author: Norcott, J.

text:
    State of Connecticut v. Constantine Morant
    (5449)
    Dupont, C. J., Bieluch and Norcott, Js.
    Argued October 5, 1987 —
    decision released February 2, 1988

      John W. Watson, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      Leah Hawley, deputy assistant state’s attorney, for the appellee (state).
   Norcott, J.

In this appeal, the defendant claims that the trial court erred (1) in finding that the defendant’s plea of guilty was knowingly, intelligently, and voluntarily entered, and (2) in failing to allow the defendant to withdraw his plea at sentencing. Because we find that the defendant’s attempt to withdraw his plea was not afforded appropriate consideration by the trial court, we remand the case so that an evidentiary hearing may be held to determine whether the defendant should be allowed to withdraw his plea of guilty.

The following facts are relevant to this appeal. In the course of his trial on charges of injury or risk of injury to, or impairing morals of, a minor in violation of General Statutes § 53-21, and sexual assault in the second degree in violation of General Statutes § 53a-71, the defendant informed the court through counsel that he wished to withdraw his pleas of not guilty and enter a plea of guilty to the sole charge of injury or risk of injury to a minor. The state’s attorney informed the court that no agreement had been made as to the sentence to be recommended or imposed, but that the state had agreed to drop the other charges pending against the defendant. After assuring itself that the defendant was aware of the terms of the plea bargain, the court informed the defendant that since the trial had already started he would not be able to withdraw the plea of guilty he was about to enter.

„ The court then began to canvass the defendant to determine whether his plea was being entered knowingly and voluntarily. In the middle of the court’s canvass, the defendant three times asserted that he did not do the acts which he was alleged to have committed. Faced with these protestations of innocence, the trial court initially refused to accept the defendant’s guilty plea. After a brief colloquy with the defendant, however, the court continued its canvass.

Upon the conclusion of the canvass, the trial court determined that the defendant’s plea of guilty was, in fact, being entered knowingly and voluntarily. The court accepted the plea and ordered a presentence investigation of the defendant with a report to be prepared for the sentencing which was scheduled for September 9, 1985.

At the sentencing hearing, the court sentenced the defendant to ten years imprisonment suspended after seven years with five years probation. Immediately after the imposition of sentence, the following colloquy took place:

“The Defendant: May I say something, your Honor?

“The Court: Well, go ahead.

“The Defendant: I had not pleaded guilty to this court on my own recognition. I was on a pressure force to plead guilty. It was the way to withdraw—

“The Court: Your transcript — your transcript to me shows otherwise, Mr. Morant.

“The Defendant: Your Honor, I—

“The Court: That’s all right. You can — you can take that up with your next attorney if you want.

“The Defendant: Okay.

“The Court: But it’s not appropriate at this time.

“Defense Counsel: Two things, your Honor.

“The Court: Please don’t say anymore about it. It might make me sorry that I even gave you just seven suspended — I mean ten suspended after seven.

“Mr. Thomas: May the record reflect, your Honor, I believe the clerk is in the process of giving the defendant his notice of right to appeal and sentence review.

“The Court: Yes, you would give him his rights of appeal.

“The Clerk: He has that now.

“The Court: Excuse me, costs are not waived.

“The Defendant: Your Honor, I’m — your Honor, I—

“The Court: I don’t want to hear anymore from you, Mr. Morant. Your case is over as far as—

“The Defendant: I’m appealing, your Honor.

“The Court: You can appeal, fine. There’s nothing wrong with that. You can appeal.

“The Defendant: Please, let it know I’m appealing.

“The Court: You have a right to take an appeal. Leave this transcript of his in the file.”

We begin our analysis by noting that “[A] plea of guilty is in effect a conviction and the equivalent of a finding of guilty by a jury. Machibroda v. United States, 368 U.S. 487, 493, 82 S. Ct. 510, 7 L. Ed. 2d 473 [1961]; State v. Carta, 90 Conn. 79, 81, 96 A. 411 [1916]. The entry of a plea of guilty waives the constitutional right to a trial by jury, the right to confront accusers, and the privilege against compulsory self-incrimination.” State v. Battle, 170 Conn. 469, 473, 365 A.2d 1100 (1976); see also Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). “For this waiver to be valid under the Due Process Clause, it must be ‘an intentional relinquishment or abandonment of a known right or privilege.’ Johnson v. Zerbst, 304 U.S. 458, 464 [58 S. Ct. 1019, 82 L. Ed. 1461] (1938). Consequently, if a defendant’s guilty plea is not equally voluntary and knowing, it has been obtained in violation of due process and is therefore void. Moreover, because a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts.” McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969).

Once a guilty plea has been entered, the proper procedure for challenging the knowing and voluntary nature of the plea is by a motion to withdraw the plea made to the trial court before the conclusion of the proceeding at which sentence is imposed. Practice Book § 720; State v. Schaeffer, 5 Conn. App. 378, 385, 498 A.2d 134 (1985). Ordinarily, the failure to file such a motion “precludes review of claimed infirmities in the acceptance of a plea.” State v. Schaeffer, supra. The state contends that the defendant failed to file a motion to withdraw the plea in this case. We find, however, that the defendant did assert in a timely fashion the claim that his guilty plea was involuntary. The trial court erred in not giving the defendant the opportunity to present that claim fully.

The record in this case indicates that immediately after the defendant was sentenced but before the close of the sentencing proceeding the defendant informed the court that he had not entered his plea on his own “recognition.” He also told the court that he had been “on a pressure force to plead guilty.” Such statements are clearly allegations by the defendant that his plea had not been entered voluntarily.

Ordinarily, a defendant is not allowed to withdraw his plea of guilty, nor is he entitled to an evidentiary hearing to determine the voluntariness of his plea, merely because he makes a general allegation that his plea was involuntary. State v. Torres, 182 Conn. 176, 185, 438 A.2d 46 (1980). “In considering whether to hold an evidentiary hearing on a motion to withdraw a guilty plea the court may disregard any allegations of fact, whether contained in the motion or made in an offer of proof, which are either conclusory, vague or oblique. [Id.]” State v. Lasher, 190 Conn. 259, 266, 460 A.2d 970 (1983). In this case, however, we deem that the statements made by the defendant are sufficient to require the holding of an evidentiary hearing because the trial court effectively precluded the defendant from making any more specific allegations of fact.

We note that at the earlier plea proceeding the defendant was erroneously informed by the court that he could not under any circumstances withdraw his guilty plea. It is reasonable to conclude that once the defendant was so informed, he would not assert a claim for withdrawal of his plea. The defendant attempted to assert the substance of his claim to the sentencing court but was interrupted. When the defendant attempted to respond to the court, he was told to take the matter up with his next attorney. After a brief interjection by the prosecuting attorney, the defendant tried once more to speak to the court. The court responded with a thinly veiled threat telling the defendant that if he heard anymore from him the court might be sorry that it sentenced him to only ten years suspended after seven. Understandably, the defendant failed to make more specific allegations of fact. Under these circumstances, the defendant should be given the opportunity to present evidence as to whether his plea of guilty might be withdrawn.

