I am not suggesting or encouraging a plea bargain. I have not participated in plea negotiations between the State’s Attorney and defense counsel in the determination of what charges to bring or what recommendations to make at the sentencing and whether or not the defendants should plead guilty. I have no personal stake in any agreement and I do not care whether either defendant enters a guilty plea or not. The matter was discussed at pretrial and I indicated at that time what the disposition of each case might be, given the information which was then available to me. I have no idea whether additional information and/or testimony or a jury verdict would cause me to change my mind and I approach the proceeding hereafter with an open mind and without any preconceived notions as to the guilt or innocence of each of the accused, or what the appropriate disposition should be if either of the defendants is convicted. We are ready to select a jury at this time and if counsel are ready I will have the jury panel brought in and we can start the process.
      “[Defense Counsel:] Your Honor, I would like to object to the Court hearing this case in view of the pretrial negotiations that occurred. And I think that the defendants cannot be afforded a fair trial when the Court has been involved in the preliminary discussions.
      “The Court: I have indicated my feelings on the record. Your objections are noted and they are overruled and you may have exceptions. The Court again makes it very clear that I have no personal stake, nor do I feel any concern at this time for a plea bargain and I have not indicated in any way whether or not the defendants should plea bargain or whether they should negotiate with the State’s Attorney and I have not been a part of that. I have made my statement for the record. I have no idea whether they are guilty or innocent and I really don’t care. The objections are overruled and you may have an exception.”

       On cross-examination, the victim testified to the existence of quaaludes that allegedly came from the defendant’s apartment. He admitted to stealing a handful of them as well as to a history of selling and using illegal drugs such as quaaludes.

       The defendant’s reliance upon Shea v. Tousignant, 172 Conn. 54, 372 A.2d 141 (1976), is misplaced. In that case, our Supreme Court held that a Secondino instruction given in the abstract, without any “allusion” to the evidence, was improper. We find that the trial court’s allusion to “certain witnesses who it was claimed, by their testimony, might have thrown light on the situation before you,” was sufficient to distinguish this case from Shea.


author: Daly, J.

text:
    State of Connecticut v. James LeRoy
    (5324)
    Borden, Spallone and Daly, Js.
    Argued May 10
    decision released September 27, 1988

      Paul N. Rotiroti, certified legal intern, with whom were Todd D. Fernow and, on the brief, Michael R. Sheldon, for the appellant (defendant).

      Timothy J. Sugrue, deputy assistant state’s attorney, with whom, on the brief, were Susann E. Gill, assistant state’s attorney, and Patrick Cosgrove, former assistant state’s attorney, for the appellee (state).
   Daly, J.

The defendant appeals from the judgment of conviction, after a jury trial, of assault in the second degree with a motor vehicle while intoxicated in violation of General Statutes (Rev. to 1983) § 53a-60d (a).

The dispositive issue on appeal is whether the trial court erred in instructing the jury to apply the prima facie provisions of General Statutes (Rev. to 1985) § 14-227a (d) in determining whether the defendant was intoxicated within the meaning of the charged offense of assault in the second degree with a motor vehicle, in light of the fact that the state was not required to comply with the procedural safeguards of General Statutes (Rev. to 1985) § 14-227a (c). We find error.

The jury could reasonably have found the following facts. On September 29, 1984, at approximately 3 a.m., the defendant was driving his motor vehicle in an easterly direction on Shaker Road in Enfield. The defendant crossed the center line and collided with a vehicle driven by Leslie Daniel, who was proceeding in the opposite direction. The victim was rendered unconscious for several days and suffered serious physical injuries as a result of the impact.

Officer Patrick Droney of the Enfield police department observed the defendant at the scene of the accident and testified that the defendant was swaying, that he was slurring his words, that he was emitting a moderate odor of alcohol, and that the defendant was unable to perform balance and coordination tests administered. Sergeant Raymond Bouchard, another officer at the scene, testified that there was a strong odor of alcohol emanating from the defendant and that the defendant had slurred speech and glassy eyes. Bouchard confirmed that the defendant was unable to pass the field tests administered by Droney. The defendant consented to an intoximeter test after admitting that he had “had a few.” The intoximeter test resulted in an alcohol blood level reading of .215 percent.

At trial, Abraham Stolman, chief state toxicologist, testified to the effects of alcohol upon a person’s physical and mental capacities and, over the defendant’s objection, that the state law presumed that a person who registered an alcohol blood level reading of .10 or higher on the intoximeter was legally intoxicated. The trial court in its charge to the jury instructed that it could consider the prima facie provisions of General Statutes (Rev. to 1985) § 14-227a (d) in determining whether the state had proven the element of intoxication beyond a reasonable doubt.

The defendant claims that the trial court erred in instructing the jury that it could use the prima facie evidentiary provisions of § 14-227a (d), particularly when the state had not complied with the procedural safeguards, in determining whether the state had established that the defendant caused the victim’s serious physical injuries “in consequence of his intoxication while operating a motor vehicle.” General Statutes (Rev. to 1983) § 53a-60d. We agree.

