author: Dupont, C. J.

text:
    State of Connecticut v. Robert W. Haynes
    (4185)
    Dupont, C. J., Hull and Spallone, Js.
    Argued June 4
    decision released August 5, 1986

      Jefferson Hanna III, for the appellant (defendant).

      Lawrence J. Tytla, assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

The defendant pleaded guilty, under the Alford doctrine, to the crime of the sale of cocaine, a violation of General Statutes § 21a-277 (a). See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). The plea immediately followed the denial of his motion to dismiss. The motion to dismiss was based on his claim that there was an unreasonable delay between the date of the crime and the date of his arrest in violation of his due process rights under the fifth and fourteenth amendments to the United States constitution. The defendant, the state and the court all assumed that his guilty plea preserved his right to appeal from the denial of the motion to dismiss.

The proper preservation of the defendant’s right to appeal from the denial of this motion to dismiss was by way of General Statutes § 54-94a which provides for a plea of nolo contendere conditional on his right to take an appeal from that denial. The first issue to be decided, therefore, is whether the defendant waived his right to appeal from the denial of his motion to dismiss because he pleaded guilty, rather than nolo contendere as provided in the statute.

“As a general rule, an unconditional plea of guilty or nolo contendere, intelligently and voluntarily made, operates as a waiver of all nonjurisdictional defects and bars the later assertion of constitutional challenges to pretrial proceedings.” (Emphasis in original; footnote omitted.) State v. Madera, 198 Conn. 92, 97, 503 A.2d 136 (1985); State v. Satti, 2 Conn. App. 219, 222, 477 A.2d 144 (1984). We are convinced that the general rule should not be followed in this case because of its particular facts.

In Madera, the defendant, pursuant to General Statutes § 54-94a, “expressly bargained for appellate review ... ‘on the merits’ ” of the trial court’s rulings on his motions to suppress and dismiss. State v. Madera, supra, 107. If it becomes impossible to undertake such a review, there is a failure of consideration in the plea bargaining process. Id. Here, although the defendant made it clear to the court that he was expressly bargaining for a review of the denial of his motion to dismiss, he was precluded by the court from using the statutory tool which would have allowed the review. The defendant in this case could not intelligently plead guilty without knowing that he could not thereafter attack the denial of his motion to dismiss. His decision to plead guilty was predicated on the court’s assertion that appellate review of the denial of the motion to dismiss was preserved. We conclude that he is entitled to appellate review, and also conclude that the record is sufficient to undertake that review.

The merits of this appeal relate to the defendant’s claim that a two and one-half month delay between the date of the crime and the date of his arrest deprived him of due process. No testimony or evidence was presented to the trial court to indicate that the delay prejudiced the defendant, and the hearing on the motion to dismiss was confined to oral argument of the parties. The oral argument and the brief of the defendant center on the fact that the claimed delay interfered with the defendant’s ability to use alibi as a defense. No facts or evidence were ever presented to the court to substantiate that claim.

A claimed due process violation because of prejudicial prearrest delay requires a showing that substantial prejudice resulted from a delay, the purpose of which was to gain a tactical advantage over the defendant. State v. Littlejohn, 199 Conn. 631, 646, 508 A.2d 1376 (1986); State v. Morrill, 197 Conn. 507, 522, 498 A.2d 76 (1985).

There is absolutely no evidence in this case that a delay of less than three months prejudiced the defendant or was, in any way, connected to obtaining a tactical advantage over him by the state. A delay of nearly twenty-one months between the date of the crime and the date of the arrest has been held insufficient to dismiss charges against a defendant, absent a showing of any specific prejudice to the defendant; State v. Aspinall, 6 Conn. App. 546, 549, 506 A.2d 1063 (1986); as has a delay of more than five years. State v. Littlejohn, supra. The trial court properly denied the defendant’s motion to dismiss.

There is no error.

In this opinion the other judges concurred.

       The court stated that it would not accept a plea of nolo contendere, but that it would accept an Alford plea. The defendant himself then told the court that he wished “to appeal the motion to dismiss.” The court responded by observing: “I would think you could reserve rights to appeal the motion to dismiss based on the ground of an unreasonable delay between the date of the incident and the date of the arrest.” The defendant then said he wished to plead guilty and the court then asked the defendant if he understood that, after such a plea, he would not be able to appeal anything other than the denial of the motion. The court thereafter canvassed the guilty plea. Neither party or the court ever mentioned General Statutes § 54-94a.

       The record in State v. Satti, 2 Conn. App. 219, 477 A.2d 144 (1984), did not, unlike this case, provide a basis for a conclusion that the defendant did not intend to waive appellate review.

       The motion to dismiss was not filed in writing as required by Practice Book § 812. The court, nevertheless, considered the merits of the motion.


source: Caselaw Access Project

author: Borden, J.

license: Public Domain

text:
    Daniel V. Presnick v. Ralph Esposito et al. Ralph Esposito et al. v. Daniel V. Presnick
    (4221) (4399)
    Borden, Daly and Bieluch, Js.

      Argued June 12
    decision released August 5, 1986

      Daniel V. Presnick, pro se, the appellant (plaintiff in the first case, defendant in the second case).

      James R. Smith, for the appellees (defendants in the first case, plaintiffs in the second case).
   Borden, J.

These two appeals present the common issue of whether the trial court may preclude an attorney from representing only himself in litigation before the court. In each case, the court entered an order effectively barring the attorney from doing so. We find error in each appeal.

In the first case, Daniel V. Presnick, who is an attorney, sued Ralph and Rita Esposito for legal fees for services which he rendered to them in another case. Presnick did not sign the summons, but he entered a pro se appearance and signed the complaint. The Espositos filed an answer, and also filed a counterclaim based on alleged malpractice by Presnick in his representation of them. In the second case, the Espositos brought a separate suit against Presnick based on essentially the same claim of malpractice as was alleged in their counterclaim. Presnick appeared pro se and filed an answer. The cases were consolidated by the trial court.

In both cases, the court, Fracasse, J., sua sponte ordered Presnick to retain “outside counsel” to represent him. Thereafter, attorney David M. Presnick, who is the brother of Daniel V. Presnick, entered an appearance for Presnick in each case. David M. Presnick had the same office address and business telephone number as Daniel V. Presnick. The court concluded that David M. Presnick and Daniel V. Presnick were associated in the same law firm and, therefore, that Daniel V. Presnick had not complied with the court’s order in each case. Accordingly, the court, Fracasse, J., rendered a judgment of nonsuit against Presnick in the first case and a default against him in the second case. The default was followed by a hearing in damages. The parties stipulated to a judgment of $700 against Presnick, subject, however, to Presnick’s right to challenge the default judgment on appeal. These appeals followed.

Presnick argues that the trial court improperly barred him from representing himself in these cases by ordering him to retain other counsel. We agree.

We do not believe that there is any current basis in our law for the proposition that an attorney who seeks to represent only himself in litigation may not be permitted to proceed pro se. The ethical rules and the authorities on which the trial court relied, and on which the Espositos rely in this court, are inapplicable.

Disciplinary Rules 5-101 and 5-102 of the Code of Professional Responsibility address the situation in which an attorney is faced with the potentiality or actuality of dual roles, namely, as attorney for a client and as a witness in the client’s case. We do not read those provisions as addressing the situation in which the attorney is the sole client and, thus, where the attorney is not cast in a dual role. This reading derives from the language of the disciplinary rules focusing on the question of whether a lawyer may “accept employment” or “undertak[e] employment.” See footnote 3, supra. A lawyer who represents only himself in his own case cannot be viewed as either accepting or undertaking employment. Our cases in which the court has cautioned that an attorney should not also be a witness are, with one exception, cases in which the attorney was acting as counsel on behalf of a client and the attorney, or his law partner, also testified as a witness for the client. See, e.g., Lebowitz v. McPike, 151 Conn. 566, 570-71, 201 A.2d 469 (1964); Miller v. Urban, 123 Conn. 331, 333, 195 A. 193 (1937); Jennings Co., Inc. v. DiGenova, 107 Conn. 491, 496-501, 141 A. 866 (1928); Nanos v. Harrison, 97 Conn. 529, 530, 117 A. 803 (1922). In none of these cases was the attorney-witness also the sole client, as in this case.