There is error, the case is remanded to the trial court for an evidentiary hearing to determine whether the defendant should be allowed to withdraw his plea of guilty. In the event that the trial court determines that the defendant should be allowed to withdraw his plea, the judgment is set aside and the case is remanded for further proceedings; in the event that the trial court determines that the defendant should not be allowed to withdraw his plea, the judgment shall be amended to reflect that determination.

In this opinion the other judges concurred.

       The plea bargain included an agreement by the state’s attorney to drop similar charges pending against the defendant in another case.

       The following colloquy took place: “The Court: And you also understand that if the Court accepts your plea there will be no chance for your plea to be vacated or withdrawn because this case has started a trial, and to allow you to withdraw your plea at some later time could constitute double jeopardy; and you would not be entitled to be tried again. So I’m sure no judge is going to allow you to withdraw your plea. So, I want you to be sure that your plea is voluntary. You understand that tomorrow or one week from now or one month from now won’t do any good.
      “Well, are we going to sentence him today? I don’t want to sentence him tonight?
      “Mr. Thomas: That’s fine with me, your Honor.
      “The Court: But your plea is not going to be withdrawn. And so no claim of — no claim that you have ineffective assistance of counsel or that you didn’t know what you were doing or that your plea was not voluntary will do you any good to have your plea withdrawn at a future time. You understand that?
      “The Defendant: Yes, your Honor.
      “The Court: Okay.”

       The relevant portion of the plea proceeding was as follows:
      “The Defendant: Yes, your Honor.
      “The Court: Are you satisfied — Do you know that the acts or unlawful-risk of injury means that you must do so willfully and unlawfully?
      “The Defendant: Yes, your Honor.
      “The Court: And willfully means an intent to do the act that you did.
      “The Defendant: I didn’t know all that, your Honor.
      “The Court: What’s that?
      “The Defendant: I didn’t know all that, your Honor. I am hearing that now.
      “The Court: Unlawfully, you did it without right to do it.
      “The Defendant: I still didn’t do that, your Honor; but—
      “The Court: What?

        “The Defendant: I still didn’t do that.
      “The Court: Well, then I can’t accept that.
      “The Defendant: I still didn’t do that.
      “The Court: I cannot accept that plea of guilty.
      “The Defendant: Your Honor, may I say something?
      “The Court: Counselor, I cannot accept your plea of guilty. We will proceed with the trial. We will continue this until tomorrow morning.
      “The Defendant: What I’m talking about is not that.
      “The Court: Counsel, we will continue with the trial tomorrow. Bring the jury out. I cannot accept this plea.
      “Defense Counsel: Your Honor, I think—
      “The Court: I can understand your position.
      “Defense Counsel: But I think he’s — he’s now clearer on what he was—
      “The Court: If he’s going to maintain that he did not do what I’m telling him, then he’s not guilty.
      “The Defendant: No, your Honor. I’m sorry to say that. I’m sorry to say that. I’m listening to what you say, but something one right here, I understand, sir. That’s what I said, I didn’t know that.
      “The Court: For me to accept the plea of guilty, you have to admit that you did what you did.
      “The Defendant: Yes, your Honor. Okay.
      “The Court: If that’s your plea of guilty.
      “The Defendant: Yes, your Honor.
      “The Court: And under 23-53-21, which deals with injury or risk of injury to a minor child, means that what you did, the act that you did which was likely to injury her health or impair her morals was done without right, unlawfully.
      “The Defendant: Yes, your Honor.
      “The Court: You understand that?
      “The Defendant: Yes, your Honor.
      “The Court: And it was done with the intent to commit the general intent to do wrong. Do you understand that?
      “The Defendant: Yes, your Honor.”

       “[Practice Book] Sec. 720 —when allowed.
      “A defendant may withdraw his plea of guilty or nolo contendere as a matter of right until the plea has been accepted. After acceptance, the judicial authority shall allow the defendant to withdraw his plea upon proof of one of the grounds in Sec. 721. A defendant may not withdraw his plea after the conclusion of the proceeding at which the sentence was imposed.”

       If the defendant’s.claim were true, he would have been entitled to withdraw his plea pursuant to Practice Book §§ 720 and 721. Practice Book § 721 provides in relevant part: “The grounds for allowing the defendant to withdraw his plea of guilty after acceptance are as follows: ... (2) The plea was involuntary, or it was entered without knowledge of the nature of the charge or without knowledge that the sentence actually imposed could be imposed.”

       See footnote 2, supra.


source: Caselaw Access Project

author: O’Connell, J.

license: Public Domain

text:
    State of Connecticut v. Gregory Delosantos
    (5920)
    Dupont, C. J., Borden and O’Connell, Js.
    Argued December 2, 1987 —
    decision released February 2, 1988

      Bruce A. Sturman, public defender, for the appellant (defendant).

      Irving L. Aronson, assistant state’s attorney, with whom, on the brief, was C. Robert Satti, Sr., state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from the judgment of conviction, after a jury trial, of assault in the second degree in violation of General Statutes § 53a-60 (a) (2), assault in the third degree in violation of General Statutes § 53a-61 (a) (1), and threatening in violation of General Statutes § 53a-62 (a) (l). The defendant claims the court erred (1) in admitting evidence of other beatings inflicted by the defendant upon the victim, (2) in allowing testimony of the defendant’s drug use, and (3) in improperly instructing the jury on reasonable doubt. The defendant further claims that he was denied a fair trial because of improper prosecutorial comments concerning his failure to testify. We find no reversible error.

The jury could reasonably have found the following facts. At various times on June 10 and 11, 1986, the victim, who had previously lived with the defendant, encountered him on the streets of New London. The defendant demanded money from the victim, and, when it was not provided, the defendant beat, kicked and cut the victim and threw her from a third floor porch to a lower landing. He also threatened her for reporting this brutality to the police.

At trial, the victim testified on redirect examination that during their cohabitation, she and the defendant got along amicably as long as she gave the defendant money and drugs, but that he beat her whenever she did not. The defendant did not testify. The circumstances surrounding the state’s attorney’s comments regarding this failure to testify are set forth in the course of the ruling on that claim.

I

The first two claims of error concern the admission of evidence of the defendant’s prior misconduct. The defendant does not strenuously press his claim concerning prior drug use. In a nonresponsive answer to a question posed by the defendant on cross-examination, concerning the victim’s relationship with the defendant, the victim alluded to the defendant’s drug use. No motion to strike the unresponsive reply was made by the defendant at that time and it was allowed to stand. Although perhaps inadmissible, once the defendant allowed the bars to be let down to an incompetent or irrelevant field of inquiry by failing to object to the victim’s response, he could not complain if his adversary was also allowed to avail himself of the opening. State v. Roy, 173 Conn. 35, 49-50, 376 A.2d 391 (1977).