We first consider the state’s argument that the defendant’s claim is unreviewable because he failed to raise it at trial with sufficient clarity to alert the trial court to his true position. “The failure of the defendant to state distinctly the matter being objected to immediately after the conclusion of the charge ordinarily renders the claim of error unreviewable on appeal.” State v. Carter, 198 Conn. 386, 396, 503 A.2d 576 (1986). The requirements of counsel in preserving his client’s claim for appeal are abundantly clear and have been spelled out on numerous occasions.

“The defendant is required to raise a claim distinctly at trial. Practice Book § 4185 (formerly § 3063). Exceptions to a trial court’s ruling must be distinct and specific to preserve the claim. See State v. Barrett, 197 Conn. 50, 53 n.2, 495 A.2d 1044 (1985), rev’d, 479 U.S. 523, 107 S. Ct. 828, 93 L. Ed. 2d 920 (1987). ‘The requirement that the claim be raised “distinctly” means that it must be “so stated as to bring to the attention of the court the precise matter on which its decision is being asked.” (Emphasis added.) Woodruff v. Butler, 75 Conn. 679, 682, 55 A. 167 (1903).’ State v. Carter, 198 Conn. 386, 396, 503 A.2d 576 (1986).” State v. Sullivan, 11 Conn. App. 80, 101, 525 A.2d 1353 (1987).

In this case, the defendant objected to the admissibility of the intoximeter results on the grounds that the results were inapplicable to this offense and that the state failed to follow the procedural guidelines. Defense counsel also objected to the testimony of Stolman regarding the prima facie evidence of a .10 blood alcohol level reading. Moreover, counsel specifically requested a charge excluding any reference to “under the influence.” During the trial, the trial court indicated that it intended to discuss “under the influence.” The trial court informed counsel that: “I think it is relevant in view of what my charge on intoxication would be, I do intend to use the word[s] operating under the influence.” Finally, the record clearly indicates that counsel duly excepted to the trial court’s failure to delete the phrase in its charge.

This court has recently held in State v. Shaw, 12 Conn. App. 294, 302, 530 A.2d 653 (1987), that where the defendant objected to the incorporation, in the court’s instructions to the jury, of the provisions of General Statutes (Rev. to 1985) § 14-227a (d) without the protective procedural requirements of § 14-227a (c), the defendant’s claim of error was properly preserved for appeal. Likewise, in this case we can confidently state that the defendant’s claim was made with sufficient clarity and that it was understood by the trial court.

We turn, therefore, to the merits of the defendant’s claim. We conclude that the provisions of § 14-227a (d) do not apply to a prosecution of assault in the second degree with a motor vehicle while intoxicated in violation of § 53a-60d (a), on the basis of the rationale as expressed by this court in State v. Shaw, supra. The statutory language specifically referring to the violation of § 14-227a (a) and (b) must, therefore, be read to exclude its applicability to other statutes.

“On the basis of our conclusion that the provisions of General Statutes § 14-227a do not apply to a prosecution under General Statutes [(Rev. to 1983) § 53a-60d (a)], we must decide whether the trial court’s instructions to the jury regarding the effect of the prima facie provisions of General Statutes (Rev. to 1985) § 14-227a (d) on its determination of whether the defendant was intoxicated within the meaning of General Statutes [(Rev. to 1985) § 53a-60d (a)] requires reversal. ‘The question of whether reversal is required because of this error depends on the likelihood that it influenced the jury. We have stated that in cases involving constitutional error, the test is whether it is reasonably possible that the jury was misled. State v. Rose, 169 Conn. 683, 687-88, 363 A.2d 1077 (1975).’ State v. Shifflett, 199 Conn. 718, 754, 508 A.2d 748 (1986). Since our conclusion rests on statutory grounds, and is not of constitutional magnitude, it must be determined whether it was reasonably probable that the jury was misled.” Id., 302-303.

It is clear from the record that the jury was well aware of the defendant’s blood alcohol level and the statutory presumption flowing from a blood alcohol level of .10 percent. Stolman testified that the result of the test of the defendant’s blood alcohol level was .215 percent, and explained that the law presumed that all persons with a blood alcohol level of .10 percent or more are adversely affected. The jury was presented with the damaging expert testimony of Stolman, which was buttressed by the weight that the law itself lent to such evidence. The state, in its closing argument, reiterated Stolman’s recitation of General Statutes § 14-227a by stating that “at .10 you’re presumed to be under the influence and you’re unfit to operate a motor vehicle safely . . . well, we have a defendant that at 4:07 [a.m.] was .215.” The state ended its discussion of intoxication by pointing out that “under the law you’re presumed, prima facie, under the influence at .10 and it’s been that way since 1971, .10. This defendant was well over two times that limit.” The trial court added the weight of the statutory presumption to the jury’s determination of whether the defendant was intoxicated, which reinforced the state’s argument that the law itself deemed the defendant to have been intoxicated.