Indeed, the reasons underlying the general rule prohibiting an attorney from testifying in his client’s case do not apply where the attorney is the client. Those reasons have been identified by our Supreme Court in Jennings Co., Inc. v. DiGenova, supra. One reason is that it is unfair to the client that his case be presented through a witness whom the trier of fact would necessarily view as interested because of the witness’ zeal of advocacy and likely interest in the result of the case. Id., 497. A second reason is one of public policy: permitting an attorney who is trying a case also to be a witness in establishing its facts will visit on the legal profession public distrust and suspicion arising from the attorney’s dual role. That is the reason which Professor Wigmore believed to be “the most potent reason for the prohibition of the attorney as a witness on behalf of his client. . . . ” Id., 498, citing 4 Wigmore, Evidence (2d Ed.) § 1911. “The public will be apt to think that the lawyer, whether he is an active partner in the conduct of the trial and also a material witness, or an inactive partner and a material witness, will be inclined to warp the truth in the interest of his client.” Jennings Co., Inc. v. DiGenova, supra, 498-99. The third reason for the rule is “to avoid the appearance of wrongdoing.” Id., 499. We do not believe that any of these reasons applies where the attorney seeks only to represent himself in his own case.

The case of Thresher v. Stonington Savings Bank, 68 Conn. 201, 206, 36 A. 38 (1896), is the sole exception in our state’s jurisprudence to the line of authority which limits the general prohibitory rule to the situation in which the attorney-witness is performing a dual role as counsel for a client and as a material witness in the client’s case. In Thresher, the plaintiff, who was an attorney, sued on a real estate contract to which he was a party. The Supreme Court found no error in the trial court’s judgment in his favor. In dictum, however, the court noted that, although a “party to an action has a right to appear in court and try his own cause” despite the inconvenience it may cause in his examination as a witness; id., 206; “[i]n this case however, the party to the suit was also a practicing attorney at law; and the wholesome rule of professional etiquette which holds the positions of trial lawyer and material witness to be incompatible, applies as well, perhaps more strongly, to a case where the trial lawyer is his own client. The violation of this rule is, unfortunately, not without precedent, but it should be discountenanced by court and bar.” (Emphasis added.) Id.

We do not believe that this language of Thresher is currently viable law. First, it is clearly dictum, and the court did not suggest that the judgment rendered in the attorney-party’s favor be set aside. Second, it refers to the rule as one merely of “professional etiquette,” rather than of ethical behavior enforceable by barring the attorney from appearing pro se. Third, to the extent that the court in Thresher was using the phrase, “professional etiquette,” as an equivalent to our current code of professional responsibility, it would not control this case because, as we noted above, the current rules regarding an attorney-witness do not reach the situation in which the attorney represents himself. Fourth, our Supreme Court has in recent years not seen fit even to comment on the fact that an attorney represented himself in simultaneous jury and court trials. See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cole, 189 Conn. 518, 457 A.2d 656 (1983). In that case, Cole, who was an attorney of long standing, represented himself both in the trial court and in the appeal, and that fact was well known to the Justices of the Supreme Court.

There is error on each appeal, the judgments are set aside and the cases are remanded for further proceedings according to law.

In this opinion the other judges concurred.

       Presnick claims on appeal that the court reached the conclusion that David M. Presnick and he were associated in the same law firm without a hearing and without any basis. In view of our disposition of these appeals, we need not reach that issue.

       The trial court also relied in part on the rule that an attorney may not sign his own writ and summons. See Willard v. West Hartford, 135 Conn. 303, 305, 63 A.2d 847 (1949); Low v. Madison, 135 Conn. 1, 6, 60 A.2d 774 (1948); Doolittle v. Clark, 47 Conn. 316, 317 (1879). In this respect, the court misperceived the record before it in the case in which Presnick was the plaintiff. Our examination of that trial court file indicates that, although Presnick signed the complaint, the action was begun by a summons signed by a different commissioner of the Superior Court, whose name is illegible and is not typewritten on the form JD-CV-1. Thus, we need not discuss whether this defect was waived by the failure of the Espositos timely to raise it. Furthermore, the cases which establish that rule do not go so far as to say that, once an attorney’s action has been properly instituted by a writ and summons signed by another attorney, the plaintiff may not sign the pleadings, such as the complaint, and represent himself in trying the case.

       Disciplinary Rules DR 5-101 and DR 5-102 provide: “DR 5-101 Refusing Employment When the Interests of the Lawyer May Impair His Independent Professional Judgment.
      “(A) Except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests.
      “(B) A lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness, except that he may undertake the employment and he or a lawyer in his firm may testify:
      “(1) If the testimony will relate solely to an uncontested matter.
      “(2) If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony.
      “(3) If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client.
      “DR 5-102 Withdrawal as Counsel When the Lawyer Becomes a Witness.
      “(A) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR 5-101 (B).
      “(B) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm may be called as a witness other than on behalf of his client, he may continue the representation until it is apparent that his testimony is or may be prejudicial to his client.”

       It maybe that the oft-quoted, unattributed proverb, “He who is his own lawyer has a fool for a client”; McNamara, Ragbag of Legal Quotations, p. 22; will apply to Presnick in these cases. Foolishness, however, has never been considered to be a basis for banishment from the counsel table.


author: Bieluch, J.

text:
    Jeffrey M. Stambovsky v. Saddle Peak Productions, Inc., et al. David L. Bain v. Saddle Peak Productions, Inc.
    (4137) (4138)
    Hull, Daly and Bieluch, Js.
    Argued April 1
    decision released August 5, 1986

      Ralph C. Crozier, for the appellant (named defendant in each case).

      Charles R. Ebersol, Jr., for the appellee (plaintiff in the first case).

      William J. Manasse, for the appellee (plaintiff in the second case).
   Bieluch, J.

These two appeals arise out of separate actions, consolidated in the trial court, regarding the sale of a parcel of residential real estate consisting of 8.807 acres and located in New Milford. In the first action, Stambovsky v. Saddle Peak Productions, Inc., et al. (hereinafter Stambovsky), the plaintiff sought specific performance of his contract to purchase the property in question from the named defendant, as well as damages and attorney’s fees. In the second action, Bain v. Saddle Peak Productions, Inc. (hereinafter Bain), the plaintiff, a real estate broker, sought a commission of 6 percent from the defendant pursuant to their brokerage agreement as the result of his procurement of a buyer, namely Stambovsky, who was ready, willing and able to purchase the defendant’s real estate for the sum of $215,000 in accordance with the terms of a purchase and sale agreement. After a trial to the court, judgment was rendered for the plaintiff on the complaint and on the counterclaim in both cases. From these judgments, the corporate defendant has appealed in each case. In Stambovsky, the defendant claims that the court erred: (1) in finding that one of the two directors, officers and stockholders of Saddle Peak had the authority to sign the purchase and sale agreement; and (2) in awarding attorney’s fees to the plaintiff. In Bain, the defendant claims that the court erred in concluding that the listing agreement between the parties satisfied the requirements of General Statutes § 20-325a (b). We find no error in either appeal.

The trial court found the following facts. On January 6, 1984, the corporate defendant entered into an open real estate listing contract with Bain, a licensed real estate broker, through its secretary and treasurer, Reiko Douglas. The listing agreement provided that Bain would receive a commission of 6 percent from the defendant if he procured a buyer who was ready, willing and able to purchase the property on the terms set forth or upon such other terms as were acceptable to the defendant. As a result of Bain’s efforts, on April 23, 1984, Stambovsky contracted to purchase the property from the defendant for the sum of $215,000. A deposit of $21,500 was given by Stambovsky upon the execution of the contract. The purchase agreement was signed on behalf of the defendant by Reiko Douglas as “president” of the corporation. In fact, Jack Douglas, who was present at the signing, was the president of Saddle Peak.