The defendant does, however, vigorously argue error in his second claim, regarding the admission of evidence that he beat the victim on previous occasions. On cross-examination of the victim, the defendant introduced evidence intended to show that he and the victim got along harmoniously when they lived together. On redirect examination, the court allowed the state to inquire into this relationship to show that this was not so, and that the victim had been subjected to beatings by the defendant during that period.

We recognize that evidence of guilt of other crimes is normally inadmissible because of the danger that the jury will infer that if a person committed an earlier crime he probably committed the present crime as well. State v. Ouellette, 190 Conn. 84, 95, 459 A.2d 1005 (1983). This rule, however, is not without its exceptions. In this case, “[t]he field of inquiry was opened by the defendant and he cannot complain if the state attempted to clarify that field, even if the evidence would otherwise be inadmissible. State v. Roy, [supra, 50]; see State v. Glenn, 194 Conn. 483, 498-99, 481 A.2d 741 (1984).” State v. Bowman, 3 Conn. App. 148, 154, 485 A.2d 1343 (1985).

The trial court did not commit error in allowing evidence of prior drug use or prior beatings of the victim by the defendant to be admitted.

II

With regard to the defendant’s third claim concerning the court’s jury instruction on reasonable doubt, the transcript shows that at one point in the jury instruction the court stated: “[I]f the facts you may find proven on the evidence you deem credible [are] consistent with or may be reasonably explained by any other hypothesis, then the accused is guilty. ” (Emphasis added.) The statement is unquestionably wrong. To be correct the instruction should have stated that under such circumstances the defendant should have been found not guilty. It is significant, however, that such a clear misstatement of a rudimentary legal principle brought no outcry from either counsel. It is possible, however, that the instruction as presented in the transcript was not that actually given by the court, but is rather the result of a typographical error on the part of the transcript’s preparer. Nonetheless, we must accept the transcript as it appears. We observe that when defense counsel, actually present in the courtroom at the time of a claimed error, fails to object and except, we may presume that he did not view the allegedly objectionable language to be as egregious as appellate counsel now urges; nor did he view the error as so prejudicial that his client’s right to a fair trial was seriously jeopardized. State v. Lubesky, 195 Conn. 475, 484, 488 A.2d 1239 (1985). State v. Bradley, 12 Conn. App. 163, 168, 529 A.2d 1343 (1987). “This assumption is reinforced by the defendant’s failure to include the claim in his preliminary statement of the issues as is required by Practice Book [4013].” State v. Salz, 8 Conn. App. 125, 138-39, 512 A.2d 921, cert, denied, 201 Conn. 807, 515 A.2d 380 (1986).

Because of the absence of proper preservation, we address this claimed error under the doctrine of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), because the defendant’s constitutional right to a fair trial is implicated.

“ ‘On appeal, the adequacy of jury instructions is not determined by the giving of any one instruction, but by examining the instruction as a whole.’ ” State v. Brown, 199 Conn. 14, 27, 505 A.2d 690 (1986). The trial court correctly explained each of the elements of the crimes charged, and in the course of so doing instructed the jury more than forty times to the effect that each element must be proved beyond a reasonable doubt in order to find the defendant guilty of any crime. At the very least, we are confronted with an inadvertent slip of the tongue by the trial court. Notwithstanding that the instruction as given involves a constitutional right, reversible error is not an inevitable appellate result. “ ‘An erroneous instruction, even of constitutional dimension, is harmless if, viewed in the context of the charge as a whole, there is no reasonable possibility that the jury was misled.’ ” State v. Cobb, 199 Conn. 322, 325, 507 A.2d 457 (1986). Examining this charge as a whole, we conclude that it is not reasonably possible that the jury was misled. State v. Shifflet, 199 Conn. 718, 754, 508 A.2d 748 (1986). The trial court’s error was harmless.

Ill

As his final claim of error, the defendant raises a comment made by the prosecutor regarding the defendant’s failure to testify. Despite the defendant’s failure to preserve the issue in a proper manner, it is reviewable under State v. Evans, supra, 71. State v. Magnotti, 198 Conn. 209, 215, 502 A.2d 404 (1985).

General Statutes § 54-84 prohibits a prosecutor from commenting on the fact that an accused does not testify. It is essential, however, that we examine the circumstances under which the state’s remark was made.

In his closing argument, defense counsel noted the paucity of eyewitnesses called to testify on the state’s behalf, and argued that “to prove [a crime] in a court of law you better come up with a witness. There is none in this whole case . . . .”

In rebuttal, the state argued that “[i]f there are only two people there, they are the only ones who can testify as to what happened. And the defendant doesn’t take the stand which is his right. That leaves only one person; that is the victim.” (Emphasis added.)

It is apparent that the remarks of the state’s attorney were invited by the comments of defense counsel. When a prosecutor’s allegedly improper argument is in direct response to matters raised by defense counsel, the defendant has no grounds for complaint. United States v. Estremera, 531 F.2d 1103, 1110 (2d Cir. 1976), cert, denied, 425 U.S. 979, 96 S. Ct. 2184, 48 L. Ed. 2d 807 (1976); United States v. Hoog, 504 F.2d 45, 50 (8th Cir. 1974).

In reviewing the challenged comment in the context of the entire trial; State v. Haskins, 188 Conn. 432, 457, 450 A.2d 828 (1982); we conclude that in the totality of the circumstances the defendant was not deprived of a fair trial.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-60 provides in pertinent part: “assault in THE second degree: class d felony, (a) A person is guilty of assault in the second degree when: . . . (2) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .”
      General Statutes § 53a-61 provides in pertinent part: “assault in the third degree: class a misdemeanor, (a) A person is guilty of assault in the third degree when: (1) With intent to cause physical injury to another person, he causes such injury to such person or to a third person . . . .” General Statutes § 53a-62 provides in pertinent part: “threatening: class a misdemeanor, (a) A person is guilty of threatening when: (1) By physical threat, he intentionally places or attempts to place another person in fear of imminent serious physical injury . . . .”

       The question posed to the victim by defense counsel and her reply are as follows:
      “Q. But you admit that you gave [the defendant] money when he asked for it?
      “A. I was supporting two habits.
      “Q. Your answer is yes?
      “A. Yes.”

       For example, prior misconduct may be allowed into evidence to prove “ ‘many different things, such as intent, identity, malice, motive or a system of criminal activity.’ ” State v. Brown, 199 Conn. 47, 56, 505 A.2d 1225 (1986).

       Because the transcript was prepared by a steno typist and not a court monitor, no audio recording of the actual testimony was made which could have been checked to test the veracity of the transcript. This observation, however, is not intended to inject this court into a controversy concerning the superiority of the services supplied by court reporters vis-a-vis court monitors.

