author: Freedman, J.

text:
    State of Connecticut v. Gregg Booker
    (9574)
    O’Connell, Freedman and Cretella, Js.
    Argued April 7
    decision released June 23, 1992

      Jerome J. Rosenblum, for the appellant (defendant).

      Carolyn K. Longstreth, assistant state’s attorney, with whom was James Bernardi, assistant state’s attorney, and, on the brief, Eugene Callahan, state’s attorney, for the appellee (state).
   Freedman, J.

The jury could reasonably have found the following facts. On July 18,1988, Lamont Oliver, the defendant and two or three others drove from New Haven to Roodner Court, a housing project in Norwalk, to settle a dispute regarding the sale of narcotics. They arrived at the housing project at approximately 11 p.m. and approached an open area between building 13-14 and building 19-20, where they paused at the top of a stairwell that overlooked the open area. Between thirty and 100 people were gathered in the parking lots and courtyard below. Oliver carried an assault rifle, which he had wrapped in his jacket. The defendant had a handgun, either a .38 or a .357 caliber, under his shirt.

Oliver spotted Michael “Fat Mike” Morris and Johnny Brown, a resident of Roodner Court and a convicted narcotics dealer, in the crowd. Brown and Morris were standing across the parking lot from Oliver and the defendant. Seeing Oliver unwrap his weapon, Brown stated to Morris, “Let’s get out of here.” They both ran through the crowd as they tried to get away.

Oliver fired shots in the air and the defendant took his handgun out of his shirt. Oliver fired in the direction of Brown and Morris as they ran for cover. He and his accomplices, including the defendant, thereafter began firing into the open area at random for approximately one and one-half minutes as they descended the stairs. Oliver, the defendant and the others with them then turned to leave, and two men in the area below, using handguns, not long barreled weapons, fired back at them as they retreated.

As a result of this gunfire, Everne Johnson, a pregnant woman who was sitting on a bench in front of building 20, was struck in the back by a bullet and died shortly thereafter. In addition, Sean Clemmons, another resident of Roodner Court, was fatally shot in the head.

A bullet fragment recovered during the autopsy performed on Johnson was part of a .22 caliber high power center fire cartridge projectile, which was consistent with the type of ammunition fired from a gun designed to fire .223 caliber rounds. Cartridges of .223 caliber are used in many long guns and rifles such as an M-16, a Chinese version of the AK-47, or an AR-15. The jury could have found that the bullet that killed Johnson had been fired from an AK-47, and that the bullet that lulled Clemmons was a .38 caliber which could have been fired from either a .38 or a .357 handgun.

I

As a result of the deaths of Johnson and Clemmons, the defendant and two others were each charged with three counts of murder, which required that a probable cause hearing be held prior to their prosecution. General Statutes § 54-46a. During the course of the probable cause hearing, the state announced to the trial court that “after speaking with various witnesses today, and reviewing the evidence up to this point, the state has decided to substitute manslaughter in the first degree charges charging reckless conduct.” The state filed substitute informations charging, inter alia, manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3). Thereafter, there was discussion between the court, the various defense counsel and the state, both on the record and in chambers, regarding the possibility that the state might reinstitute the murder charges. To allay such possibility, the state indicated that it did not intend to reinstitute the murder charges. The state then moved to have them dismissed “with prejudice” and to proceed with the manslaughter charges. The trial court granted the state’s motion, dismissed the murder charges “with prejudice,” vacated the prior pleas and put the three defendants, including Booker, to plea on the substitute information, to which the defendant pleaded not guilty to all charges, including the manslaughter counts. The defendant was subsequently convicted, after a jury trial, of both manslaughter counts. It was the granting of the state’s motion to dismiss the murder charges “with prejudice” that the defendant claims deprived the trial court of jurisdiction to proceed with the charges of manslaughter in the first degree.

We must first determine the precise claim of the defendant. Initially, the defendant, in his brief, claimed that the dismissal with prejudice deprived the court of personal jurisdiction. At oral argument before this court, however, the defendant made it clear that he had abandoned his claim of lack of personal jurisdiction and was not claiming double jeopardy. What he does claim, for the first time at oral argument before this court, is that the granting of the motion to dismiss the murder charges “with prejudice” deprived the trial court of subject matter jurisdiction of the manslaughter charges. This claim is without merit.

The defendant never raised the issue of subject matter jurisdiction during the probable cause hearing, prior to or during the trial to the jury, or in his brief to this court. The first mention of subject matter jurisdiction was in oral argument to this court. We address the issue, however, because “[ujnlike jurisdiction over the person, subject matter jurisdiction cannot be created through consent or waiver. . . . Once the question of lack of jurisdiction is raised, it must be disposed of no matter in what form it is presented. . . . The court must fully resolve it before proceeding further with the case. ...” (Citations omitted; internal quotation marks omitted.) Vincenzo v. Warden, 26 Conn. App. 132, 135, 599 A.2d 31 (1991).

“Jurisdiction of the subject matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong. . . . A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy. Such jurisdiction relates to the court’s competency to exercise power, and not to the regularity of the court’s exercise of that power.” (Citations omitted; internal quotation marks omitted.) Castro v. Viera, 207 Conn. 420, 427, 541 A.2d 1216 (1988).

In the matter at hand there is no question that the trial court had the power to hear and determine criminal matters, which is “the general class to which the proceedings in question belong.” Id.; see also State v. Carey, 222 Conn. 299, 305-306, 610 A.2d 1147 (1992). The trial court had “the authority to adjudicate [this] particular type of legal controversy.” Id. The dismissal with prejudice entered by the trial court at the probable cause hearing, therefore, could not have divested the court of subject matter jurisdiction over the manslaughter charges.

A dismissal with prejudice may operate to preclude the state from seeking a conviction of any lesser included crime encompassed by the information being dismissed. See State v. Morrill, 193 Conn. 602, 612, 478 A.2d 994 (1984). It is important to distinguish, however, between a lack of subject matter jurisdiction and a possible defense or bar to the prosecution of a particular charge. More important for the present case is that a defense or bar to prosecution, such as a lack of personal jurisdiction, must be affirmatively raised by the defendant prior to trial or his right to its protection is waived. Practice Book §§ 808, 810, 811 and 815; State v. Vincent, 194 Conn. 198, 201-204, 479 A.2d 237 (1984). A claim of a lack of subject matter jurisdiction, on the other hand, cannot be waived and may be raised at any time. Vincenzo v. Warden, supra. As we have determined that the defendant’s claim is not properly one of subject matter jurisdiction and because it was not raised at any time prior to oral argument before us, it is considered waived. Additionally, at oral argument before us, the defendant expressly waived or abandoned any claim other than a lack of subject matter jurisdiction.

II

The defendant next claims that, after the close of the state’s case-in-chief, the trial court improperly denied his motion for judgment of acquittal. The defendant makes this claim only as to the manslaughter charge relating to the death of Johnson. He argues that because there was evidence of return gunfire, and because the information required the state to prove that the gunfire of the defendant or his companions caused the victim’s death, as opposed to the return gunfire from others in the courtyard, a reasonable doubt existed as to the cause of the victim’s death. The defendant argues, therefore, that the jury could not have reasonably concluded, on the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence with respect to this particular victim established his guilt beyond a reasonable doubt.

“Before we can reach the merits of the defendant’s challenge to the sufficiency of the state’s case, we must determine whether such a claim is reviewable at all, in light of the defendant’s introduction of evidence in his own behalf . . . .” State v. Rutan, 194 Conn. 438, 440, 479 A.2d 1209 (1984). “Under the waiver rule, when a motion for acquittal at the close of the state’s case is denied, a defendant may not secure appellate review of the trial court’s ruling without foregoing the right to put on evidence in his or her own behalf. The defendant’s sole remedy is to remain silent and, if convicted, to seek reversal of the conviction because of insufficiency of the state’s evidence. If the defendant elects to introduce evidence, the appellate review encompasses the evidence in toto. The defendant then runs the risk that the testimony of defense witnesses will fill an evidentiary gap in the state’s case.” Id.; State v. Kari, 26 Conn. App. 286, 291, 600 A.2d 1374 (1991).