Subsequent to the signing of the contract for purchase of the property, Stambovsky obtained a mortgage commitment subject to several standard conditions, one of which was that a water test be performed on the property. The seller, however, refused to permit access to the property for the test to be performed, and for that reason, the transfer of the property could not take place on May 21,1984, the date originally specified for the closing of title. Faced with this inability to comply with his lender’s conditions, Stambovsky secured the balance of the purchase price due, $193,500, from a commercial lender without the use of a mortgage as collateral. This amount was tendered to the defendant on May 25, 1984, but it refused to convey the land.

On June 1,1984, the defendant permitted Stambovsky to have a water test taken. A satisfactory result was obtained on the next day. A closing was then scheduled for June 8,1984. At that time, the defendant, through Jack Douglas, refused to convey the property because Stambovsky’s certified checks were payable to the defendant’s attorney as trustee, rather than to Saddle Peak directly. Jack Douglas then discharged Saddle Peak’s attorney and refused to complete the conveyance. Another closing was scheduled for June 11,1984. Once again, however, the defendant refused to convey the property even though Stambovsky was ready, willing and able to complete the purchase. These actions were then filed.

The trial court found that Bain had procured a ready, willing and able buyer and was, therefore, entitled to his commission. The court also concluded that Jack Douglas, acting on behalf of Saddle Peak as president, had ratified the contract executed by his wife, Reiko Douglas, mistakenly identified as “president” of the corporation for the purchase and sale of the property, and that Stambovsky had fully performed his part of the contract. The court further concluded that in neither action had the defendant proved its special defenses or counterclaim and awarded damages to each plaintiff.

The defendant’s claims of error are, for the most part, thinly veiled attempts to retry the facts of these cases, “a practice against which we have apparently inveighed in vain.” MacArthur/Nathan Associates v. Edson Realty, Inc., 3 Conn. App. 675, 676, 491 A.2d 1111 (1985).

A review of the record demonstrates that the court was well within its discretion in finding, as it did, that when Reiko Douglas signed both the listing agreement and the contract for the purchase and sale of the property, she did so with the authorization of the corporation of which she and her husband were the sole directors, officers and shareholders. Despite the lack of a formal corporate resolution to sell the property, the trial court reasonably found from the evidence that all the directors, officers and stockholders authorized the agreement listing the property with Bain and further authorized its sale, through Bain’s agency, to Stambovsky. The open listing agreement identified the owner of the property as “Saddle Peak Productions.” Referring to: (1) the corporate address of the owner given on the listing; (2) the signature of Reiko Douglas on behalf of the owner while she was the corporation’s secretary and treasurer; (3) the insertion of the listed price by Jack Douglas who was its president; and (4) the identification of Reiko Douglas and Jack Douglas as the sole directors, officers and stockholders of the corporation, the court concluded that Saddle Peak Productions and Saddle Peak Productions, Inc., were one and the same entity. The court also concluded that Reiko Douglas clearly had authority to sign the listing on behalf of the corporation, which she purported to do in the presence of Jack Douglas who acquiesced in the corporate agreement when he typed the sales price in the blank provided, that act constituting confirmation of his agreement on behalf of the corporation to all other terms.

In concluding that the agreement for the sale of the property to Stambovsky was authorized by the directors and duly executed by an officer of the corporation, the court found that Reiko Douglas signed the contract as an officer, which she was. Her office was misidentified as president when she or Jack Douglas so indicated to the corporation’s attorney for the purchase and sale contract. Both were present at the execution of this document and, by their conduct, approved its terms and confirmed the authority of the signature of Reiko Douglas on behalf of the corporation, albeit she was, through their error and information, identified as the president rather than the secretary and treasurer. Since they were the defendant’s only directors, their approval of the contract expressed the authorization of the board of directors, as the court concluded, to the terms, conditions and consideration specified in the agreement for the sale of the corporate property as required by the provisions of General Statutes § 33-372 (c).

There is no error on either appeal.

In this opinion the other judges concurred.

       This action was originally instituted against the corporate defendant, Saddle Peak, as well as against Reiko Douglas, a/k/a Reiko Crickard, and Jack Douglas, a/k/a Douglas Crickard. We note that Douglas Crickard, in the judgment file, is erroneously named Jack Crickard. The Douglases were the sole directors, officers and stockholders of Saddle Peak. The action was subsequently withdrawn as against them, however, and they are not parties to the Stambovsky appeal.

       Although the two preliminary statements of the issues filed by the defendant contain a total of six issues, the two briefs which it has filed raise in combination only these broad issues. Furthermore, the two arguments in the Stambovsky brief are not divided by points presented as required by Practice Book § 3060F (d).

       This was done because several encumbrances existing on the property were to be paid by the defendant’s attorney from the sale proceeds at the closing in order to transfer a clear title.


author: Hull, J.

text:
    State of Connecticut v. Gladys Horton
    (3347)
    Dupont, C. J., Hull and Spallone, Js.
    Argued June 6
    decision released August 5, 1986

      Louis S. Avitabile, for the appellant (defendant).

      David Shepack, deputy assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, Susan C. Marks, assistant state’s attorney, and Thomas Miano, former assistant state’s attorney, for the appellee (state).
   Hull, J.

This case involves the issue of whether the defendant “opened the door” to extrinsic evidence of prior larcenous misconduct when she denied, on direct examination, that she had ever taken anything from anyone’s home other than on one previous occasion. After a jury trial, the defendant was convicted of larceny in the first degree, a violation of General Statutes § 53a-122 (a) (2), based on her wrongful taking on October 5,1982, of over $10,000 worth of jewelry from Beatrice Goodrich, an invalid for whom she worked as a nurse’s aid. The defendant appeals from the judgment of conviction rendered on the verdict claiming that the trial court committed reversible error by allowing the state to impeach her by extrinsic evidence of welfare fraud and by authorizing the jury in its charge to consider that testimony.

The defendant’s claims arose in the following factual context. At trial, the state introduced evidence during its case-in-chief that on August 7,1981, the defendant took jewelry from Edna Hart, another invalid for whom she had worked as a nurse’s aide. While presenting her case, the defendant testified on direct examination and admitted the 1981 theft, but denied that in the seventeen years of her career as a nurse’s aide she had ever taken anything from any other home before the incident of August 7,1981. The defendant’s attorney then asked her whether she had taken anything from any home where she was assigned to work between August 7, 1981, and her arrest on the pending charges. The defendant replied: “No, I haven’t taken anything else, period.”

On cross-examination, over the objection of defense counsel that the testimony went to a collateral issue, the state was allowed to ask the defendant about working for Nurse Registry, Incorporated, while receiving state welfare and about filling out state welfare forms as to where she was working between 1980 and August, 1982. The defendant admitted that she received welfare while working on and off from 1980 to August, 1982. She claimed, however, that she told the department of income maintenance about all sources of income and that she did not make any false representations.

In its rebuttal case, the state offered Trooper John Donahue as a witness to testify that the defendant had been involved in four welfare redetermination interviews and that she had not mentioned her work for Nurse Registry, Incorporated, during any of the interviews. The defendant objected. The trial court found that on direct examination the defendant had testified that she had not taken anything from anyone during seventeen or eighteen years of her nursing career prior to 1981, and that she had claimed that the only time she had taken anything was the item taken in 1981. On cross-examination she had claimed to have given full disclosure of her work history to the department of income maintenance. The court concluded, based on these findings, that Donahue’s proffered testimony was in direct contradiction to that given by the defendant and, accordingly, it overruled the objection. The defendant excepted on the grounds of relevancy and materiality. Donahue then testified that department of income maintenance records showed that the defendant had not reported her employment with Nurse Registry, Incorporated, although the Registry’s records indicated that she had been employed periodically while receiving welfare benefits. He also stated that his investigation showed that the department of income maintenance gave money to the defendant to which she was not entitled. In its instructions to the jury, the court charged that this testimony could be used to evaluate whether the defendant’s testimony that she never took anything should be credited. The defendant excepted to this portion of the charge.