       We note that appellate counsel did not try the case.

       “[General Statutes] Sec. 54-84. testimony or silence of accused. (a) Any person on trial for crime shall be a competent witness, and at his or her option may testify or refuse to testify upon such trial. The neglect or refusal of an accused party to testify shall not be commented upon by the court or prosecuting official, except as provided in subsection (b) of this section.
      “(b) Unless the accused requests otherwise, the court shall instruct the jury that they may draw no unfavorable inferences from the accused’s failure to testify. In cases tried to the court, no unfavorable inferences shall be drawn by the court from the accused’s silence.”

       The full text of the assistant state’s attorney’s comment on rebuttal regarding the defendant’s failure to testify is as follows: “Counsel made a deal of the fact that there was no witness at the threatening. There was no evidence at the first assault. Well, if there aren’t any witnesses, we are not going to put people on the witness stand to perjure themselves. If there are only two people there, they are the only ones who can testify as to what happened. And the defendant doesn’t take the stand, which is his right. That leaves only one person; that is the victim. We can’t put somebody else there and have somebody else testify as to what they saw when they didn’t see anything. So she is the only one that can testify as to what happened to her. And you saw the injuries.”


author: Foti, J.

text:
    The Stop and Shop Companies, Inc. v. Town of East Haven
    (5376)
    Dupont, C. J., Stoughton and Foti, Js.
    Argued November 3, 1987 —
    decision released February 9, 1988

      Christopher M. Reeves and Thomas A. Rouse, for the appellant (plaintiff).

      Hugh F. Keefe, for the appellee (defendant).
   Foti, J.

The plaintiff appealed to the Superior Court from a decision of the board of tax review of the defendant town. A state trial referee, acting as the trial court, dismissed the appeal. The plaintiff appeals from that dismissal. The plaintiff claims that the court erred in holding that the defendant properly assessed the plaintiffs personal property pursuant to General Statutes § 12-71 (b). We find no error.

The facts are not in dispute. The plaintiff owns real and personal property located in the town of East Haven. On October 1, 1985, the assessors for East Haven determined that the plaintiffs real property would be liable for taxation at a rate of 70 percent of its true and actual value as of October 1,1981, the date of the town’s last decennial revaluation. The assessors further determined that the plaintiff’s personal property would be liable for taxation at 70 percent of its true and actual value as determined on October 1,1985.

The plaintiff does not contest the legitimacy of the decennial revaluation of real property authorized by General Statutes § 12-62, nor the method by which real property is valued. General Statutes § 12-64. Rather, the plaintiff contends that the language of General Statutes § 12-71 (b) and its legislative history require that towns value real and personal property on the same date so that the two are taxed at the same effective rate, not merely at the same percentage of their assessed value. We disagree.

Prior to 1957, the legislature provided for the taxation of both real and personal property at its “true and actual valuation.” E. Ingraham Co. v. Bristol, 144 Conn. 374, 379, 132 A.2d 563 (1957). In that case, our Supreme Court was asked to reduce the plaintiffs’ personal property rate from 90 percent of the property’s actual value to 50 percent, the rate of taxation for real property. The court concluded that, although the practice of taxing real and personal property at a fraction of its actual value was so widespread as to be respectable, the practice was illegal because the statute required the taxing of both real and personal property at 100 percent of its value. Id., 377.

In response to the decision in E. Ingraham Co., the legislature revised General Statutes § 12-71 (b), changing the relevant portion of the statute from “[a]ll property subject to this section shall be valued at their then actual valuation” to “[a]ll property subject to this section shall be valued at the same percentage of its then actual valuation as the assessors have determined with respect to the listing of real estate for the same year. . . .” Statements made during the legislative hearings indicate an understanding that the change would eliminate the inequity that had existed when real and personal property were taxed at different fractions of their actual value.

The plaintiff contends that East Haven’s implementation of General Statutes § 12-71 (b) fails to carry out the intention of the legislature. The plaintiff also points out that because real property is subject to revaluation every ten years, real property retains its assessed value for that period whether its actual value increases or decreases; see Ralston Purina Co. v. Board of Tax Review, 203 Conn. 425, 525 A.2d 91 (1987); while personal property is valued annually. The plaintiff points out that real property located in the town of East Haven which comes into existence between revaluations is taxed at 70 percent of the value it would have had at the time of the last decennial revaluation. Personal property, by contrast, is taxed at 70 percent of its current value, the property’s value being determined annually on the first of October. The plaintiff contends, therefore, that because General Statutes § 12-71 (b) mandates that towns tax real and personal property at the same “percentage” of its then actual valuation as determined for real estate for the same year, there cannot be an inconsistency in when the value of the two types of property is determined.

In support of its argument that the defendant acted illegally in valuing the plaintiffs real and personal property on different dates resulting in different effective tax rates, the plaintiff cites at length from the legislative history of the statute. What is lacking from this history is any indication that the legislature intended a prohibition against the practice of valuing personal property annually.

At the time the legislature revised General Statutes § 12-71, both real property and personal property were required to be listed annually for taxation at their then actual value. The practice of requiring a decennial revaluation of property, however, was limited to real property. “ ‘The presumption is that the legislature, in adopting an act, does so in view of existing relevant enactments and with the intention that the act be read with them so as to make one consistent body of law.’ Wilson v. West Haven, 142 Conn. 646, 654, 116 A.2d 420 (1955).” Drisdelle v. Hartford, 3 Conn. App. 343, 345-46, 488 A.2d 465, cert, denied, 196 Conn. 801, 491 A.2d 1104 (1985).

“ ‘It is a fundamental principle of statutory construction that statutes are to be construed so that they carry out the intent of the legislature.’ State v. Campbell, 180 Conn. 557, 561, 429 A.2d 960 (1980); 2A Sutherland, Statutory Construction (4th Ed. Sands 1984) § 45.05. In construing a statute, this court will consider its plain language, its legislative history, its purpose and the circumstances surrounding its enactment. Peck v. Jacquemin, 196 Conn. 53, 64, 491 A.2d 1043 (1985); Dukes v. Durante, 192 Conn. 207, 214-15, 471 A.2d 1368 (1984).” State v. Parmalee, 197 Conn. 158, 161, 496 A.2d 186 (1985).

There is nothing in either the language of General Statutes § 12-71 (b) or its legislative history which calls into question the practice of revaluing real property every ten years but valuing personal property annually. This conclusion is consistent with the legislature’s decision to give tax assessors the authority to increase or decrease the “valuation of property” which appears on the town’s annual grand lists. General Statutes § 12-55. We conclude that this language provides for a permissive valuation of property in the years between the decennial revaluations, without requiring it. See Ralston Purina Co. v. Board of Tax Review, supra, 437. There is nothing in this language which requires that the assessors carry out interim revaluation of all classes of property if they revalue one class of property.