In its charge, the trial court offered the following definition of intoxication: “When it is apparent that a person is under the influence of liquor when his manner is unusual or abnormal or is reflected in his walk or conversation, when his ordinary willpower temporarily is suspended, when these or similar symptoms result from the use of liquor and are manifest a person may be found to be intoxicated.” The court also informed the jury, however, that: “The operating under the influence statute makes certain provisions in the event there is evidence of the amount of alcohol in the defendant’s blood. Now, our statute provides that evidence that the defendant’s blood contained ten-hundredths of 1 percent or more of alcohol by weight is prima facie evidence that the defendant was under the influence of intoxicating liquor within the meaning of the statute.”

We note that the critical issue at trial was whether the defendant was intoxicated at the time of the accident. In determining whether a jury instruction was misleading, it is appropriate to consider how it bears on the issue of the case. In this case, while the state’s evidence was strong, as set out previously, the issue of the defendant’s intoxication was nonetheless in dispute.

Ralph Adamczyk, an eyewitness to the accident, testified that he did not believe that the defendant was drunk, that he found nothing odd in the defendant’s demeanor, and that he did not see the defendant fall or stumble. Additionally, Adamczyk did not smell alcohol on the defendant’s breath and did not consider the defendant’s speech to be slurred. Moreover, Droney, who had testified on direct examination that the defendant was staggering, swaying, and unable to perform the balance and coordination tests, admitted on cross-examination that these observations were not recorded in his police report. Droney testified that the defendant was not belligerent or combative, and had no impairment of his mental facilities. Moreover, Bouchard, the shift supervisor, testified that while the defendant failed various field sobriety tests, the defendant fully understood the questions posed to him and gave appropriate answers. Bouchard additionally testified that the defendant was not staggering, stumbling or swaying, and that there was no indication of a distorted sense of time and memory.

We reject the state’s argument that the court’s instruction was neither incorrect nor misleading because it referred the jury, not only to the statute, but to “all other evidence in the case” in determining whether the defendant was intoxicated. The critical error in the court’s charge was not that it permitted the jury to find the defendant guilty solely on the basis of the test results, but that it added to the effect of the other evidence the weight of the law’s presumption as to the effect of a blood alcohol level of .10 percent or more. Under these circumstances, we conclude that it was reasonably probable that the jury was misled by the court’s instruction. 0

There is error, the judgment of conviction is set aside and the case is remanded for a new trial.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1983) § 53a-60d provides in pertinent part: “(a) A person is guilty of assault in the second degree with a motor vehicle while intoxicated when, in consequence of his intoxication while operating a motor vehicle, he causes serious physical injury to another person.”

       General Statutes (Rev. to 1985) § 14-227a (d) provides in pertinent part: “Evidence admitted under the provisions of subsection (c) shall have the following force and effect: ... (4) evidence that at such time the ratio of alcohol in the blood was ten-hundredths of one per cent or more of alcohol by weight shall be prima facie evidence that the defendant was under the influence of intoxicating liquor within the meaning of this section.”

       General Statutes (Rev. to 1985) § 14-227a (c) provides in pertinent part that: “evidence respecting the amount of alcohol ... in the defendant’s blood ... at the time of the alleged offense, as shown by a chemical analysis of the defendant’s . . . breath, blood or urine shall be admissible and competent provided” that seven procedural requirements were met.

       The following colloquy occurred at trial:
      “Mr. Austin [counsel for the defendant]: If I might for the record, Your Honor, I point out that the particular statute that we are here defending was enacted after that particular case. The purpose of the statute was to emphasize the drunk driving laws. I can’t believe that those particular sections do not apply to this.
      “And, Your Honor, for the record we can do it now or ask the jury to be removed, but once he testifies in front of the jury I want on the record that I’m moving to strike his testimony with regard to these test results.
      “The Court: And I’m going to deny your motion so don’t even bother making it before the jury. You can have your exception right now.
      “Mr. Austin: Okay. Fine, Your Honor. I just want it for the record.
      “The Court: I’m going to permit him to testify as to the reading. If he’ll testify that he was shown the tape, do that in the presence of the jury, I’m going to allow it and you can have your exception ahead of time.
      “Mr. Austin: Thank you, Your Honor.”

       Defense counsel raised the following objections:
      “Mr. Austin: Your Honor, I object first of all this person hasn’t been testified by the state as a person should who gives this particular evidence. I still believe he learned of it as hearsay.
      “This is highly prejudicial without the basis foundation as required under driving under the influence. I can’t believe that a person who’s driving under the influence, a less crime, is afforded more rights than a person charged with a class D felony. It seems inherently—
      “The Court: It is fair to say, Mr. Austin, your objection is for the failure of the state to comply with the requirements of section 14-227a (c) which lays out the requirements of admissible chemical evidence?
      “Mr. Austin: That’s correct, Your Honor.”

       The objection was as follows:
      “Mr. Cosgrove [assistant state’s attorney]: At that level is someone presumed to be under the influence?
      “Mr. Austin: Objection, Your Honor.
      “The Court: The basis of your objection?
      “Mr. Austin: Totally irrelevant to this case right now, Your Honor.
      “Mr. Cosgrove: I believe it is perfectly relevant, Your Honor.”