The defendant first argues that the trial court erred in allowing the state to introduce extrinsic evidence to show a prior act of misconduct, the alleged welfare fraud. The state claims that this claim is not reviewable because the defendant did not distinctly object to admission of the testimony at trial. We disagree with the state’s argument. “Evidentiary rulings ordinarily must be preserved for appellate review by an exception. State v. Hoffler, 174 Conn. 452, 461, 389 A.2d 1257 (1978). ‘The purpose of requiring an attorney to except is not merely formal. An exception serves the important function of alerting the trial court to error while there is time to correct it without ordering a retrial.’ State v. Jones, 193 Conn. 70, 88, 475 A.2d 1087 (1984).” State v. Jackson, 3 Conn. App. 132, 135, 485 A.2d 934 (1985). Here, the defendant objected to the testimony regarding welfare fraud and her subsequent arrest arguing that the evidence was irrelevant, immaterial and that “the court has to cut off some things that are collateral . . . .” She also excepted on relevancy and materiality grounds to the trial court’s subsequent ruling admitting the evidence. In our view of the case, the defendant’s objection, although not as precise as it could have been, did suffice to alert the trial court to the evidentiary issue involved in this appeal. Accordingly, we will review the defendant’s related claims that the trial court erred in admitting Donahue's testimony and in authorizing the jury to consider it.

It is beyond dispute that a witness may be impeached by specific acts of misconduct which relate to veracity, but not by those that merely illustrate general bad behavior. State v. Roma, 199 Conn. 110, 116-17, 505 A.2d 717 (1986); Martyn v. Donlin, 151 Conn. 402, 408, 198 A.2d 700 (1964); Vogel v. Sylvester, 148 Conn. 666, 675, 174 A.2d 122 (1961); Tait & LaPlante, Handbook of Connecticut Evidence § 7.22a. "A . . . witness [is not] subject to cross-examination concerning collateral bad acts unless they [involve] veracity; State v. Orsini, 187 Conn. 264, 268, 445 A.2d 887, cert. denied, 459 U.S. 861, 103 S. Ct. 136, 74 L. Ed. 2d 116 (1982) State v. Perry, 195 Conn. 505, 523, 488 A.2d 1256 (1985); see generally McCormick, Evidence (3d Ed.) § 42. The only way to prove misconduct of a witness for impeachment purposes, however, is through cross-examination of the witness himself. Martyn v. Donlin, supra, 408. It has long been the rule in Connecticut that extrinsic evidence may not be used to contradict the testimony of a witness with regard to a particular act of misconduct. Shailer v. Bullock, 78 Conn. 65, 70, 61 A. 65 (1905). “[I]f the witness stands his ground and denies the alleged misconduct, the examiner must 'take his answer’ not that he may not further cross-examine to extract an admission, but in the sense that he may not call other witnesses to prove the discrediting acts.” McCormick, supra, § 42.

The state does not dispute that extrinsic evidence is generally inadmissible to prove particular acts of misconduct where those acts are offered solely for impeachment. Rather, it urges this court to create an exception to this long standing rule by holding that extrinsic evidence on a topic may be introduced where the defendant "opens the door” to that evidence by testifying about it on direct. In support of its argument, the state points to cases where our Supreme Court has stated that a party “opens the door” to otherwise inadmissible evidence by initiating discussion about it. See State v. Graham, 200 Conn. 9, 13, 509 A.2d 493 (1986); State v. Glenn, 194 Conn. 483, 498, 481 A.2d 741 (1984). In those cases, however, the Supreme Court discussed cross-examination about the topic, not introduction of extrinsic evidence on it. We view this as a vital distinction.

As discussed above, our Supreme Court has repeatedly held that acts of misconduct may not be proved extrinsically. State v. Crane, 169 Conn. 242, 245, 362 A.2d 843 (1975); Martyn v. Donlin, supra, 408; Shailer v. Bullock, supra, 70. In the face of this precedent, it is not proper for this court to establish the exception urged by the state. State v. Knighton, 7 Conn. App. 223, 229, 508 A.2d 772 (1986); D’Arcy v. Shugrue, 5 Conn. App. 12, 29, 496 A.2d 967, cert. dismissed, 197 Conn. 812, 499 A.2d 56 (1985). Accordingly, we conclude that the trial court erred in admitting Donahue’s testimony about the welfare fraud and in charging the jury that it could consider this testimony.

Having found that the trial court erred, we now consider whether these errors were harmful to the defendant. Where, as here, the error is not of constitutional dimension; see State v. Smith, 198 Conn. 147, 156, 502 A.2d 874 (1985) (rule concerning the admission of evidence of other crimes is a rule of evidence and not of constitutional law); the defendant bears the burden of demonstrating that it was harmful. State v. Januszewski, 182 Conn. 142, 174, 438 A.2d 679, cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981). She has not met this burden. In addition to the improperly admitted evidence, the jury had before it testimony concerning a prior theft the defendant admitted to having committed under circumstances very similar to those alleged by the state in the charges for which the defendant was being tried. Additionally, the defendant admitted while testifying that she had lied to the police when they first confronted her with the 1981 theft charges. Accordingly, even without the improperly admitted testimony, the defendant’s credibility had been thoroughly impeached. Finally, there was substantial evidence of the defendant’s guilt: after the theft, jewelry that matched the description of that stolen was seen in the defendant’s possession, and she did not report to work as scheduled on October 6, 1982. Under these circumstances, we cannot say that the erroneous actions of the court likely affected the result. State v. Talton, 197 Conn. 280, 289, 497 A.2d 35 (1985). Accordingly, we conclude that the admission of Donahue’s testimony, and the corresponding charge to the jury, while erroneous, were harmless.

There is no error.

In this opinion the other judges concurred.

       The defendant also claims that the testimony should not have been admitted because she was not convicted of “welfare fraud” and, therefore, any fraud was “non-existent.” This ground for excluding the evidence, however, was not raised at the trial level. Additionally, the defendant has not made a sufficient showing that she was deprived of a fundamental right and a fair trial so as to persuade this court to invoke its “principled appellate discretion”; State v. Cosby, 6 Conn. App. 164, 172-74, 504 A.2d 1071 (1986); and review her claim even absent the appropriate objection and exception. Accordingly, we do not consider this claim.


author: Spallone, J.

text:
    Mavis Gillespie v. Daryl Gillespie
    (4653)
    Dupont, C. J., Borden and Spallone, Js.

      Submitted on briefs June 13
    decision released August 5, 1986

      Vincent T. McManus, Jr., filed a brief for the appellant (defendant).

      Elizabeth Dee Bailey filed a brief for the appellee (plaintiff).
   Spallone, J.

The defendant is appealing from the decision of the trial court finding him in contempt and from the court’s denial of his motion to modify a support order.

The defendant alleges that the trial court erred (1) when it assumed, through contempt proceedings, jurisdiction to enforce support orders for children who had already attained the age of majority, (2) in concluding that the defendant’s acts in not paying support for children who reached the age of majority constituted contempt, and (3) in denying his motion to modify when the previous orders were void ab initio and when the youngest child of the marriage was effectively emancipated.

The facts pertinent to this appeal are as follows. The marriage of the parties was dissolved on May 24,1982. The judgment of dissolution included an order that the defendant pay to the plaintiff “$75 per week for all of said minor children until the youngest living child reaches 18 years of age at which time all support shall cease.” There were three minor children, issue of the marriage, at the date of the dissolution. The custody of those children was granted to the plaintiff. The judgment was rendered pursuant to an oral stipulation.