Rather, § 12-55 allows towns to engage in voluntary tax relief when property has decreased in value. See Ralston Purina Co. v. Board of Tax Review, supra, 430 n.5. If we were to conclude, as the plaintiff argues, that real property and personal property must be valued on the same date, we would vitiate the express language of § 12-55 because we would then be requiring that assessors treat real property and personal property in an identical fashion during the years between the decennial revaluation. We note that the nature of personal property lends itself to an annual valuation, often completely losing its useful value in a ten year period. Real property, by contrast, is durable and nearly always appreciates in value. See Ralston Purina Co. v. Board of Tax Review, supra. Furthermore, personalty is generally assessed annually at a lower value than each preceding year because it depreciates. Ralston Purina Co. v. Board of Tax Review, supra, 429. Thus, owners of personalty receive the benefit of a declining value each year for the purposes of taxation.

We conclude that there is no basis for rejecting the trial court’s conclusion that the town of East Haven acted within the authority granted to it by the legislature by taxing the plaintiff’s real and personal property as it did.

There is no error.

\

In this opinion the other judges concurred.

       General Statutes § 12-62 provides in relevant part: “periodic revaluation of real estate, (a) Commencing October 1, 1978, the assessors of all towns, consolidated towns and cities and consolidated towns and boroughs shall, no later than ten years following the last preceding revaluation of all real property and every ten years after each such revaluation, view all of the real estate of their respective municipalities, and shall revalue the same for assessment and, in the performance of these duties, except in any municipality where there is a single assessor, at least two of the assessors shall act together, and all valuations shall be separately approved by a majority of the assessors.”

       General Statutes § 12-64 provides in relevant part: “real estate liable to taxation. . . . (a) All the following-mentioned property, not exempted, shall be set in the list of the town where it is situated and, except as otherwise provided by law, shall be liable to taxation at a uniform percentage of its present true and actual valuation, not exceeding one hundred per cent of such valuation, to be determined by the assessors: Dwelling houses, garages, barns, sheds, stores, shops, mills, buildings used for business, commercial, financial, manufacturing, mercantile and trading purposes . . . .”

       General Statules § 12-71 (b) provides in relevant part: “All property subject to this section shall be valued at the same percentage of its then actual valuation as the assessors have determined with respect to the listing of real estate for the same year

       “I feel that a man who owns real property should pay the same as a man with personal property. . . . We have attempted to provide that the assessors may list real and personal property at a per cent of its fair market value less than one hundred per cent. In the statute pertaining to personal property it shall be at the same per cent of their then actual valuation as the assessors have determined with respect to the listing of real estate and personal property will be listed on the same percentage basis.” Conn. Joint Standing Committee Hearings, Judiciary and Governmental Functions, Pt. 3, 1957 Sess., p. 886, comments of Rep. Walter F. Torrents, Jr.
      “I must represent the thinking of the Tax Department and what I believe should be done. There is no question in my mind at all that there should be uniformity of percentage. . . .” Id., p. 892, comments of John L. Sullivan, State Tax Commissioner.

       In Ralston Purina Co. v. Board of Tax Review, 203 Conn. 425, 525 A.2d 91 (1987), the plaintiffs sought a revaluation of their real and personal property in the years between the decennial revaluation. Our Supreme Court held that a tov^n is not “required, as a matter of law, to adjust the plaintiffs’ tax assessment in the interim period between decennial revaluations of real property.” The court reached this conclusion after an exhaustive analysis of the relevant statutes. Our reading of Ralston Purina Co. is that the court confined itself to reaffirming its holding in Uniroyal, Inc. v. Board of Tax Review, 182 Conn. 619, 438 A.2d 782 (1981), that a town cannot be required to revalue real property in the years between the ten year revaluation, and that this interpretation applies to personal property as well. Although the effect of Ralston Purina Co. was to treat both realty and personalty in the manner which the plaintiffs in that case sought, the holding of Ralston Purina Co. v. Board of Tax Review, supra, 428, was limited to real property.

       The following hypothetical explains the implementation of General Statutes §§ 12-62, 12-64, and 12-71 (b) in the town of East Haven. Real property valued in 1981, during the ten year assessment, for $40,000 would continue to be taxed on that valuation for the next ten years regardless of appreciation or depreciation; real property which came into existence in 1985 and had an actual value of $100,000 in 1985 would have its value rolled back to 1981 values, e.g., $40,000. If, however, personal property came into existence in 1985 and had an actual value of $100,000 it would be taxed at 70 percent (the tax rate for real property in 1985) of its full value. Thus, the owner of personal property which has the same fair market value as real property for the 1985 tax year will pay substantially more tax.

       See footnote 4, supra.

       The authority for establishing tax policy lies with the legislature, not the courts. If, in fact, the legislature intended that real and personal property be taxed at the same effective rate and not merely at the same percentage of their assessed value, then the legislature must establish a requirement that real and personal property be valued on the same date.

       General Statutes (1949 Rev.) § 1788 provides: “REAL ESTATE liable to taxation. All the following mentioned property, not exempted, shall be set in the list of the town where it is situated and shall be liable to taxation at its present true and actual valuation: Dwelling houses, garages, barns, sheds, stores, shops, mills, buildings used for business, commercial, financial, manufacturing, mercantile and trading purposes, ice houses, warehouses, silos, all other buildings, house lots, all other buildings lots, shellfish lands, all other lands, quarries, mines, ore beds, fisheries, property in fish pounds and machinery. Any interest in real estate shall be set by the assessors in the list of the person in whose name the title to such interest stands on the land records.”
      General Statutes (1949 Rev.) § 1737 provides: “periodic revaluation OF real estate. The assessorsof all towns, consolidated towns and cites and consolidated towns and boroughs, unléss otherwise provided, shall, during each period of ten years after February 1, 1930, view all of the real estate of their respective municipalities, and shall revalue the same for assessment, and in the performance of these duties, except in any municipality where there in a single assessor, at least two of the assessors shall act together, and all valuations shall be separately approved by a majority of the assessors.”
      General Statutes (1949 Rev.) § 1745 provides in relevant part: “personal PROPERTY LIABLE TO TAXATION; SITUS; DESCRIPTION. All notes, bonds and stocks, not issued by the United States, moneys, credits, choses in action, vessels, except registered and enrolled sailing vessels, except barges engaged in trade between this and other states and except registered vessels which are actually engaged in foreign commerce, goods, chattels or effects, or any interest therein, belonging to any resident in this state, shall be set in his list in the town where he resides at their then actual valuation, except when otherwise provided by law.”
      We note that the statutory language which requires that property be revalued every ten years is still limited to real property; General Statutes § 12-62; though the holding oí Ralston Purina Co. v. Board of Tax Review, 203 Conn. 425, 525 A.2d 91 (1987), appears to apply this rule to personal property by judicial construction. By implication, therefore, the court concluded that towns cannot be required to revalue personal property more frequently than every ten years. Id., 438 n.15. This holding, however, does not prohibit more frequent revaluations by a town.