The defendant in this case elected to present a defense. We will review the evidence, therefore, in its entirety. “It is well established that in reviewing a claim of insufficient evidence, a two-part inquiry is undertaken. ‘We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the jury’s verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt. . . . In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.’ (Citations omitted.) State v. Sinclair, 197 Conn. 574, 576, 500 A.2d 539 (1985). Findings of fact that are consistent with guilt are afforded great deference unless they are improbable and unconvincing. State v. Osman, 218 Conn. 432, 437, 589 A.2d 1227 (1991).” State v. Gray, 221 Conn. 713, 719-20, 607 A.2d 391 (1992).

Keeping in mind that the defendant’s claim of insufficient evidence is limited to the death of Johnson only, we will limit our discussion to the evidence presented regarding the facts and circumstances surrounding her death. Johnson was sitting on a bench in front of building 20 when the shooting began. She was struck in the back by a single bullet. The initial targets of Oliver’s gunfire were Morris and Brown, who ran directly past Johnson in an effort to seek cover when the shooting began. Oliver and his companions fired shots into the courtyard for approximately one and one-half minutes.

An autopsy revealed that the fatal bullet was a .22 high power center fire cartridge projectile. The state’s ballistics expert testified that the bullet was consistent with ammunition fired from a gun designed to fire .223 rounds, usually long barreled guns, and rarely handguns. He further testified that the bullet found in Johnson could have been fired from an M-16, a Chinese version of the AK-47, or an AR-15. In addition, the defendant presented a ballistics expert who acknowledged that an AK-47 could have fired the bullet that killed Johnson.

Oliver testified, albeit on behalf of the defendant, that he had used an AK-47. He was, therefore, the only person at the scene who was firing a long barreled weapon, and thus the most likely person to have fired the fatal shot. The state, in rebuttal, also presented the testimony of Detective James Saraceni, who had interviewed Oliver during the police investigation of the shooting. Saraceni testified that Oliver had told him that he had been firing at someone known as “Fat Mike,” who ran by building 20 near the place where Johnson was sitting. Saraceni also testified that Oliver told him that the weapon he used during the shooting used .223 calliber ammunition. Finally, he testified that Oliver admitted to him that it appeared that his bullet had killed Johnson.

From the evidence presented and the inferences reasonably drawn therefrom, we cannot say that the jury could not reasonably have found that the defendant was guilty beyond a reasonable doubt of manslaughter in the first degree regarding the death of Johnson. The jury could reasonably have concluded beyond a reasonable doubt that, when Oliver, who had the only long barreled weapon at the scene, was shooting at Brown and Morris, one of his bullets struck and killed Johnson. This conclusion is further supported by the fact that those who returned gunfire at Oliver, the defendant and the others were between the defendant and Johnson, and therefore Johnson was not in their line of fire. This conclusion negates the inference raised by the defendant that Johnson was killed by the return fire of others not associated with him and Oliver. It was reasonable for the jury to conclude that the defendant aided Oliver, and, therefore, to find that the defendant is guilty of manslaughter as charged. Despite the lack of direct evidence, a conclusion of guilt may be premised on the cumulative effect of the evidence presented and the inferences reasonably drawn therefrom. State v. Weinberg, 215 Conn. 231, 253, 567 A.2d 1237 (1989). In addition, although there was conflicting testimony, “we must defer to the jury’s assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude.” State v. Henning, 220 Conn. 417, 420, 599 A.2d 1065 (1991).

Ill

The defendant’s final claim is that the trial court improperly broadened the state’s theory of liability and diluted the state’s burden of proof. Specifically, he claims that the trial court misled the jury into believing that it could find the defendant guilty even if it con-eluded that the victims were shot by those firing back at the defendant and his companions. The defendant’s request to charge did not include a requested charge on the issue and elements of causation with respect to either manslaughter count and the defendant failed to take exception to the trial court’s instructions as given. In fact, the defendant affirmatively expressed his satisfaction with every aspect of the jury instructions.

Without deciding whether the conduct of the defendant at trial constituted a waiver of his right to challenge the court’s instructions, as the state suggests, we conclude that this claim fails under the well established principles for review of unpreserved claims as set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Because the defendant failed to request an instruction on this issue or to take exception to the court’s instruction as given, he can prevail on his unpreserved constitutionally based claims only if the following four conditions are met: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” Id.

A claim that the court’s jury instructions improperly enlarged the scope of the offense charged implicates the criminal defendant’s sixth amendment rights, under the federal constitution, to be sufficiently informed of the nature of the charges against him. State v. Ruscoe, 212 Conn. 223, 253, 563 A.2d 267 (1989), cert. denied, 493 U.S. 1084, 110 S. Ct. 1144, 107 L. Ed. 2d 1049 (1990). “In reviewing a constitutionally based challenge to the court’s instructions to the jury, we must examine the charge as a whole to determine whether it is reasonably possible that the jury was misled by the challenged instruction. . . . The charge is not to be judged in artificial isolation from the overall charge.” (Citations omitted; internal quotation marks omitted.) State v. Falcon, 26 Conn. App. 259, 269, 600 A.2d 1364 (1991).

Viewing the instructions as a whole in this case, the defendant’s claim must fail because he cannot satisfy Golding’s third prong. Although the trial court’s initial discussion of proximate cause may have been overly broad as applied to this particular case, the trial court immediately proceeded to limit the proximate cause concept by further instructing the jury. Specifically, the trial court expressly stated to the jury that they must find that either the defendant or one of his companions fired the bullets that killed the victims in order to enter guilty verdicts on the manslaughter counts, and that if they harbored a reasonable doubt as to whether the fatal shots were fired by others not necessarily with the defendant, then they must find the defendant not guilty of both manslaughter counts.

“The jury is presumed, in the absence of a fair indication to the contrary, to have followed the court’s instructions. State v. Ortiz, 217 Conn. 648, 669, 588 A.2d 127 (1991).” State v. Parris, 219 Conn. 283, 294, 592 A.2d 943 (1991). Reading the instructions as a whole, as we must, the defendant cannot establish that a constitutional violation clearly exists and that it clearly deprived him of a fair trial. His claim, therefore, must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was also charged with attempt to commit assault in the first degree in violation of General Statutes §§ 53a-59 (a) (1) and 53a-49; however, he was acquitted of this charge.

       There was conflicting testimony as to whether Oliver was accompanied by two or three others. It is only relevant, however, that he was accompanied by the defendant.

       One of the original three counts of murder pertained to the unborn child of Eveme Johnson. A charge of manslaughter in the first degree was substituted along with the other two charges but apparently was never pursued at trial.

       The relevant dialogue between the trial court, counsel for one of Booker’s codefendants and the state’s attorney was as follows:
      “State’s Attorney: Yes, Your Honor. The issue that was raised here was whether or not the state intended to re-charge these murder charges. And the state has made the representation that it does not. And therefore the state will move to dismiss its murder charges, and reinstitute the manslaughter charges.
      * ** *
      “Defense Counsel: I take it the motion is being made by the state with prejudice.
      * * *
      “State’s Attorney: Yes, Your Honor.
      “The Court: Okay. Prior pleas and elections have been vacated. The state’s motion to dismiss . . . three counts of murder with regard to Mr. Booker, motions to dismiss are granted. The state’s proceeding on substitute information—
      “State’s Attorney: Charging three counts of manslaughter, Your Honor.
      “The Court: In the first degree in violation of § 53a-55 (a) (3), the gentlemen are now ready to be put to plea.
      “The Court: — Booker, the charge of manslaughter in the first degree, three counts, in violation of § 53a-55 (a) (3), how do you plead?
      “Mr. Booker: Not guilty.”

       “Section 815 (4) provides that questions concerning the jurisdiction of the court over the defendant may be raised by a motion to dismiss prior to trial. Section 808 declares that a pretrial motion is the exclusive means of raising such a defense if it is capable of determination prior to trial. Under § 811, all pretrial motions must be made not later than ten days after entry of a plea, or ‘for good cause shown, at such later time as the judicial authority may fix.’ Finally, § 810 provides that failure to abide by these rules constitutes a waiver of defenses or objections required to be raised before trial, such as ‘the absence of jurisdiction of the court over the defendant’ referred to in § 815 (4).” State v. Vincent, 194 Conn. 198, 201-202, 479 A.2d 237 (1984).