On January 7,1983, the defendant was incarcerated for failure to appear in court, as ordered, to show cause why he should not be found in contempt for failure to make any payments to the plaintiff since the date of the decree of dissolution. On the same day, the defendant agreed to pay the sum of $3500 towards the arrearage and, in fact, did pay this sum in full by March 3, 1983.

On March 13,1983, the oldest of the three minor children reached the age of eighteen. The defendant took no steps to reduce the $75 per week child support order for the two remaining minor children. The defendant was served with a total of six contempt citations. Each of the first five contempt proceedings concluded with the defendant’s acknowledgment that he was in arrears and with his agreements to make payments toward the arrearage. The agreements were rarely kept. Further, at no time from the date of the original order, May 24, 1982, until September 11,1985, did the defendant contest the jurisdiction of the court to render and to enforce by contempt proceeding the child support order originally rendered by the court. The defendant made no motions to modify the child support order until September 11, 1985, despite the fact that two of the children, by that date, had attained their majority, the first, as indicated above, on March 13,1983, and the second on. February 22, 1984.

On September 9, 1985, the defendant appeared in court in response to the sixth contempt citation, at which time the court found an arrearage of $3240, after which the defendant paid the plaintiff $600.

On September 16,1985, the defendant filed, for the first time, a motion to modify the weekly child support order claiming the court lacked jurisdiction to render the original support order of May 24,1982. The defendant also claimed that the last remaining minor child was emancipated, and that he was no longer responsible for that child’s support. After a full hearing, the court denied the defendant’s motion to modify the support order and found the defendant in contempt.

Each of the defendant’s three claims of error is predicated on his assertion that the original order of child support was unlawful because the court was without jurisdiction to render a support order that would require the defendant to pay support for a child who had attained his or her majority. The defendant therefore asserts that any such order would be void ab initio, and, consequently, that the defendant's failure to obey such order could not constitute a contempt. We disagree.

The trial court, having the language of the order before it, and having heard arguments of counsel, rejected the defendant’s interpretation of the child support order and in a well reasoned memorandum of decision expressly found that “the support order in this case is indivisible and therefore does not contemplate that support is being paid for emancipated children.” We cannot say that the trial court’s interpretation of the support order was clearly erroneous. The language used, “$75 per week for all of said minor children until the youngest living child reaches the age of 18 years ...” (emphasis added), may be construed logically and reasonably as manifesting an intent by the parties that the $75 weekly payment was to be indivisible, not subject to a pro rata deduction as each child attained majority and was to continue in the amount of $75 per week until terminated by the youngest child reaching eighteen years. Thus, no part of the weekly payment was for the benefit of any adult child.

Indeed, the defendant acknowledged his obligation to continue the payment at $75 through five contempt proceedings and never contested the legality of the orders until his sixth contempt citation. Unless the order provides otherwise, “[w]hen, as part of a divorce decree, a parent is ordered to pay a specified amount periodically for the benefit of more than one child, the emancipation of one child does not automatically affect the liability of the parent for the full amount.” Delevett v. Delevett, 156 Conn. 1, 3-4, 238 A.2d 402 (1968). The proper remedy, if the full amount is deemed excessive, is to seek a modification of the decree. Id., 4.

In Delevett, as in this case, there was no language to indicate that the court intended its suppport order to be equally divisible and automatically reduced as each child became emancipated. “Unless there is a clear indication to the contrary, the support order of the court, unless modified, is intended to continue in full force until the youngest child becomes emancipated.” Id., 5.

“The reason for considering a single amount to be paid periodically for the support of more than one child as not subject to an automatic pro rata reduction is twofold. First, a child support order is not based solely on the needs of the minor children but takes into account what the parent can afford to pay. . . . Consequently, a child support order may not accurately reflect what the children actually require but only what the parent can reasonably be expected to pay. To allow an automatic reduction of an undivided order would be to ignore the realities of such a situation. Second, to regard an undivided child support order as equally divisible among the children is to ignore the fact that the requirements of the individual children may vary widely, depending on the circumstances.” (Citations omitted.) Id., 4. We agree with this reasoning and fully adhere to the principles enunciated therein.

Despite the defendant’s contention to the contrary, the language of the order limits the obligation of the defendant to pay child support only for the minor children and does not state that the defendant is liable for post-majority support. This case is outside the ambit of those cases holding that a court has no jurisdiction to enforce post-majority support orders. See Kennedy v. Kennedy, 177 Conn. 47, 52, 411 A.2d 25 (1979); Sillman v. Sillman, 168 Conn. 144, 148, 358 A.2d 150 (1975).

Finally, the trial court’s conclusion that the youngest minor child was not emancipated, was a question of fact to be resolved by the trial court. Its conclusion is not clearly erroneous. We will not retry this issue. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 325 A.2d 24 (1980).

There is no error.

In this opinion the other judges concurred.


text:
    State of Connecticut v. Timothy C. Shashaty
    (3172)
    Hull, Spallone and Bieluch, Js.

      Argued April 3
    decision released August 5, 1986

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

      Steven M. Sellers, deputy assistant state’s attorney, with whom, on the brief, was John J. Kelly, chief state’s attorney, for the appellee (state).
   Hull, J.

The defendant was convicted after a jury trial of sexual assault in the first degree and unlawful restraint in the first degree, in violation of General Statutes §§ 53a-70 (a) and 53a-95 (a), respectively. The defendant appeals from his judgment of conviction claiming that the trial court made two errors: (1) in giving the jury a “missing witness” instruction adverse to the defendant when there was no showing that the witness was available; and (2) in permitting the prosecution to present evidence that the defendant exercised his right to remain silent after having been given Miranda warnings. We find no harmful error.

The jury reasonably could have found the following facts. On March 6,1983, the victim walked to a party at the Milford home of Emily Lewis. She arrived at the party at 6 p.m. The defendant arrived at the party at 7:30 p.m., accompanied by a friend. Later in the evening, at about 11 p.m., a confrontation arose between the victim and another guest over the disappearance of the victim’s purse. The victim was upset after the fight and locked herself in the bathroom. The defendant entered the bathroom and talked to the victim for some time. Eventually, the party broke up and the victim started to walk home by herself.

The victim testified that at the party, the defendant tried to kiss her. She resisted and told the defendant that she had to go home. The defendant caught up with her on her walk home and she rebuffed his demand that she walk with him. The defendant then picked her up, put her over his shoulder and began walking down the street with her. He put her down after she agreed to walk with him and hold his hand. The defendant soon put her over his shoulder again, and despite her screams, carried her through the yards of several residences before putting her down and forcing her to have sexual intercourse with him. After a few minutes, the defendant fled and the victim walked home by herself.

Lieutenant William Graham of the Milford police department testified that the victim came to the police on March 9, 1983, and reported the incident. While awaiting the results of various laboratory tests, Milford police officers, on March 10,1983, asked the defendant to stop by the police station to answer some questions. The defendant agreed, and was subsequently interviewed by police officers regarding the victim’s sexual assault complaint. The defendant asserted his innocence after having been given full Miranda warnings. Miranda v. Arizona, 384 U.S. 436, 475, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). He made a written statement that he had left the party with his girlfriend Melissa Junget, and two people named Billy McClafferty and Maryann Kopec. In the written statement, which was accompanied by a signed waiver of the defendant’s constitutional rights, the defendant asserted that the four left in Kopec’s car and that the defendant was driven to his house where he went to bed. Lewis, Kopec, McClafferty and Junget all testified, however, that the defendant remained at the Lewis house after Junget, Kopec and McClafferty had departed.

The defendant testified at trial that he did attend the Lewis party and had expected to get a ride home with Lewis’ boyfriend. When the boyfriend decided to spend the night at the Lewis house, the defendant had to hitchhike home. He stated that he was picked up by someone named “Mark” and driven to his house. This person was never called as a witness and in its charge to the jury, the court gave a “missing witness” instruction respecting the defendant’s failure to call him.