       General Statutes § 12-55 provides in relevant part: “lists; notice of increase; public inspection; abstracts. When the lists of any town have been so received or made by the assessors, they shall equalize the same, if necessary, and make any assessment omitted by mistake or required by law. The assessors may increase or decrease the valuation of property as named in any of such lists or in the last-preceding grand list . . . .”


author: Borden, J.

text:
    Nancy Burton v. Planning Commission of the Town of Redding et al.
    (5625)
    Dupont, C. J., Borden and O’Connell, Js.

      Argued December 2, 1987 —
    decision released February 9, 1988

      Nancy Burton, pro se, the appellant (plaintiff).

      Sharon A. Cregeen, with whom, on the brief, was MichaelN. LaVelle, for the appellee (named defendant).

      Gregory M. Perry, with whom, on the brief, were Marylouise S. Black and Harry H. Hefferan, Jr., for the appellee (defendant James E. McMurray).
   Borden, J.

The dispositive issue of this appeal is whether the timely filing of a memorandum of law in opposition to a motion to dismiss, pursuant to Practice Book § 143, is mandatory or directory. We conclude that this issue is controlled by the reasoning of our Supreme Court in Hughes v. Bemer, 200 Conn. 400, 510 A.2d 992 (1986), and we hold that the timely filing of such a memorandum of law is mandatory.

Certain facts are undisputed. The plaintiff appealed to the Superior Court from a decision of the named defendant, the planning commission of the town of Red-ding, approving the application of the codefendant, James E. McMurray, to subdivide his property. The plaintiff’s appeal was returnable on July 15,1986. The plaintiff alleged so-called “classical aggrievement.” The plaintiff also filed a notice of intervention pursuant to General Statutes § 22a-19.

On July 21,1986, McMurray filed, pursuant to General Statutes § 8-28 (b), and Practice Book §§ 143 and 145, a motion to dismiss the'plaintiff’s action, claiming that the appeal failed to set forth sufficient allegations of aggrievement, that the plaintiff, who lives several miles from the property, was not specially and injuriously affected by.the commission’s decision, and that, therefore, since the plaintiff had no standing to appeal, the court lacked subject matter jurisdiction over the appeal. McMurray also claimed in his motion to dismiss that the plaintiff had no standing to intervene pursuant to General Statutes § 22a-19 because there was no viable action in which to intervene. McMurray attached to his motion to dismiss an affidavit and memorandum of law. On August 13,1986, the commission filed a memorandum of law in support of McMurray’s motion to dismiss.

McMurray’s motion to dismiss was originally scheduled to be heard on the short calendar on Monday, September 22, 1986. The plaintiff and counsel for the defendants agreed that the matter could go off the short calendar for that date because of a conflict between that hearing and a hearing in a related case in another courthouse. McMurray’s motion to dismiss was then scheduled for short calendar on Monday, September 29, 1986. On Thursday, September 25, 1986, four days before the scheduled hearing on the motion to dismiss, the plaintiff filed a memorandum of law in opposition to the motion to dismiss, and mailed copies to the defendants’ counsel.

At the hearing on September 29, 1986, the defendants claimed that McMurray’s motion to dismiss must be granted because the plaintiff’s memorandum of law was filed four days before the hearing, rather than five days as required by Practice Book § 143. The plaintiff objected, claiming that her filing on September 25, 1986, was within the five-day time period, that any noncompliance with the rule was merely technical and that the defendants were not prejudiced by any untimeliness. The plaintiff did not ask the court to have the motion to dismiss go over to a subsequent short calendar so that her filing on September 25,1986, would be rendered “at least five days before the motion is to be considered on the short calendar . . . . ” Practice Book § 143. The court agreed with the defendants and granted the motion to dismiss. After certification for appeal was granted, the plaintiff appealed from the judgment dismissing the case.

The plaintiff first claims that the trial court erred because General Statutes § 8-28 (b), pursuant to which the motion to dismiss was filed, requires a hearing to be held thereon, and that the hearing cannot be waived without the plaintiffs consent. She argues that it was a violation of her due process rights to dismiss the case when she had substantially cured the defect. We are unpersuaded.

General Statutes § 8-28 (b) provides in pertinent part: “The court, upon the motion of the person who applied for the [planning] commission’s action or decision, shall make such person a party defendant in the appeal. Such defendant may, at any time after the return date of such appeal, make a motion to dismiss the appeal. At the hearing on such motion to dismiss, each appellant shall have the burden of proving his standing to bring the appeal. The court may, upon the record, grant or deny the motion.” (Emphasis added.) Although this section certainly requires a hearing on the motion to dismiss, it does not, as the plaintiff’s argument suggests, override procedural rules providing for such a hearing and providing for the automatic consent to the motion upon the noncompliance with those rules.

Practice Book § 143 is such a rule. It provides in pertinent part: “The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter .... This motion shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record. If an adverse party objects to this motion he shall, at least five days before the motion is to be considered on the short calendar, file and serve in accordance with Sec. 120 a memorandum of law and, where appropriate, supporting affidavits as to facts not apparent on the record. An adverse party who fails timely to file such a memorandum pursuant to the section shall be deemed by this court to have consented to the granting of the motion.” (Emphasis added.)

We do not read the language, “[a]t the hearing,” in General Statutes § 8-28 (b) to mean that the Practice Book rules providing for such a hearing must be ignored. Indeed, were we to do so we would be required to confront a constitutional question of the separation of powers between the legislature and the judiciary because of the possibility of a “legislative intrusion on the judicial rule-making function.” Fishman v. Middle-sex Mutual Assurance Co., 4 Conn. App. 339, 355, 494 A.2d 606 (1985). It is axiomatic that, whenever possible, statutes should be read so as to avoid constitutional questions. See, e.g., Lublin v. Brown, 168 Conn. 212, 219-20, 362 A.2d 769 (1975).

Nor did the procedure here violate the plaintiff’s right to due process. “Due process of law requires that a party be given his day in court and an opportunity to be heard.” Shaw v. Planning Commission, 5 Conn. App. 520, 525, 500 A.2d 338 (1985). The plaintiff was given her day in court by the assignment of the motion to dismiss at short calendar, of which she was given notice. She was given an opportunity to be heard at that hearing, conditioned on her compliance with Practice Book § 143, of which she was aware. The plaintiff has offered us no authority, and we are aware of none, that due process is violated by the application of a procedural rule which deems a party to have consented to a motion because of her failure to meet the requirement of the rule regarding timely filing of an important document.

The plaintiff next claims that her substantial compliance with Practice Book § 143, by filing her memorandum of law four days before the scheduled hearing, rather than five days as required by Practice Book § 143, was sufficient. We disagree because we are constrained to conclude that this claim is governed by the reasoning of our Supreme Court in Hughes v. Bemer, supra.