       We do not mean to imply that such a defense or bar to prosecution in fact existed on the facts of the present case. The trial court’s characterization of the action taken by it as a dismissal with prejudice is not necessarily dispositive of the effect to be given to such action. This court may make its own inquiry into the action of the trial court in the context in which it occurred in order to determine the effect of such action. State v. Paolella, 210 Conn. 110, 122, 554 A.2d 702 (1989). It is clear from an examination of the proceedings at the probable cause hearing that what the defendant was seeking was an assurance that the state would not reinstate the murder charges. He was at all times completely aware that the state intended to proceed on the charges of manslaughter in the first degree and in fact the substitute information was filed before any action was taken by the trial court. Immediately after the trial court dismissed the murder charges, the defendant was put to plea on the manslaughter charges. It cannot reasonably be said that the trial court, by its actions, intended to preclude the state from pursuing any further charges against the defendant other than murder.

       General Statutes § 53a-55 (a) provides: “A person is guilty of manslaughter in the first degree when ... (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.”

       We recognize that our Supreme Court has acknowledged the growing criticism of the application of the waiver rule and the implications it may have on a criminal defendant’s constitutional rights. State v. Simino, 200 Conn. 113, 118 n.5, 509 A.2d 1039 (1986); State v. Lizzi, 199 Conn. 462, 464-65, 508 A.2d 16 (1986); State v. Rutan, 194 Conn. 438, 444, 479 A.2d 1209 (1984); State v. Duhan, 194 Conn. 347, 352, 481 A.2d 48 (1984). Because, the waiver rule is still the prevailing law of this state, we apply it in this case.

       There was no evidence presented that those who returned gunfire directed their weapons in any direction other than at the defendant and his companions.

       The challenged portion of the trial court’s jury instructions is as follows: “The third and final element of the crime charged here is that the defendant — the defendant’s conduct must have caused the death of another person. This means that the defendant’s conduct was the proximate cause of the [victim’s] death. An act or failure to act is the proximate cause of death when it substantially and materially contributes in a natural and continuous sequence, unbroken by an efficient intervening cause to the resulting death. It occurred, and the predominating cause, the substantial factor, from which the death follows as a natural, direct and immediate consequence. It is necessary — it is not necessary, the particular kind of harm that result from the defendant’s act be intended by him. Where the death or injury caused by the defendant’s conduct is a foreseeable and natural result of that conduct, the law considers the chain of legal causation unbroken and holds the defendant criminally responsible. . . .”
      The trial court then immediately limited the application of the proximate cause concept in the present case with the following instruction: “Beginning with count three, you must find beyond a reasonable doubt that the defendant caused the death of the deceased, Sean Clemmons. Before you may do so, you must find beyond a reasonable doubt that the shot which killed Sean Clemmons was fired by Gregg Booker or one of the men whom he allegedly aided or abetted. If you harbor a reasonable doubt as to whether the shot which killed Sean Clemmons was fired by others, not necessarily allied with the defendant, then you must find him not guilty of paragraph three. The same is true with regard to paragraph four [relating to Eveme Johnson].”

       Immediately prior to the trial court’s administration of the jury instructions to the jury, the following discussion took place:
      “Mr. Bemardi [The Prosecutor]: All right. Now, before we bring out the jury, we should say something with regard to the instructions.
      “The Court: All right.
      “Mr. Bemardi: The state — I think requests to instruct have been filed by both the state and defense, and reviewed by Your Honor, myself, and counsel for the defendant, and as they — as they’ve been filed by both the state and the defense, the state and the defense have no difficulty with the charge that Your Honor is going to give at this point.
      “The Court: All right. Mr. Imhoff?
      “Mr. Imhoff [Defense Counsel]: I concur in that Your Honor.
      “The Court: All right. Okay. Bring in the jury.”
      Immediately after the trial court gave the jurors their instructions and dismissed them for deliberations, the following discussion occurred:
      “The Court: Is there any comment on the charge or—
      “Mr. Bemardi: I don’t have any comment.
      “Mr. Imhoff: No, Your Honor.”

       The defendant did not present an independent state constitutional claim, and, therefore, we need not consider this claim on state constitutional grounds.


source: Caselaw Access Project

author: Lavery, J.

license: Public Domain

text:
    Dennis Bradley v. Inland Wetlands Agency of the City of West Haven
    (10473)
    O’Connell, Foti and Lavery, Js.
    Argued April 6
    decision released June 23, 1992

      Kathleen S. Mass, with whom, on the brief, was Vincent R. Falcone, for the appellant (plaintiff).

      Charles A. Graham, corporation counsel, with whom, on the brief, was Henry C. Szadkowski, for the appellee (defendant).
   Lavery, J.

This appeal involves the defendant’s denial of the plaintiff’s construction permit application. The defendant had approved a previous permit application made by the plaintiff, and that permit expired because the plaintiff failed to initiate activity on the parcel within one year. The plaintiff claims that the trial court improperly failed to sustain his appeal because (1) the applications were identical and there had been no change of conditions or other considerations that had intervened that materially affected the merits of the application, and (2) he provided uncontradicted expert testimony that there would be minimal, if any, adverse impact on the inland wetlands and the defendant did not have any substantial evidence on which to base its denial.

The pertinent facts are as follows. On March 14, 1988, the defendant granted the plaintiff’s permit to build a single-family residence on a parcel of land adjacent to West Main Street in West Haven. The permit expired one year later on March 14,1989, because the plaintiff failed to initiate activity within one year as required by the defendant’s regulations.

On June 21, 1989, the plaintiff again applied for a construction permit. At its meeting on September 11, 1989, the defendant continued the application to October 10, requesting that the plaintiff provide additional information. In particular, the defendant requested that the plaintiff submit (1) a written report on the amount and use of fill, (2) a hydrological study evaluating the pipe on abutting property, and (3) a written report addressing the increased flow from the gutters of the proposed construction, including the ability of the pipe to handle the flow.

At the October 10 meeting, the plaintiff claimed that his application should be approved because nothing had changed concerning the property since the defendant approved the original application. One of the defendant’s members, however, stated that, in the course of examining applications regarding other parcels, the defendant had become aware of severe problems downstream that it was not aware of when the original application was approved in 1988. One of these problems was that water was running across West Main Street into Cove Brook. These problems caused the defendant to review the plaintiff’s second application more closely than it had the first. The plaintiff’s proposed structure was to be built on a slab, with the foundation higher than the surrounding property, causing water to run off onto adjacent property. The defendant denied the application because the plaintiff did not provide all of the information requested at the September 11 meeting.

In November, 1990, the plaintiff again reapplied, filing an application identical to those filed in March, 1988, and June, 1989. The defendant denied this third application on January 8, 1991. The plaintiff’s subsequent appeal to the Superior Court was dismissed.

“Administrative agencies are impotent to reverse [themselves] unless (1) a change of condition has occurred since its prior decision or (2) other considerations materially affecting the merits of the subject matter have intervened and no vested rights have arisen. Middlesex Theatre, Inc. v. Hickey, 128 Conn. 20, 22, 20 A.2d 412 [1941]. Hoffman v. Kelly, 138 Conn. 614, 616-17, 88 A.2d 382 (1952). The principle applies, however, only when the subsequent application seeks substantially the same relief as that sought in the former. Fiorilla v. Zoning Board of Appeals, 144 Conn. 275, 279, 129 A.2d 619 (1957). Grillo v. Zoning Board of Appeals, 206 Conn. 362, 367, 537 A.2d 1030 (1988).” (Internal quotation marks omitted.) Carlson v. Fisher, 18 Conn. App. 488, 497-98, 558 A.2d 1029 (1989).

It is unnecessary for this court to determine whether the 1988 and 1989 applications sought the same relief. The determination as to whether the application under review is substantially the same as the prior application and that circumstances and conditions have not changed so as to affect materially the merits of the application is for the defendant to determine in the first instance. Hotchkiss Grove Assn., Inc. v. Water Resources Commission, 161 Conn. 50, 58, 282 A.2d 890 (1971). The plaintiff bears the burden of proof to show that there was no change of conditions or circumstances since the prior application. Grillo v. Zoning Board of Appeals, supra, 368. The minutes of both the September 11 and the October 10, 1989 meetings clearly show that new information had come to the defendant since the granting of the plaintiff’s original application in 1988. The defendant was made aware of flooding problems in the area of the plaintiff’s property. The record shows that the defendant decided that considerations materially affecting the merits of the application had intervened and no vested rights had arisen. We conclude that there was substantial evidence in the record to show the change in circumstances and that the defendant made the plaintiff aware of its concerns.

We hold, on the basis of the foregoing considerations and the record before us, that the defendant acted properly in considering factors that came to light between the 1988 hearing and approval and the subsequent hearings and denials, and that the plaintiff did not meet his burden of proof that there were no changed conditions and that any vested rights had arisen.