The defendant’s first claim on appeal concerns the “missing witness” instruction given to the jury. The court charged the jury as follows: “the failure of a party to call a witness . . . who . . . [is] within its power to produce entitles you, the jury, to infer that the testimony of such witness . . . would be unfavorable to that party. In this case, the defendant testified that, after leaving the party at Emily Lewis’ home, he hitchhiked and received a ride from a person whose first name he knew to be Mark. Consistent with the rule I have just stated, you may consider the failure of the defendant to call this person.”

Secondino v. New Haven, 147 Conn. 672, 165 A.2d 598 (1960), is the seminal case in Connecticut on the “missing witness” doctrine. In Secondino, the court stated that “ ‘[t]he failure of a party to produce a witness who is within his power to produce and who would naturally have been produced by him, permits the inference that the evidence of the witness would be unfavorable to the party’s cause.’ . . . There are two requirements for the operation of the rule: [t]he witness must be available, and he must be a witness whom the party would naturally produce.” Id., 675. A Secondino charge may not be given, however, unless the party claiming the benefit of the adverse inference proves that the missing witness is in fact available to the other party. State v. Shindell, 195 Conn. 128, 138-39, 486 A.2d 637 (1985); State v. Boyd, 178 Conn. 600, 605, 424 A.2d 279 (1979).

The state offered no evidence as to the availability of “Mark” and it concedes that the Secondino charge delivered by the trial court was both unwarranted and incorrect as a matter of law. The state claims, however, that the defendant has not established, as he must, the harmfulness of the trial court’s error.

When a defendant’s claim of error on appeal is not of a constitutional nature, the burden rests upon the defendant to demonstrate that the claimed erroneous action of the trial court would have been likely to affect the result. State v. Gonzalez, 197 Conn. 677, 681, 500 A.2d 1330 (1985); State v. Cooper, 182 Conn. 207, 212, 438 A.2d 418 (1980); State v. Ruth, 181 Conn. 187, 197, 435 A.2d 3 (1980). Because the defendant’s claim of error involves only an evidentiary matter, and not the violation of a constitutional right, the burden of proving the harmfulness of the charge rests upon the defendant. See State v. Gonzalez, supra, 681.

The defendant offers only one statement to support his claim of harm. He claims in his brief that “permitting such an inference to be drawn against a defendant in a criminal case under any circumstances violates the presumption of innocence and denies due process of law.” This statement is insufficient to support the defendant’s burden of proving harmfulness.

As the only evidence of the defendant’s alibi was his own testimony, it is obvious that his credibility was very important. That credibility had been severely damaged already, however, when he admitted that he lied about his whereabouts to the police in his written statement. In light of that repudiated statement and the testimony of the victim herself, any prejudice to the defendant by the erroneous Secondino charge is minimal. When faced with a similar situation, our Supreme Court in State v. Gonzalez, supra, held that comments made by the prosecution with respect to the failure to call a witness constituted harmless error. We likewise conclude that the error was harmless.

The defendant’s second claim is that the trial court erred in permitting the state to question a police officer to show that between the time of his first statement and his arrest, the defendant did not contact the police to correct that statement. According to the defendant, introduction of this evidence violated his right to remain silent as interpreted by the United States Supreme Court in Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976). We agree.

It has long been clear that when an accused is in custody, “our law affords him the right to reply to [a] question or statement, or to remain silent.” State v. Ferrone, 97 Conn. 258, 266, 116 A. 336 (1922). In Doyle v. Ohio, supra, 619, the United States Supreme Court determined that this right is violated by “the use for impeachment purposes of [a defendant’s] silence, at the time of arrest and after [he] receives] Miranda warnings . . . .” The state does not contest this general rule but argues that where, as here, a defendant makes a statement, his silence, after custodial interrogation has ended, may then be used for impeachment. In support of this argument, the state relies on the rule that if the defendant chooses not to remain silent any statement he makes “after Miranda warnings have been given, relating to the facts of the crime with which [he] is charged, may be used to impeach his credibility by illustrating inconsistencies between that statement and a different exculpatory statement given during his in-court testimony. State v. Reid, 193 Conn. 646, 480 A.2d 463 (1984).” State v. Apostle, 8 Conn. App. 216, 222, 512 A.2d 947 (1986).

This court has recently rejected the state’s claim that post-statement silence may be used for impeachment purposes. State v. Apostle, supra. In Apostle, a case that is factually very similar to the present case, we held that the state may not question a defendant or comment about his failure to correct, after a police interrogation has ended, a false statement made during that interrogation. That decision was based, in part, on the fact that “[a] defendant may reassert his right to remain silent at any time, and if he ceases to answer questions, or to come forward with additional or correcting information after questions are no longer being asked of him, there is a reasonable possibility that he is relying upon that right.” Id., 224. Accordingly, we conclude that the trial court should not have allowed the state to question the police officer about the defendant’s failure to correct his statement.

Having determined that the trial court erred, we must next determine whether reversal of the defendant’s conviction must follow. “Under certain circumstances, the state’s use of a defendant’s post-arrest silence does not constitute reversible error. In limited instances, ‘ “[w]hen there is but a single reference at trial to the fact of defendant’s silence, the reference is neither repeated nor linked with defendant’s exculpatory story, and the exculpatory story is transparently frivolous and evidence of guilt is otherwise overwhelming, the reference to defendant’s silence constitutes harmless error.” Chapman v. United States, 547 F.2d 1240, 1250 (5th Cir.), cert. denied, 431 U.S. 908, 97 S. Ct. 1705, 52 L. Ed. 2d 393 (1977) ....’” State v. Apostle, supra, 227, quoting State v. Zeko, 177 Conn. 545, 555, 418 A.2d 917 (1979). We conclude that applying these standards, this case presents one of those “few instances”; State v. Apostle, supra; where the error was harmless.

Here, in contrast to Apostle, the state did not comment on the defendant’s failure to change his statement. Rather, the state’s attorney merely asked the officer as a factual matter whether “at any time, [he] receive[d] any contact from [the defendant] and information from him that he had either been mistaken or lied in his statement.” After the officer answered no, the state’s attorney then asked whether the officer had been “advised of the existence of any individual by the name of Mark, who allegedly picked [the defendant] up while he was hitchhiking home from Emily Lewis’s party on March 6?” When the officer stated that he had not, the line of questioning was dropped. This testimony was not commented on or emphasized in closing argument. Additionally, the defendant’s alibi defense had already been substantially damaged by introduction of the statement he gave to the police which was contradicted by four witnesses in addition to the victim. In the light of these factors, we conclude that it is clear beyond a reasonable doubt that the jury would have returned a guilty verdict without the impermissible questioning.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 54-86d provides: “Any person who has been the victim of a sexual assault under section 53a-70, 53a-70a, 53a-71, 53a-72a, 53a-72b or 53a-73a, or injury or risk of injury, or impairing of morals under section 53-21, or of an attempt thereof, shall not be required to divulge his or her address or telephone number during any trial or pretrial evidentiary hearing arising from the sexual assault or injury or risk of injury to, or impairing of morals of, children; provided the judge presiding over such legal proceeding shall find: (1) Such information is not material to the proceeding, (2) the identity of the victim has been satisfactorily established, and (3) the current address of the victim is made available to the defense.” General Statutes § 54-86e provides: “The name and address of the victim of a sexual assault under section 53a-70, 53a-70a, 53a-71, 53a-72a, 53a-72b, or 53a-73a, or injury or risk of injury, or impairing of morals under section 53-21, or of an attempt thereof shall be confidential and shall be disclosed only upon order of the superior court, except that such information shall be available to the accused.”
      In order to uphold the spirit of these statutes, we will not disclose the name or address of the victim. She will be referred to herein as “the victim.”