In Hughes, the trial court granted the defendants’ motion to strike the plaintiff’s complaint. Although the plaintiff had filed no memorandum of law in response to the defendants’ motion to strike, the trial court considered the motion on its merits and granted it. On appeal the defendants raised, for the first time, the failure of the plaintiff in the trial court to comply with Practice Book § 155, which provides in pertinent part: “If an adverse party objects to this motion [to strike] he shall, at least five days before the date the motion is to be considered on the short calendar, file and serve in accordance with Sec. 120 a memorandum of law. An adverse party who fails timely to file such a memorandum pursuant to this section shall be deemed by the court to have consented to the granting of the motion.”

The Supreme Court, over a vigorous dissent by She a, J., declined to consider the merits of the motion to strike and agreed with the defendants. The court held: “The filing of a memorandum of law setting forth the relevant arguments is mandatory under Practice Book § 155. Cf. Darling v. Waterford, 7 Conn. App. 485, 508 A.2d 839 (1986). The memorandum must be filed, or the motion to strike shall be granted.” (Emphasis in original.) Hughes v. Bemer, supra, 402-403.

Although Hughes concerned Practice Book § 155, we can discern no valid reason to render its holding inapplicable to the identical language of Practice Book § 143. Indeed, Justice Shea in his dissent recognized that its holding would apply to motions to dismiss pursuant to Practice Book § 143 as well. Furthermore, in Hughes even though the plaintiffs failure to file a memorandum of law was not raised in or relied on by the trial court, the Supreme Court held that the motion to strike was required to be granted by § 155. In contrast, in this case the defendants raised the plaintiffs noncompliance with the rule in the trial court and the trial court based its decision thereon. Thus, in that respect this case is a stronger case than Hughes for the automatic consent provision.

The plaintiff argues that in Pepe v. New Britain, 203 Conn. 281, 524 A.2d 629 (1987), the Supreme Court drew back from its holding in Hughes and read Hughes as resting on the fact that no memorandum of law at all had been filed. We disagree with the plaintiffs reading of Pepe. In Pepe, the court held that certain language in Practice Book § 380 regarding material to be timely submitted in opposition to a motion for summary judgment; “[t]he adverse party prior to the day the case is set down for short calendar shall file opposing affidavits and other available documentary evidence”; is not mandatory or jurisdictional. (Emphasis added.) Pepe v. New Britain, supra, 286-88. In referring to Hughes, however, the Pepe court distinguished Practice Book § 380 from § 155 on the basis that § 380 “does not contain any provision corresponding to the dictate of § 155 that the consequence of noncompliance with the rule is that the delinquent party ‘shall be deemed by the court to have consented to the granting of the motion.’ ” Pepe v. New Britain, supra, 287, quoting Practice Book § 155. The critical distinguishing factor in Pepe, therefore, was the absence in § 380 of the automatic consent language which is present in § 143.

It is true, as the plaintiff points out, that Hughes involved a total failure to file a memorandum of law, rather than as in this case, a late filing. That factual difference, however, does not suffice as a legally distinguishing factor. The language of Practice Book § 143; “[a]n adverse party who fails timely to file such a memorandum pursuant to this section shall be deemed by the court to have consented to the granting of the motion”; (emphasis added); which the court in Hughes held to be mandatory, simply does not permit such a distinction. The inclusion of the word “timely” in § 143 requires the conclusion that, if the filing of a memorandum of law is mandatory; Hughes v. Berner, supra; its timeliness is equally mandatory.

In this connection, we note that in 1983, Practice Book § 143 was amended. Prior to that time, the rule provided that, unless the court ordered otherwise, the motion to dismiss “does not require any responsive pleading but may be opposed by pleadings, appropriate affidavits and memoranda of law.” (Emphasis added.) Practice Book, 1978, § 143. In 1983, this language was deleted, and the second paragraph of the rule was added, which included the language that “[a]n adverse party who fails timely to file such a memorandum pursuant to this section shall be deemed by the court to have consented to the granting of the motion.” (Emphasis added.) This history lends support to the conclusion that the timeliness of the filing of the memorandum is mandatory.

It is also true that Hughes involved a motion to strike, whereas this case involves a motion to dismiss. The plaintiff argues that this difference distinguishes the two cases because after the granting of a motion to

strike the losing party may amend his pleading but after the granting of a motion to dismiss the plaintiff is out of court. We disagree. First, there is nothing in the emphatic language of Hughes to suggest such a distinction. Second, a plaintiff who pleaded all his available facts and is nonetheless deemed to have consented to his complaint being stricken for failure to state a claim upon which relief can be granted; Practice Book § 152 (1); because of his failure timely to file a memorandum of law in opposition to the motion, is just as effectively out of court as the plaintiff who is deemed to have consented to having his action dismissed because of the same failure. See, e.g., Hughes v. Bemer, supra.

The issue before us in this case is not whether we agree or disagree with Hughes v. Bemer, supra, or whether, if we were writing on a clean slate and employing the traditional mandatory-directory analysis; see, e.g., Rowe v. Godou, 12 Conn. App. 538, 543-44, 532 A.2d 978 (1987); we would conclude that the timeliness provision of Practice Book § 143 is directory rather than mandatory. As an intermediate appellate court, we must follow the precedent of our Supreme Court along the path which our considered reading of that precedent lays out for us. See, e.g., State v. Thurman, 10 Conn. App. 302, 309 n.5, 523 A.2d 891, cert, denied, 204 Conn. 805, 528 A.2d 1152 (1987). That path leads to the conclusion that Hughes v. Bemer, supra, governs this case, and that therefore the trial court did not err in dismissing the plaintiffs complaint.

There is no error.

In this opinion the other judges concurred.

       “[Practice Book] Sec. 143. — GROUNDS
      “The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service of process. This motion shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record.
      “If an adverse party objects to this motion he shall, at least five days before the motion is to be considered on the short calendar, file and serve in accordance with Sec. 120 a memorandum of law and, where appropriate, supporting affidavits as to facts not apparent on the record. An adverse party who fails timely to file such a memorandum pursuant to this section shall be deemed by the court to have consented to the granting of the motion.”

       The plaintiff is an attorney appearing pro se in this case.

       McMurray was not originally named as a defendant in the plaintiffs appeal. He intervened as a defendant pursuant to General Statutes § 8-28 (b).

       The plaintiff’s claim of aggrievement is that her three school-age children will in the future enroll as students in the John Read Middle School, that they will then drink water in the school, that the school’s drinking water is supplied by an aquifer which underlies the property in question, and that the approved subdivision will pollute the aquifer and thus the school’s drinking water.

       General Statutes § 22a-19 provides generally that any person, inter alia, may intervene in any judicial review of any administrative, licensing or other proceeding, and in any judicial review thereof, upon the filing of a “verified pleading asserting that the . . . action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resource of the state.” We have no occasion to consider whether General Statutes § 22a-19 applies to this case.