The plaintiffs second claim is that he provided uncontradicted expert testimony that there would be minimal, if any, adverse impact on the inland wetlands and that the defendant did not have any substantial evidence to support the denial of his permit. “Appellate review of an agency’s decision is of limited scope. The reviewing court does not make a broad, de novo review of the record. Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 541, 525 A.2d 940 (1987). It does not redetermine factual issues or weigh the credibility of witnesses, as those matters are within the exclusive province of the agency. Id., 540-42. The court is limited to a review of the evidence and reasoning the agency has placed on the record. Agency decisions must be sustained if the record reveals substantial evidence in support of any reason given. Id., 539-40.” Kaeser v. Conservation Commission, 20 Conn. App. 309, 311, 567 A.2d 383 (1989).

The plaintiff relies on the rule set out in Feinson v. Conservation Commission, 180 Conn. 421, 429, 429 A.2d 910 (1980), in which the court held that in matters of technical complexity, such as pollution control, a lay commission without expertise in the area may not substitute its own judgment for contrary expert testimony. To do so without making public the basis of its decision and without offering the applicant an opportunity for rebuttal is to act arbitrarily and without fundamental fairness. Id., 428-29. In Feinson, the plaintiff’s engineer was the only witness questioned on the construction plan. Id., 423. There was no evidence to the contrary introduced either by an expert or a lay witness, but a lay commissioner did express a contrary opinion. Id., 426-27. The commission in Feinson denied the plaintiff’s permit application even though the commission evinced general satisfaction with the evidence that the plaintiff presented. Id., 428. The plaintiff’s appeal in Feinson was upheld because he was given no warning that his evidence would be entirely discredited and was denied an opportunity for rebuttal. Id.

The plaintiff argues that he produced evidence through his experts Virginia Burkhardt, an ecologist, and N.A. Esposito, an engineer, that there would be minimal, if any, adverse impact on the inland wetlands and that there was no substantial evidence to support the defendant’s denial of the permit.

In evaluating whether the conclusions reached meet the substantial evidence standards, the credibility of witnesses is a matter within the province of the administrative agency. Huck v. Inland Wetlands & Watercourses Agency, supra, 540-41. “An administrative agency is not required to believe any witness, even an expert.” Id., 542; Manor Development Corporation v. Conservation Commission, 180 Conn. 692, 697, 433 A.2d 999 (1980); Jaffe v. State Department of Health, 135 Conn. 339, 351, 64 A.2d 330 (1949). The agency is not required to use the evidence and materials presented to it in any particular fashion, as long as the conduct of the hearing is fundamentally fair. Huck v. Inland Wetlands & Watercourses Agency, supra; Manor Development Corporation v. Conservation Commission, supra. It cannot, however, completely disregard the documentary evidence before it. Johnson v. Zoning Board of Appeals, 156 Conn. 622, 624, 238 A.2d 413 (1968). The agency cannot disregard the only expert evidence on the issue when agency members lack their own expertise or knowledge; Tanner v. Conservation Commission, 15 Conn. App. 336, 341, 544 A.2d 258 (1988); but clearly, non-experts may offer reliable and substantial evidence. Kaeser v. Conservation Commission, supra, 315-16.

The difference between this case and Feinson is great. In Feinson, there was only one witness, the plaintiffs expert. In that case, there was no contrary evidence other than the opinion of a lay member of the board. In this case, the defendant had prior reports on the previous application that are part of the file and were exhibits at the hearing before the defendant of which the plaintiff was aware. The Eco Science Laboratory report concluded that “the subject lot is entirely wetland except for a fringe at some edges where dumpings of brush, trash and soil has raised the elevation by a foot or more. . . . The subject wetland is not less valuable or less important because it is found in a fully developed residential area; it is more important for that reason. The lake eco system which has virtually no wetlands remaining in its watershed is enhanced by the subject wetland. It would be a frank and serious violation of the whole spirit of our wetlands probation regulations to permit filling such a unique and vital habitat.” (Emphasis in original.)

Both the city engineer and the public works director were of the opinion that no filling should be allowed on the lot. Many neighbors spoke at the hearing citing the problems of downstream flooding. In addition, the plaintiff’s own expert gave contradictory opinions that support the defendant’s decision. In Virginia Burkhardt’s report, she refers to the map as revised on May 6, 1985, stating, “the proposed house would be built on a slab at grade,” that the wetlands pocket was “covered with ice at the time of the field inspection thus limiting observation of vegetative species and any inlets and outlets associated with the wetlands ...” and that “[rjunoff from the house is to be directed into the existing storm water system on West Main Street resulting in no increases in runoff to the wetland. The slab at grade construction insures that there will be no large amounts of fill placed on the lot, which could extend into the wetland and/or direct runoff onto adjacent properties.” (Emphasis added.)

Burkhardt’s report, however, had deficiencies. The map, as modified on January 8,1988, clearly shows that the structure would have been built on a slab, but that the slab would have been almost two feet above the average grade, inlets and outlets from the wetland go through a six inch pipe on adjoining property, and the structure on the slab is thirty-two feet south of the southern edge of the flagged wetlands, 2.1 feet above the grade of the wetlands. The conclusion that, at grade, construction ensures either no large amounts of fill, or no runoff into wetlands or adjacent properties could reasonably be found by the defendant to be incorrect.

Exhibits P, R, V and X and the map as modified on January 8,1988, show that there will be fifty-five cubic yards of fill, and that the proposed house is 1.5 to 2.1 feet higher than the other land surrounding it.

After a thorough review of the record, we conclude that the trial court correctly decided that the defendant’s denial of the plaintiff’s application was based on substantial evidence.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff in this action is Dennis Bradley. The defendant is the inland wetlands and watercourses agency of the city of West Haven.

       The defendant’s regulations provide in part: “Section 7.2. — Initiation of activity under a permit shall be within one (1) year of the granting of the permit, unless the time period is extended by the Commission.”

       “This so-called substantial evidence rule is similar to the ‘sufficiency of the evidence’ standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . [I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury. . . . [It] is a compromise between opposing theories of broad or de novo review and restricted review or complete abstention. It is broad enough and capable of sufficient flexibility in its application to enable the reviewing court to correct whatever ascertainable abuses may arise in administrative adjudication. On the other hand, it is review of such breadth as is entirely consistent with effective administration. . . . [It] imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . and to provide a more restrictive standard of review than standards embodying review of ‘weight of the evidence’ or ‘clearly erroneous’ action ... it is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” (Citations omitted; internal quotation marks omitted.) Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 541, 525 A.2d 940 (1987).

       Exhibit E. The exhibits referred to are those set forth in the return of record of the defendant as the papers acted on by the defendant.

       Exhibit P is a packet of information including the minutes of the defendant’s October 10, 1989 meeting and information provided by the plaintiff to the defendant. Exhibit R is the plaintiff’s third application, filed on November 21,1989. Exhibit V is the minutes of the defendant’s January 8, 1990 meeting. Exhibit X is a transcript of that portion of the defendant’s January 8, 1990 meeting which addressed the plaintiffs application.


author: Cretella, J.

text:
    William Raino et al. v. Supermarkets General Corporation
    (9750)
    O’Connell, Freedman and Cretella, Js.
    Argued April 7
    decision released June 23, 1992

      Dana P. Lonergan, for the appellants (plaintiffs).

      J. Kevin Golger, with whom, on the brief, was Gregory P. Lynch, for the appellee (defendant).
   Cretella, J.

The plaintiffs appeal from a judgment for the defendant, rendered after a jury trial, in an action for personal injuries and loss of consortium. The plaintiffs claim that the trial court improperly refused to admit into evidence the handwritten notes of the defendant’s night manager that were made soon after he learned of William Raino’s injury in the defendant’s store. The plaintiffs claim that these notes, although constituting hearsay, should have been admitted into evidence under one of several exceptions to the hearsay rule. We affirm the judgment of the trial court.

The plaintiffs’ revised complaint alleged that William Raino was a customer at the defendant’s Pathmark store in Bridgeport on August 30, 1987, when he fell as a result of a Pathmark employee’s striking his cane with a broom. During the plaintiffs’ case-in-chief, an incident investigation report prepared by Pathmark regarding the injury claim was introduced into evidence without objection as a business record. The incident report gave the customer’s description of the incident, listed witnesses, and contained other relevant information.