       Whether the charge was requested or given sua sponte is in dispute.

       In State v. Apostle, 8 Conn. App. 216, 227-28, 512 A.2d 947 (1986), in contrast to this case, the state questioned the defendant, not the police officer, about his failure to change his statement. We view this difference to be of no significance. It is error to admit evidence of a defendant’s failure to change a statement after in custody interrogation has ended regardless of how that evidence is offered.


text:
    Theresa M. Servidio et al. v. Planning and Zoning Commission of the Town of Stonington et al.
    (4165)
    Hull, Spallone and Bieluch, Js.
    Argued April 2
    decision released August 5, 1986

      William H. Hescock, for the appellant (defendant Frank Verzillo).

      Mary E. Holzworth, for the appellees (plaintiffs).
   Bieluch, J.

This appeal arises out of the trial court’s decision sustaining the plaintiffs’ appeal from the defendant planning and zoning commission’s approval of a special use permit for the construction of twenty-seven attached and detached condominium units in the town of Stonington. The condominium development was to consist of two single family homes, five duplex residence buildings and five three-unit townhouses. The trial court sustained the plaintiffs’ appeal after finding that the record did not provide a basis from which the planning and zoning commission could conclude that the five duplex residence buildings complied with the lot area requirements of §§ 3.61 and 3.62 of the town’s zoning regulations calling for a minimum lot area of 30,000 square feet for each building. We find no error.

The defendant claims that the court erred in concluding that the plaintiffs had met their burden of proving that the planning and zoning commission had acted improperly. He also claims that the trial court erroneously substituted its opinion of the evidence for that of the commission. We disagree with both contentions.

The parcel of land upon which the proposed development is to be situated is located in an RM-15 district zone. Section 3.61 of the zoning regulations requires a minimum lot area of 15,000 square feet in that zoning district. Section 3.62 of the regulations specifies the uses permitted in an RM-15 zone. In addition to single family dwellings, “Duplexes-attached residence (District lot size X 2)” are allowed by § 3.62 (C). Townhouses containing no more than four units per building are permitted in this zone with a special use permit from the planning and zoning commission. Under § 1.32.69 a “Residence-Townhouse” is defined as a structure containing not less than three nor more than four horizontal units and being not more than two full stories high. Density requirements for townhouses are set forth in § 5.4-6. The central zoning requirement in issue before the trial court was the minimum lot area of 30,000 square feet for each of the five duplex buildings in the proposed project.

The development under consideration received its special use permit conditioned upon several modifications to the proposed condominium which, inter alia, resulted in a reduction of the total dwelling units to be built from thirty-one to twenty-seven. The decrease in living units was accomplished by removing an end unit from each of two proposed three-unit townhouses, thus converting them into duplexes, and by eliminating one duplex altogether. As a result of these changes to the site plan as submitted by the defendant, the condominium was now to consist of two single family homes, five duplex homes and five three-unit townhouses. From a review of the zoning record before it, the trial court concluded that the record did not support the planning and zoning commission’s requisite finding that each of the five duplex residence buildings contained the minimum lot area of 30,000 square feet called for by § 3.62 (C) of the zoning regulations.

The original site plan submitted to the commission shows that the two single family dwellings are located on lots containing the requisite 15,000 feet of land, and that each of the units in the townhouses remaining after modification by the commission’s approval possesses the necessary minimum integral lot area of 2000 square feet required by §§ 5.4-6 (E) (1) and 3.67 (D) of the zoning regulations. The original site plan does not indicate that the duplex buildings were situated on lots containing at least 30,000 square feet of land. Rather, it shows that the duplexes possess a minimal integral lot area of 2000 square feet. A fortiori, the modifications of the plan inherent in the commission’s approval do not show the required lot area for the original three duplexes or the two additional duplexes created from former proposed townhouses. The additional or modified duplexes on the original site plan show merely that they also possess an integral lot area of 2000 square feet required of the former townhouses. Section 3.67 of the “Special Regulations” permits the waiver of density requirements for “Cluster Developments” approved under § 7.5. The trial court did not find the proposed condominium plan to be a cluster development as defined by § 7.5 of the regulations. Hence, the site plan showing integral lot areas of 2000 square feet adjoining each duplex unit, original or modified, rather than a minimum lot area of 30,000 square feet for each duplex building, did not provide a basis for the commission’s finding that the requirements of the zoning regulations, in particular the minimum lot area of 30,000 square feet for each duplex dwelling structure, was met by the proposed plan of development.

There is no error.

In this opinion the other judges concurred.

       In addition to the named plaintiff, seven other abutting landowners are plaintiffs and appellees. Two of these, Rocca DiCesare and Virginia E. Schackner, were erroneously omitted from the judgment file in the trial court.

       In addition to the named defendant, the developer of the proposed project, Frank Verzillo, is also a defendant. He is the sole appellant and is referred to as the defendant.

       The appellees have raised, pursuant to Practice Book § 3012 (a), an alternate ground upon which the trial court’s decision should be upheld. Because of our decision with regard to the defendant’s claims of error, we deem it unnecessary to reach this affirmative claim.


author: Daly, J.

text:
    State of Connecticut v. Van Wright
    (3975)
    Dupont, C. J., Hull and Daly, Js.
    Argued May 1
    decision released August 5, 1986

      Martin S. Stillman, special public defender, for the appellant (defendant).

      Michael E. O’Hare, deputy assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, and Kevin McMahon, assistant state’s attorney, for the appellee (state).
   Daly, J.

The defendant was convicted by a jury of the crime of sexual assault in the first degree, a violation of General Statutes § 53a-70, and of robbery in the first degree, a violation of General Statutes § 53a-134 (a) (3). From the denial of his motion to set aside the verdict, the defendant has appealed claiming that the trial court erred: (1) in failing to suppress the out-of-court and in-court identifications; (2) in not charging the jury on the law relating to the failure of a party to produce a certain witness; (3) in refusing to set aside the verdict on the ground of insufficient evidence; and (4) in failing to instruct the state’s attorney to investigate certain testimony presented by a witness for the defendant.

The jury could reasonably have found the following facts. The complainant lives on Ogilby Drive in Hartford with her daughter and her eight year old son. She is employed at a nursing home as a nurse’s aide on the 11 p.m. to 7 a.m. shift and uses a taxicab to get back and forth from her place of employment. On December 29, 1982, she walked to the public telephone on Mark Twain Drive at approximately 10:30 p.m. to inquire about a taxicab. She then returned to her apartment. Because no taxi had arrived by 10:50 p.m., she again went to the public telephone, and on her way, saw the defendant in front of Ogilby Drive, near a street light. She had observed him in the neighborhood previously and had talked to him on one occasion. The defendant was wearing a hooded, brown suede jacket with a white fleece lining, navy blue jogging pants and a white knit skull cap.

While completing the second call for the taxicab, she saw two young men approaching her from fifty to seventy feet away. As they passed under street lights, she recognized the defendant and another black youth, but did not know either by name. She was grabbed from behind and a pair of pants were put in front of her face. In the struggle, she saw her assailants in front of her and recognized that they were the same duo who had approached earlier on Mark Twain Drive. The defendant’s companion had a knife. They dragged her across the street to a wooded area where they sexually assaulted her and afterwards, took her rings and money. During the assault, the defendant was referred to as “Vince” by his companion. After threatening to kill the victim if she told anyone of the attack, the assailants left. The victim went to a neighbor’s house, that of Doreen Hutchins, and the police were notified.

When the taxicab arrived at the victim’s house at 11:15 p.m., the daughter got into the car to look for her mother. She saw the defendant running across the field from Mark Twain Drive. She had known the defendant for two years because both were students at Weaver High School. From the illumination of the street lights, she observed that the defendant was wearing blue sweat pants, a brown fleece-lined jacket and a skull cap. While the daughter was in the company of her boyfriend, Alvin McClennon, earlier that day, she had seen the defendant similarly attired on the bus with Marshall Nelson.