Kelly Alleyne, a cashier employed by the defendant at the time of the incident was called by the defendant as a witness. During the cross-examination of Alleyne, the plaintiffs sought to introduce into evidence the handwritten notes of James Fratantonio, the defendant’s night manager at the time of the incident. Alleyne could not identify the notes, but the plaintiffs offered the notes as an admission. The defendant’s objection to the offer of the notes was sustained by the court. The other cashier, Sandy Rishel, was not called by either party as a witness.

Later in the trial, during the plaintiffs’ cross-examination of Fratantonio, the plaintiffs again sought to introduce the same handwritten notes into evidence. Fratantonio had testified that William Raino telephoned him to report the incident about an hour after it had occurred. He then spoke to a cashier about the incident and made notes on a piece of scratch paper. Although Fratantonio testified that his notes reflected what he learned regarding the incident and that he relayed the information in the notes to the general store manager, Peter Mazurski, he also testified that it was not part of his business to keep notes of this nature and that the notes were not kept by him or Pathmark in the ordinary course of their business. Fratantonio stated that the incident report prepared by Mazurski and already admitted into evidence constituted the business record regularly used by Pathmark to preserve accident information.

The plaintiffs claimed that the notes should be admitted into evidence under an exception to the hearsay rule as an admission, as a declaration against interest, as a business record, and under the catchall exception. The defendant again objected to the offer of the notes on any of these grounds. The objection was sustained by the trial court. The plaintiffs did not attempt to offer the notes into evidence during the remainder of the trial.

An out-of-court statement that is offered to establish the truth of the matters contained therein is hearsay. State v. Rinaldi, 220 Conn. 345, 359, 599 A.2d 1 (1991); State v. Rochette, 25 Conn. App. 298, 303, 594 A.2d 1006 (1991). On appeal, the plaintiffs claim that Fratantonio’s notes should have been admitted into evidence under an exception to the hearsay rule (1) as a business record, (2) as an admission by adoption, (3) as Fratantonio’s past recollection recorded, (4) as a prior inconsistent statement, and (5) under the catchall exception to the hearsay rule. We will not review the plaintiffs’ third and fourth claims because neither of these grounds for the admission of the notes was raised in the trial court. O & G Industries, Inc. v. Mizzoni, 23 Conn. App. 19, 23, 578 A.2d 672 (1990); DiSorbo v. Grand Associates One Limited Partnership, 8 Conn. App. 203, 206-209, 512 A.2d 940 (1986). We now address the plaintiffs’ remaining claims, which were properly preserved for appeal.

Business Record Exception

The plaintiffs claim that Fratantonio’s notes were such an integral part of the Pathmark incident investigation report, which did qualify as a business record under General Statutes § 52-180, that the notes, too, must be admitted under the business record exception to the hearsay rule. It is a correct statement of law that preliminary or investigative notes used in the preparation of an admissible business record can be a business record under § 52-180, but not every statement contained in a document qualifying as a business record is necessarily admissible. To be admissible under § 52-180, the contents of a business record must be based on the entrant’s own observations or on information transmitted to him by an observer whose business duty it was to transmit it to him. Statements obtained from volunteers are not admissible, although included in a business record, because it is the duty to report in a business context that provides the reliability to justify this hearsay exception. Information in a business record obtained from a person with no duty to report is admissible only if it falls within another hearsay exception. In re Barbara J., 215 Conn. 31, 40, 574 A.2d 203 (1990); D’Amato v. Johnston, 140 Conn. 54, 59, 97 A.2d 893 (1953).

The admissibility of the notes as a business record fails, not because the notes do not qualify as a business record, but because a proper foundation was not laid. It was not established that the information contained in the notes was transmitted to Fratantonio by an observer whose duty it was to transmit such observations. See State v. Palozie, 165 Conn. 288, 295-96, 334 A.2d 468 (1973). Fratantonio testified that he spoke to the plaintiff and a cashier in preparing his notes. He could not recall who the cashier was; he did not know whether the cashier had witnessed the accident; the notes also contain references to other individuals whose identity was not established; the notes contained the names of the cashiers that had not been written by him and had been crossed out. While a cashier would certainly have a duty to report accurately a worksite injury to supervisory personnel, the foundation testimony on which the plaintiff sought to establish the admissibility of Fratantonio’s notes failed to establish whether the information, in fact, came from the cashier and, if it did, whether the cashier’s information was based on personal observation or the hearsay statements of others. Statements of persons who do not have a business duty to report pertinent information, even where they are included in a business record prepared by a person who does have such a duty, are not admissible under § 52-180. Id. Because the foundation testimony failed to establish the source of the information contained in the notes, the trial court correctly precluded their admission under the business record exception to the hearsay rule.

Admission

The plaintiffs next claim that Fratantonio’s notes were admissible as adoptive admissions of the defendant because the statements therein were reflected in the defendant’s incident investigation report. “When a party’s conduct indicates that the party assents to or adopts a statement made by another person, the statement is admissible against the party.” C. Tait & J. LaPlante, Connecticut Evidence § 11.5.5. Under this exception to the hearsay rule, “a party’s use of a document made by a third person will amount to an approval of its statements as correct and, accordingly, may be received against him as an ‘admission by adoption.’ . . . This applies even to information based on hearsay as it may be assumed that the user of the writing informed himself of its contents. . . . The circumstances surrounding the use of such a document are significant in determining whether its use constitutes an admission by adoption.” (Citations omitted.) Falker v. Samperi, 190 Conn. 412, 426, 461 A.2d 681 (1983).

In the present case, the plaintiffs did not establish a sufficient foundation to allow the notes into evidence as an admission by adoption. The plaintiffs failed to establish the relationship between Fratantonio’s notes and the Pathmark incident report. Fratantonio never testified that he approved of the statements contained in the notes and reported them as an accurate portrayal of the accident to Peter Mazurski, his supervisor, who was responsible for preparing the incident investigation report. In fact, Mazurski later testified that he could not recall seeing the notes before trial and that he could not recall the source of his information in preparing the incident report. Without sufficient foundation regarding the precise use to which the notes were put or the claimed relationship between the notes and the report, the trial court properly excluded the notes as an admission by the defendant or its managerial employees.

Catchall Exception

The plaintiffs also seek to establish the admissibility of Fratantonio’s notes under the so-called catchall exception to the hearsay rule. This claim need not detain us long.

“Though generally inadmissible, hearsay may be admitted if there is a sufficient probability that the statement is reliable and trustworthy, if the evidence contained in the statement is necessary to [the] resolution of the case, and if the trial court concludes that admitting the statement is in the interests of justice.” (Emphasis added.) State v. Stepney, 191 Conn. 233, 249-50, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984). The plaintiffs, however, failed to satisfy the key requirements of reliability and necessity for admission of the notes under this exception to the hearsay rule. The fact that Fratantonio could not identify the source of the various statements in his notes, the fact that he never vouched for the accuracy of the information in his notes, the failure to establish the precise relationship between the notes and the incident report and the fact that the incident report, which the plaintiff asserts contains much or all of the information in the notes, was already introduced in evidence, undercut both the reliability prong and the necessity prong of the catchall exception. Consequently, we agree with the trial court that Fratantonio’s notes were not admissible under this exception to the hearsay rule.

The judgment is affirmed.

In this opinion the other judges concurred.

       This action was brought by the named plaintiff and Kathleen Raino, his wife. Both are parties to this appeal.

       The customer description of incident portion of the incident investigation report stated: “customer was bagging his groceries at register #8 (bagging one handed and holding a cane in the other hand) when maintenance man sweeping the front end knocked his cane out from under him and he fell to the floor.”
      The incident investigation report listed the following witnesses: “Sandy Rishel (cashier)” and “Kelly Alleyne (cashier).”
      The remarks portion of the incident investigation report contained the following additional relevant information: “cashier was Kelly Alleyne, saw incident, Eugene hit cane by accident, said was sorry, Mr. Raino said he was OK and left with his groceries.”

       General Statutes § 52-180 provides in pertinent part: “Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter.”

       Even investigative notes must meet the preliminary requirements of General Statutes § 52-180, “(1) that the record was made in the regular course of business, (2) that it was the regular course of the business to make the writing, and (3) that the writing was made at the time of the transaction or occurrence, or within a reasonable time thereafter.” State v. Crumble, 24 Conn. App. 57, 69, 585 A.2d 1245 (1991). Although Fratantonio testified that his notes were only scratch paper and that, as such, the notes were not kept by him or Pathmark in the ordinary course of business, he also testified that he was in charge of the store at the time of the incident, that it was his duty to investigate promptly what had occurred, and that he recorded what he learned in the course of his investigation on the scratch paper that he used. While we believe that the notes meet the criteria set forth in § 52-180, we conclude that the notes were not admissible under the business record exception for reasons other than their failure to qualify as a business record.

       The conclusion here does not conflict with our analysis in Shuchman v. State Employees Retirement Commission, 1 Conn. App. 454, 472 A.2d 1290 (1984). In Shuchman, we concluded that “[i]t is not necessary to prove the specific identity of the informant.” Id., 459. Essential to that conclusion, however, was the determination that, although the identity of the source of the information was unknown, the information did, in fact, come from a person whose business duty involved submitting the information for inclusion in the report and not from “an officious intermeddler, foreign to the affairs of the [business enterprise].” Id., 458. The same cannot be said here with any degree of certainty since neither the notes nor the testimony regarding them indicates the source of the statements contained therein. Furthermore, the source of at least some of the statements contained in the notes appears to be the plaintiff William Raino, who certainly had no business duty to Pathmark in this context. See Schwarz v. Waterbury Public Market, Inc., 6 Conn. App. 429, 435-36, 505 A.2d 1272 (1986).


author: Landau, J.

text:
    Melvin Daniels v. Warden, State Prison
    (9908)
    Daly, Landau and Freedman, Js.
    Argued March 31
    decision released June 30, 1992

      Louis S. Avitabile, special public defender, for the appellant (defendant).

      Mary H. Lesser, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Christopher Alexy, deputy assistant state’s attorney, for the appellee (state).
   Landau, J.

The petitioner, Melvin Daniels, an inmate at the state correctional institution in Somers, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. In his petition, he alleged that he was illegally confined for two reasons pertinent to this appeal. He claimed that (1) he was denied effective assistance of counsel in that his trial counsel failed both to seek cautionary instructions regarding the identification of the codefendant and to request a new trial, and (2) he was denied a fair trial as a result of his being tried jointly with a codefendant, the admission of a midtrial surprise identification of the codefendant, and the trial court’s charge to the jury.

The facts pertinent to this appeal are fully set forth in State v. Chapman, 16 Conn. App. 38, 39-40, 546 A.2d 929, cert. denied, 209 Conn. 827, 552 A.2d 433 (1988), but will be restated here to the extent necessary to address the petitioner’s appellate claims. At approximately 9 p.m. on July 26,1985, three young black males entered the New China restaurant in New Haven. The tallest carried a sawed-off shotgun, wore a scarf or bandanna over his face and ordered everyone not to move. One of the other two males also wore a scarf or bandanna over his face and the third wore a stocking mask. All three were dressed in dark clothing. They took money and jewelry from various customers and from the cash register. During the course of the robbery, the barrel of the shotgun inadvertently hit the leg of the owner of the restaurant. No shots were fired.

At approximately 10 p.m. on the same evening, a nearby gas station was robbed by two young black males, the taller one with a bandanna over his face and carrying a sawed-off shotgun and the other wearing a stocking mask. During this robbery, John Cooke, the night manager of the station, was poked in the face with the shotgun, causing his lip to bleed, and a customer was pushed against a wall. Cooke was asked to open the safe. When he replied that he did not have the combination, the perpetrators threatened to shoot him and began counting backwards from five to zero. They left the station without firing any shots. They were seen running in the direction of Fitch Street.

Shortly thereafter, two young black males entered the Convenient Food Store on the corner of Fitch and Blake Streets. The taller man wore a bandanna over his face and carried a sawed-off shotgun and the other wore a stocking mask. The taller man ordered everyone not to move and jabbed the store clerk with the gun as he attempted to push the alarm. When the clerk was unable to open the register, the gunman fired one shot into the air over the clerk’s head, blowing out four lights. Both males then left.

The petitioner and two other males were apprehended and charged with two counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4) and one count of attempted robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (2) and 53a-49. At the joint trial of the petitioner and Chapman, the third participant in the robberies, James Owens, testified for the state. He described the events of the entire evening, implicating both the petitioner and Chapman. John Cooke, the gas station night manager, also testified at trial. During a recess after his cross-examination, Cooke indicated to the prosecutor that while he was testifying he recognized Chapman’s eyes as those of the male who carried the shotgun. Cooke was recalled to the stand and identified Chapman, by his eyes and the shape of his head, as the taller male who carried the shotgun. Chapman’s attorney objected to the identification on the grounds that the procedure was suggestive and the identification unreliable. The objection was overruled. The petitioner’s attorney made no objection, nor did he request that the trial court instruct the jury that the evidence was admissible only against Chapman and not against the petitioner. The codefendant was convicted on all three counts.

On appeal to this court, the petitioner argues that the habeas court improperly concluded that because he had the benefit of two competent counsel, his trial counsel and his codefendant’s counsel, and because he had failed to meet his burden of establishing that the representation by his attorney at trial was ineffective and prejudicial, he was not deprived of effective assistance of counsel. He also argues that the habeas court improperly found that “[t]he trial court’s cautionary remarks at the beginning of the trial and in [its] charge should have sufficed. There is no evidence that . . . the cautionary instructions [would have been] made. Most important, there was no certainty that the outcome would have been different.” (Emphasis added.) The petitioner, therefore, asserts that the court’s conclusion that he was not denied a fair trial by being tried jointly with a codefendant or by the surprise midtrial identification of the codefendant was improper. We agree with the habeas court.

I

The petitioner first claims that the habeas court improperly found that he could not prevail on his claim of ineffective assistance of counsel because he could not prove that his attorney’s failure to seek cautionary instructions regarding the identification of the codefendant and to request a new trial was deficient or resulted in any prejudice.

“We first consider our scope of review. Although the underlying historical facts found by the habeas court may not be disturbed unless they were clearly erroneous, whether those facts constituted a violation of the petitioner’s rights under the sixth amendment ‘is a mixed determination of law and fact that requires the application of legal principles to the historical facts of this case.’ Cuyler v. Sullivan, 446 U.S. 335, 342, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980). As such, that question requires plenary review by this court unfettered by the ‘clearly erroneous’ standard. Id.; see also Mannhalt v. Reed, 847 F.2d 576, 579 (9th Cir.), cert. denied, 488 U.S. 908, 109 S. Ct. 260, 102 L. Ed. 2d 249 (1988); Government of the Virgin Islands v. Zepp, 748 F.2d 125, 134 (3d Cir. 1984). Indeed, we have applied that scope of review, without specifically articulating it, to claims of ineffective assistance of counsel. See Johnson v. Commissioner, 218 Conn. 403, 423-29, 589 A.2d 1214 (1991); Siemon v. Stoughton, 184 Conn. 547, 440 A.2d 210 (1981). In accordance with this scope of review, we next consider the merits of the petitioner’s claim.” Phillips v. Warden, 220 Conn. 112, 131-32, 595 A.2d 1356 (1991).

“ ‘ “A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel’s performance was deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defense. . . . Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.” Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied, 467 U.S. 1267, 104 S. Ct. 3562, 82 L. Ed. 2d 648 (1984); Aillon v. Meachum, 211 Conn. 352, 357, 559 A.2d 206 (1989).’ ” Williams v. Warden, 217 Conn. 419, 422, 586 A.2d 582 (1991).

“ ‘Establishing that counsel’s performance was deficient “requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland v. Washington, supra, 687. To demonstrate this, “the defendant must show that counsel’s representation fell below an objective standard of reasonableness.” Id., 687-88. “In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances.” Id., 688. “Judicial scrutiny of counsel’s performance must be highly deferential,” and courts “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ Id., 689, quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 100 L. Ed. 83 (1955), reh. denied, 350 U.S. 955, 76 S. Ct. 340, 100 L. Ed. 831 (1956); see also Burger v. Kemp, 483 U.S. 776, 788-96, 107 S. Ct. 3114, 97 L. Ed. 2d 639, [reh. denied, 483 U.S. 1056, 108 S. Ct. 32, 97 L. Ed. 2d 820] (1987); Darden v. Wainwright, 477 U.S. 168, 185-86, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986); Aillon v. Meachum, supra, 357; Valeriano v. Bronson, 209 Conn. 75, 86, 546 A.2d 1380 (1988); Levine v. Manson, 195 Conn. 636, 640, 490 A.2d 82 (1985).” ’ ” Williams v. Warden, supra, 423, quoting Fair v. Warden, 211 Conn. 398, 403-404, 559 A.2d 1094, cert. denied, 493 U.S. 981, 110 S. Ct. 512, 108 L. Ed. 2d 514 (1989).