The victim’s daughter returned home in the taxicab with McClennon and scoured the neighborhood looking for her mother, finally locating her at the neighbor’s apartment. Her mother told her that she had been raped. The victim’s eye was swollen, her lip was lacerated, and her hair was disheveled and covered with leaves. Her coat and a portion of her uniform were tom. The daughter returned home to care for her brother while the police came and drove the victim to the hospital. The police recovered the victim’s clothing and a pair of child’s pants at the scene of the assault. At the hospital, the victim described her assailants as young black males between nineteen and twenty years of age. One wore a short hooded coat which was either brown, tan or gray and was named “Vince.” When the daughter arrived at the hospital, the victim described the attackers to her daughter who deduced that the description of one assailant matched that of the defendant whom she had seen in the neighborhood earlier.

Upon learning that the defendant was in a particular apartment located on Ogilby Drive, the victim’s daughter, McClennon and several of the victim’s relatives surrounded the apartment. The Hartford police were notified. After the daughter and McClennon knocked at the door and asked for the defendant, someone inside, without being asked, said “I didn’t do nothing to [the victim].” When the defendant emerged from the premises, the police officers suggested, in light of the threatening situation, that he accompany them elsewhere and they went to the Annie Fischer School nearby. The police officers advised the defendant that they planned to conduct a confrontation. The defendant agreed to be viewed by the victim and he was brought into a room where the victim and her daughter were both present. He was identified by the victim and was subsequently arrested. She was shown a photographic array and identified the second assailant as Nelson. McClennon also indicated that he had heard someone call the defendant “Vince” during the course of a football game.

I

The defendant claims that the trial court should have suppressed the in-court and out-of-court identifications. In moving to suppress identification evidence, a defendant must first prove that the identification was made as a result of an unconstitutional procedure. State v. Collette, 199 Conn. 308, 310, 507 A.2d 99 (1986). In determining whether the identification procedures violated the defendant’s due process rights, the inquiry must ascertain (1) whether the identification procedure was impermissibly and unnecessarily suggestive, and (2), if so, whether the identification was nevertheless reliable based upon an examination of the totality of the circumstances. State v. Amarillo, 198 Conn. 285, 291, 503 A.2d 146 (1986); State v. Farrar, 7 Conn. App. 149, 157, 508 A.2d 49 (1986).

“We recognize that almost any one-to-one confrontation between a victim of a crime and a person whom the police present as a suspect is presumptively ‘suggestive,’ but not all suggestive confrontations are unnecessary. State v. Hamele, 188 Conn. 372, 376-77, 449 A.2d 1020 (1982); State v. Middleton, 170 Conn. 601, 608, 368 A.2d 66 (1976).” State v. Aversa, 197 Conn. 685, 694, 501 A.2d 370 (1985). “Circumstances may justify an immediate viewing by the victim because prompt on-the-scene confrontations are more likely to be accurate and allow an innocent party to be quickly released if there is no positive identification.” State v. Aversa, supra, 694 n.3; State v. Hamele, supra; State v. Mallette, 159 Conn. 143, 149, 267 A.2d 438 (1970). We find that the circumstances here, wherein the police were obliged to defuse a potentially explosive situation, justified an immediate viewing and that the confrontation by the victim and daughter was not unnecessarily suggestive.

Even if we were to find this one-on-one confrontation unnecessarily suggestive, however, that does not end our inquiry into whether the identification is admissible at the trial.“Because reliability is the ‘linchpin’ in determining the admissibility of identification evidence; Manson v. Brathwaite, [432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977)]; we must consider whether under the ‘totality of circumstances’ the identifications were reliable.” State v. Theriault, 182 Conn. 366, 373, 438 A.2d 432 (1980). “The constitutional test for reliability requires the trial court to consider ‘the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.’ ” Manson v. Brathwaite, supra; State v. Hinton, 196 Conn. 289, 295-96, 493 A.2d 836 (1985); see Neil v. Biggers, 409 U.S. 188, 199-200, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972).

“The reliability of the victim’s identification of the defendant as her assailant is disclosed by the circumstances, most of which we have already set out. We would also note that the victim had a good and sufficient opportunity to view her assailant at the time of the assault at close range and with adequate lighting; these'factors enhance reliability. ... It has been stated ‘that the victim of [a] crime is apt to be a more reliable source of identification than is a mere spectator to the incident.’ ” (Citations omitted.) In re Juvenile Appeal (83-EF), 190 Conn. 428, 436-37, 461 A.2d 957 (1983). It is clear that the evidence of identification was reliable and that the trial court did not err in refusing to suppress the evidence of those identifications. The defendant’s constitutional rights, therefore, have not been abridged.

II

The defendant claims that he was entitled to a jury instruction to the effect that an unfavorable inference may be drawn against the state for its failure to furnish the testimony of McClennon, the boyfriend of the victim’s daughter. “A witness who would naturally be produced by a party is one who is known to that party and who, by reason of his relationship to that party or to the issues, or both, could reasonably be expected to have peculiar or superior information material to the case which, if favorable, the party would produce.” Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960).

Because McClennon was not shown to have been an eyewitness, he would not have been a person the state would have naturally produced as one possessing superior or unique knowledge material to the case. Accordingly, the trial court did not err in refusing to instruct the jury on the Secondino rule. State v. Hart, 198 Conn. 424, 429, 503 A.2d 588 (1986). Furthermore, the Secondino rule would not apply because the state called McClennon as a rebuttal witness.

Ill

When a verdict is challenged because of insufficient evidence, the standard applied is whether the jury could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt. State v. Monk, 198 Conn. 430, 432, 503 A.2d 591 (1986); State v. Carter, 196 Conn. 36, 44, 490 A.2d 1000 (1985); State v. Nemeth, 182 Conn. 403, 410, 438 A.2d 120 (1980). “The evidence must be given a construction most favorable to sustaining the jury’s verdict.” State v. Carter, supra, 44. In determining that each element of the crime charged is proved beyond a reasonable doubt, the jury may make reasonable and logical inferences but may not resort to speculation and conjecture. State v. Monk, supra, 433; State v. Gaynor, 182 Conn. 501, 503, 438 A.2d 749 (1980).

“We do not sit as a thirteenth juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. We have not had the jury’s opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility.” State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984). In addition, we cannot retry the facts or judge the credibility of the witnesses. State v. Monk, supra.

The victim’s testimony, if believed by the jury, was sufficient to establish beyond a reasonable doubt that the defendant compelled the victim to engage in sexual intercourse by the use of force and also that he robbed her of her money and jewelry. The verdict indicates that the jury chose to believe the state’s version of the evidence, and to disbelieve the defendant’s version. State v. Monk, supra.

IV

The defendant claims finally that the trial court erred in failing to instruct the state’s attorney to investigate the testimony of the defendant’s witness, Robert Williams, who testified that he overheard the victim tell her daughter during the trial that she could not be sure the defendant was her assailant. Both the victim and the daughter denied this conversation. The defendant never requested the court to order an investigation of the incident. The defendant is therefore attempting to obtain review of a claim not made to the trial court. He is not entitled to such a review under exceptional circumstances as enunciated in State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). The defendant’s claim relates to a conflict between the testimony of two witnesses. The record does not support the defendant’s claim that a question of fundamental constitutional dimension is involved. “It is the province of the jury to determine the credibility of the witnesses and the weight to be accorded their testimony.” Trzcinski v. Richey, 190 Conn. 285, 298, 460 A.2d 1269 (1983); Holden & Daly, Connecticut Evidence § 125a, p. 592.

There is no error.

In this opinion the other judges concurred.

       Earlier in the day the victim’s daughter and McClennon had taken a bus to New York City and returned that afternoon with a number of the victim’s relatives.

       Nelson was tried with the defendant and also convicted.