With these standards in mind, we now turn to the merits of the petitioner’s claim. The petitioner asserts that the habeas court improperly determined that his trial attorney’s failure to seek a cautionary instruction as to the use of that identification or to seek a new trial because of the prejudice of the joinder of his case with that of his codefendant did not constitute ineffective assistance of counsel. The habeas court heard testimony from Thomas Corradino, counsel for the codefendant, and from the petitioner’s trial counsel. Their combined testimony revealed that the petitioner and Chapman sought a joint trial and that because of the related circumstances of the cases and the identical witnesses who would be testifying against each of the defendants, it was reasonable for the two defendants to be tried jointly. Moreover, the habeas testimony indicated that the decision not to challenge the in-court identification of Chapman or to request a limiting instruction regarding the admissibility of the identification was a trial tactic intended to distance the petitioner from Chapman in the minds of the jurors. The habeas court correctly-concluded on the basis of this testimony that the petitioner failed to meet his burden of proving that his counsel’s conduct was deficient. Because the petitioner has failed to meet this first prong of Strickland v. Washington, supra, we need not consider whether the petitioner was prejudiced by his counsel’s conduct.

II

The petitioner next claims that the habeas court improperly found that he was not denied a fair trial by being tried jointly with a codefendant or by the surprise midtrial identification of the codefendant, and that the trial court’s instructions to the jury “should have sufficed” to direct the jury in its use of the evidence produced at trial.

This claim was not raised at trial. It was raised for the first time before the habeas court. The appropriate standard for reviewability in a habeas corpus proceeding of constitutional claims not adequately preserved at trial is the Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977); standard of “cause and prejudice.” Johnson v. Commissioner, 218 Conn. 403, 412-13, 589 A.2d 1214 (1991). The petitioner must show good cause for his failure to preserve a claim at trial and actual prejudice resulting from the alleged constitutional violation. In order for the petitioner to obtain habeas review of this claim, he must demonstrate (1) cause for his failure to seek severance or object to the identification testimony at trial and (2) that the joinder of defendants and the identification testimony was prejudicial. The petitioner must satisfy both elements to obtain relief. Id., 419. The habeas court made no finding regarding the petitioner’s burden of establishing cause and prejudice.

In Giannotti v. Warden, 26 Conn. App. 125, 599 A.2d 26 (1991), cert. denied, 221 Conn. 905, 600 A.2d 1859 (1992), this court was faced with a similar situation. The court concluded, after reviewing the transcript of the habeas hearing, that no evidence had been presented of “at least the second requirement of the Wainwright cause and prejudice standard” and therefore determined that the petitioner had failed to satisfy his burden of proving cause and prejudice. Id., 129. Giannotti permits this court to review the record, in an effort to determine whether any evidence of cause and prejudice has been provided by a petitioner. Where no evidence has been provided, this court can independently conclude that the petitioner has failed to meet the cause and prejudice test. Where, however, there has been evidence presented on the issues of cause and prejudice and the habeas court does not make a finding on the record that the petitioner has either met or failed to meet his burden of establishing cause and prejudice, we will not review the inadequately preserved constitutional claim on the merits. Rather, we will remand the case to the habeas court for it to determine whether the petitioner has satisfied his burden of establishing cause and prejudice. See Watley v. Commissioner, 219 Conn. 231, 592 A.2d 911 (1991); Jackson v. Commissioner, 219 Conn. 215, 592 A.2d 910 (1991). As our Supreme Court noted in Johnson, v. Commissioner, supra, 419, it is the duty of the habeas court to make such a determination.

Here, the record is clear that the petitioner has failed to provide evidence of either cause for his failure to raise these issues at trial or any resulting prejudice. Thus, he is not entitled to review of this claim on the merits.

The judgment is affirmed.

In this opinion the other judges concurred.

       In his writ of habeas corpus, the petitioner also claimed that he was illegally incarcerated due to ineffective assistance of his appellate counsel. This issue was not raised by the parties in the petitioner’s appeal to this court. Issues that are not briefed are deemed to be abandoned. See, e.g., State v. James, 211 Conn. 555, 588, 560 A.2d 426 (1989); State v. Gaines, 196 Conn. 395, 397-98 n.2, 493 A.2d 209 (1985).

       We note that the proper standard is that of “a reasonable probability” of a different outcome. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Aillon v. Meachum, 211 Conn. 352, 357, 559 A.2d 206 (1989). The habeas court’s citation to an improper standard is harmless, however, in light of our conclusion regarding the petitioner’s duty to demonstrate that his trial counsel’s conduct was deficient.

       “It is axiomatic that ‘ “the right to counsel is the right to the effective assistance of counsel.” ’ Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 . . . (1984), quoting McCann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970).” Phillips v. Warden, 220 Conn. 112, 132, 595 A.2d 1356 (1991).

       Attorney Corradino was an experienced trial attorney and now serves as a judge of the Superior Court.

       At the habeas hearing, the petitioner’s trial counsel stated: “I thought [the identification] would be very damaging to Mr. Chapman’s case, but I didn’t feel as though it would cause a great deal of difficulty for Mr. Daniels simply because it didn’t involve Mr. Daniels as far as being identified. But, in any case, I determined at that point in time to give the impression to the jury certainly and to the judge that it didn’t affect our case in any way


text:
    Frank S. Delio v. The Earth Garden Florist, Inc., et al.
    (10685)
    Daly, Landau and Freedman, Js.
    Argued April 2
    decision released June 30, 1992

      John R. Williams, for the appellant (plaintiff).

      Stephen A. Wise, for the appellees (defendants).
   Landau, J.

This is an appeal from the judgment of the Superior Court confirming an arbitration award in favor of the defendants and concomitantly denying the plaintiffs application to vacate the award. The issues to be addressed in this appeal are whether the trial court (1) improperly rendered judgment in favor of and against parties not named in the action, and (2) compelled the plaintiff to arbitrate matters he was not contractually bound to arbitrate.

The record discloses the following facts. The plaintiff, Frank Delio, the owner of the subject property and the sole shareholder of The Hidden Garden Florist II, Inc., leased the property to The Earth Garden Florist, Inc. Larry Blankenship personally guaranteed the lease. The property involved is a parcel of land on which a greenhouse and a separate two-family house are situated. On November 7,1986, the parties entered into the following three agreements which are integral parts of a single transaction: (1) a lease by the plaintiff to the defendants of the greenhouse but not of the residence; (2) a business purchase agreement involving the sale of the plaintiffs business to the defendants; and (3) a purchase and sale agreement in which the defendants received a three year option to purchase the entire premises. The lease contained the following arbitration clause: “Article 36 Arbitration Section 36.01 Any controversy or claim arising between the parties with respect to this lease unless other provision is made herein, shall be settled by arbitration in New Canaan in accordance with the laws of the state of Connecticut, pursuant to the rules of the American Arbitration Association and conducted in accordance with the rules of said Association. The party desiring arbitration shall do so by giving notice to that effect to the other party; said notice shall contain a specific description of the subject matter in dispute. All expenses of arbitration, including the expenses of witnesses shall be paid as awarded by the arbitrator(s) who shall be requested to include the payment of such expenses in the decision. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.”

On February 8, 1988, the defendants notified the plaintiff of their intent to exercise the option agreement. The parties agreed to a closing date of March 18,1988. The plaintiff failed to tender the property on that date although the defendants were ready, willing and able to close. Because the defendants exercised their option to purchase, they did not pay rent on March 1,1988, with the expectation that the rent would be adjusted at the March 18, 1988 closing. No objection was made to the defendants’ failure to pay rent, nor was a written notice of default, as required by article 15 of the lease, given to the defendants. On April 22, 1988, the defendants informed the plaintiff, in writing, that the plaintiff was in default of the lease, that there was no reason for the defendants to continue paying rent and that they were still anxious to purchase the property.

On October 25, 1989, the defendants renewed their exercise of the option by written notice, setting the closing at the New Canaan Bank and Trust Company on October 31, 1989. On the morning of October 31, the plaintiff indicated that he was unable to give clear title, would need thirty days to clear the title and for the first time demanded “18 months of unpaid rent.” The plaintiff again failed to tender the property and again the defendants were at all times ready, willing and able to close on the property.

On November 29, 1989, the plaintiff served the defendants with a notice to quit. On March 13, 1990, the plaintiff commenced an action to evict the defendants and for back rent. On May 5, 1990, the defendants filed a motion to stay the action pending arbitration pursuant to article 36 of the lease. Over the plaintiffs strenuous objections, the defendants’ renewal of the motion to stay was granted on June 26, 1990. During March and April of 1991, the arbitration of the defendants’ claims and the plaintiff’s claim for back rent was conducted with the full participation of both parties. Following the arbitration, a one page order was entered directing Delio and The Hidden Garden Florist II, Inc., to pay The Earth Garden Florist, Inc., Larry Blankenship and Katherine Blankenship $150,000. The Earth Garden Florist, Inc., and Larry Blankenship moved for the trial court to confirm the award and Delio moved for the trial court to vacate the award. This appeal followed.

In his first claim, the plaintiff asserts that the trial court was without jurisdiction to render judgment in favor of Katherine Blankenship and against The Hidden Garden Florist II, Inc., because neither was named as a party to the action. The trial court rendered judgment in favor of The Earth Garden Florist, Inc., Larry Blankenship and Katherine Blankenship and against Delio and The Hidden Garden Florist II, Inc. The only plaintiff named in this action is Delio and the only defendants named in this action are The Earth Garden Florist, Inc., and Larry Blankenship.

With respect to the trial court’s judgment in favor of Katherine Blankenship, we conclude that because she was not a named party, the trial court was without jurisdiction to render judgment in her favor. The jurisdiction of the trial court is limited to those parties expressly named in the action coming before it. General Motors Acceptance Corporation v. Pumphrey, 13 Conn. App. 223, 227, 535 A.2d 396 (1988). Until one is given notice of the actions or proceedings against him and is thereby given opportunity to appear and be heard, the court has no jurisdiction to proceed to judgment either for or against him even though it may have jurisdiction of the subject matter. “One who is not served with process does not have the status of a party to the proceeding. . . . A court has no jurisdiction over persons who have not been made parties to the action before it. See Simko v. Zoning Board of Appeals, 205 Conn. 413, 533 A.2d 879 (1987); Graham v. Zimmerman, 181 Conn. 367, 373, 435 A.2d 970 (1980).” General Motors Acceptance Corporation v. Pumphrey, supra, 227-28. We, therefore, vacate the judgment as it pertains to Katherine Blankenship. See Practice Book § 4183.

With respect to the claim that the trial court was without jurisdiction to render judgment against The Hidden Garden Florist II, Inc., we conclude that the plaintiff is not the proper party to raise this claim. The plaintiff was named personally in this action and does not have standing to challenge the judgment as it applies to a third party, despite the fact that he is the sole shareholder of that third party.

“ ‘ “Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented.” ’ ” DiBonaventura v. Zoning Board of Appeals, 24 Conn. App. 369, 373-74, 588 A.2d 244, cert. denied, 219 Conn. 903, 593 A.2d 129 (1991), citing Board of Pardons v. Freedom of Information Commission, 210 Conn. 646, 648-49, 556 A.2d 1020 (1989).

The general rule is that one party has no standing to raise another’s rights. See State v. Williams, 206 Conn. 203, 207, 536 A.2d 583 (1988). “ ‘When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue . . . .’ Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 492, 400 A.2d 726 (1978). ‘[Standing is] ordinarily held to have been met when a complainant makes a colorable claim of direct injury he . . . is likely to suffer . . . .’ Maloney v. Pac, 183 Conn. 313, 321, 439 A.2d 349 (1981).” Malerba v. Cessna Aircraft Co., 210 Conn. 189, 192, 554 A.2d 1048 (1989).

In accordance with these guidelines, we must determine whether Delio has made any colorable claims of direct injury that he is likely to suffer in his individual capacity as a result of the judgment rendered against The Hidden Garden Florist II, Inc. Admittedly, any judgment entered against The Hidden Garden Florist II, Inc., is the responsibility of the plaintiff as the sole shareholder and will be paid out of the corporate assets of The Hidden Garden Florist II, Inc. This, however, is insufficient to meet the test of Maloney v. Pac, supra, that the party contesting the judgment suffer direct injury in his individual capacity. The plaintiff will be required to pay the judgment rendered against The Hidden Garden Florist II, Inc., out of its corporate assets, in his capacity as the sole shareholder, not in his capacity as an individual. Because we conclude that the plaintiff was without authority to challenge the judgment rendered against The Hidden Garden Florist II, Inc., we do not address the merits of this claim.

The plaintiffs second claim, that the trial court compelled him to arbitrate matters that he was not contractually bound to arbitrate, merits little discussion. The plaintiff argues that the arbitration clause in the lease, article 36, was applicable only to disputes pertaining to the lease itself and not to disputes pertaining to the business purchase agreement or the purchase and sale agreement. We are not persuaded.

We note that the plaintiff did not appeal from the trial court order compelling him to proceed to arbitration, but rather chose to participate in the arbitration as directed by the trial court. The plaintiff does not contest the trial court’s right to compel arbitration. Rather he challenges the scope of the subject matter he was compelled by the trial court to arbitrate.

We adhere to the established rule that “arbitrability of a dispute is ordinarily a legal question for the courts. . . Beloff v. Progressive Casualty Ins. Co., 203 Conn. 45, 54, 523 A.2d 477 (1987); see also Gaudet v. Safeco Ins. Co., 219 Conn. 391, 399, 593 A.2d 1362 (1991); Welch Group, Inc. v. Creative Drywall, Inc., 215 Conn. 464, 467, 576 A.2d 153 (1990); Frager v. Pennsylvania General Ins. Co., 155 Conn. 270, 274, 231 A.2d 531 (1967). “[A]n order directing the parties to proceed with arbitration is a final judgment from which one can appeal. Dewart v. Northeastern Gas Transmission Co., 139 Conn. 512, 514, 95 A.2d 381 (1953).” Quinn v. Middlesex Ins. Co., 16 Conn. App. 209, 211, 547 A.2d 95, cert. denied, 209 Conn. 817, 550 A.2d 1085 (1988). In Quinn v. Middlesex Ins. Co., supra, the plaintiff, rather than proceeding to arbitration, and then challenging an adverse arbitration award, properly appealed to this court directly from the trial court’s order to proceed to arbitration of an uninsured motorist claim. Here, the plaintiff’s failure to appeal directly from the trial court order compelling arbitration precludes him from pressing this claim on appeal.

The judgment, as it pertains to Katherine Blankenship, is vacated; the remainder of the judgment is affirmed.

In this opinion the other judges concurred.

       The property was foreclosed on by Mechanics and Farmers Savings Bank on July 13, 1990.

       Article 34 of the lease states in pertinent part: “It is understood and agreed between the parties hereof that the within lease, contract with Hidden Garden Florist II, Inc. and contract to purchase the demised premises are integral parts of a single transaction, and that a default by either party under any of the said agreements shall be construed to create a default of the others.”

       The defendants were to conduct a greenhouse and florist business on the premises. The monthly rent was $3200.

       The sale of the business for $125,000 included the fixtures and equipment, the business goodwill, and a covenant not to compete.

       The defendants paid the plaintiff $50,000 for the option to purchase the entire premises for the amount of $600,000 during the three year term of the lease. On April 7, 1986, a modification agreement was entered into whereby the purchase price of the property was reduced to $550,000.

       The plaintiff argued that the arbitration submission authorized by the trial court far exceeded the terms of the arbitration agreement in the lease.

       The July 13,1990 foreclosure on the subject property; see footnote 1, supra; effectively terminated the plaintiff’s action to evict the defendants.

       Practice Book § 4183 provides in relevant part: “The [appellate] court may, on its own motion, modify or vacate any order made by the trial court, or a judge thereof, in relation to the prosecution of the appeal.”

       Similarly, our Supreme Court noted in Oliva v. Aetna Casualty & Surety Co., 181 Conn. 37, 39-40, 434 A.2d 304 (1980), that “[t]he function of the court ... is to determine, in the first instance, whether the issue is arbitrable. If the court so decides, an order compelling arbitration is issued. If, on the other hand, the court decides that the issue is not arbitrable, it can proceed to decide the issue on the merits. In such a case, however, the plaintiff can appeal on the ground that the court erred in concluding that the issue was not arbitrable.” See also Security Ins. Co. of Hartford v. DeLaurentis, 202 Conn. 178, 183, 520 A.2d 202 (1987); Wilson v. Security Ins. Group, 199 Conn. 618, 622, 509 A.2d 467 (1986).