       “The provision .of § 155 that a plaintiff who fails to file a memorandum of law in opposition to a motion to strike ‘shall be deemed by the court to have consented to the granting of the motion’ parallels a similar provision of Practice Book § 143 pertaining to a motion to dismiss. Both of these provisions impose a sanction upon the party opposing the motions for failure to file a memorandum which is not available for a like neglect on the part of one who has filed a motion to strike or to dismiss without a supporting memorandum as specified by the rules. It appears that the sanction of dismissing or striking the pleading under the automatic consent provision is likely to be imposed much more frequently against plaintiffs than defendants.” Hughes v. Bemer, 200 Conn. 400, 404-405, 410 A.2d 992 (1986), (Shea, J., dissenting).


author: Per Curiam.

text:
    Dorothy Siefert v. Paul Barrett, Jr., Conservator (Estate of Rose Siefert)
    (5375)
    Daly, Norcott and Fofi, Js.
    Argued December 9, 1987 —
    decision released February 9, 1988

      Benjamin M. Chapnick, for the appellant (plaintiff).

      David J. Scully, for the appellee (defendant).
   Per Curiam.

The plaintiff appeals from the trial court’s granting of the defendant’s motion to dismiss an administrative appeal for want of jurisdiction. The sole issue raised on appeal is whether the trial court erred in not considering the plaintiff’s timely amendment which allegedly would have cured the allegedly defective original administrative appeal. We find no error.

The facts of this case indicate that the plaintiff never filed a memorandum of law in opposition to the defendant’s motion to dismiss. Practice Book § 143 provides in relevant part: “If an adverse party objects to [a motion to dismiss] he shall, at least five days before the motion is to be considered on the short calendar, file and serve in accordance with Sec. 120 a memorandum of law and, where appropriate, supporting affidavits as to facts not apparent on the record. An adverse party who fails timely to file such a memorandum pursuant to this section shall be deemed by the court to have consented, to the granting of the motion.” (Emphasis added.) In Burton v. Planning Commission, 13 Conn. App. 400, 405, 536 A.2d 995 (1988), we held that the provisions of Practice Book § 143 are mandatory and not merely directory and that in the event that a memorandum of law in opposition to a motion to dismiss is not filed within the appropriate time frame the motion to dismiss shall be granted. We find that this case is not distinguishable from Burton. Since we find that this case is controlled by our holding in Burton, we need not address the merits of the plaintiffs appeal.

There is no error.


text:
    Georgianna Czaja v. Joseph Sallak et al.
    (5609)
    Borden, O’Connell and Stoughton, Js.
    Argued January 5 —
    decision released February 9, 1988

      Donald J. McCarthy, Jr., with whom, on the brief, was Kirby G. Huget, for the appellant (plaintiff).

      Gregory M. Harris and Richard J. Guiliani, for the appellees (defendants).
   Per Curiam.

The plaintiff appeals from the judgment of the trial court dismissing her appeal from a decision of the probate court for the district of Haddam. That decision denied the plaintiffs application for appointment of a conservator of the named defendant, her father. The trial court granted the motion to dismiss filed by the defendant James Wiknik, the named defendant’s grandson, on the ground that the plaintiff had not sufficiently alleged aggrievement.

It is not necessary to address the merits of the plaintiff’s claims of error, because this appeal is controlled by our recent decision in Burton v. Planning Commission, 13 Conn. App. 400, 536 A.2d 995 (1988). In Burton, we held that the timely filing of a memorandum of law in opposition to a motion to dismiss, pursuant to Practice Book § 143, is mandatory, and that noncompliance with the five-day time period mandated by § 143 required that the motion be granted without regard to its merits. Burton rested on our reading of the decision of our Supreme Court in Hughes v. Berner, 200 Conn. 400, 510 A.2d 992 (1986), which held the identical language of Practice Book § 155 to be mandatory. As in Hughes v. Berner, supra, 402, the defendants in this case rely on the plaintiff’s noncompliance with Practice Book § 143 as an alternate ground on which to sustain the judgment of the trial court. See Practice Book §§ 4013 (a) (1) and 4066 (a). This claim of the defendants is dispositive of this appeal.

The trial court record discloses that on June 2,1986, one of the defendants, Wiknik, filed a motion to dismiss the plaintiffs appeal from the probate court, together with a memorandum of law in support thereof. On June 15, 1986, the plaintiff filed a motion for extension of time to file her memorandum of law in opposition to the motion to dismiss. No action was taken on that motion. The motion to dismiss was heard on October 14, 1986. The plaintiffs memorandum of law was filed at 9:48 a.m. on that day. The trial court, nonetheless, addressed the merits of the motion to dismiss, and granted the motion. We are precluded from reaching the merits of the plaintiffs claims of error because she did not comply with the mandate of Practice Book § 143 to file a timely memorandum of law in opposition to the defendant's motion to dismiss. This noncompliance means that the plaintiff “shall be deemed by the court to have consented to the granting of the motion.” Practice Book § 143; Burton v. Planning Commission, supra.

There is no error.

       “[Practice Book] Sec. 143. — grounds
      “The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service of process. This motion shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record.
      “If an adverse party objects to this motion he shall, at least five days before the motion is to be considered on the short calendar, file and serve in accordance with Sec. 120 a memorandum of law and, where appropriate, supporting affidavits as to facts not apparent on the record. An adverse party who fails timely to file such a memorandum pursuant to this section shall be deemed by the court to have consented to the granting of the motion.”

       At oral argument in this court, the plaintiff suggested that at short calendar in the trial court, she asked the defendants if they needed more time to respond thereto. This cannot be determined from this record, however, nor can the response of the defendants, because the plaintiff has not filed in this court a transcript of the short calendar argument. Nor does the plaintiff claim that she requested the court to continue the matter so that her filing on that date would comply with § 143.


text:
    State of Connecticut v. Jerry Blevins
    (5242)
    Daly, Norcott and Foti, Js.

      Argued December 10, 1987 —
    decision released February 9, 1988

      Eric D. Daniels, special public defender, for the appellant (defendant).

      Carolyn K. Longstreth, deputy assistant state’s attorney, with whom, on the brief, was John H. Malone, assistant state’s attorney, for the appellee (state).
   Foti, J.

After a jury trial, the defendant was convicted of the crimes of sexual assault in the first degree in violation of General Statutes § 53a-70, and burglary in the second degree in violation of General Statutes § 53a-102. The defendant claims on appeal that: (1) his constitutional rights were violated by a warrantless search; (2) he was not properly advised of his constitutional rights; (3) the court erred in denying his motion to suppress his identification; (4) the court erred in striking testimony regarding the physical condition of the defendant; (5) the court erred in failing to grant a mistrial; (6) there was insufficient evidence to convict; and (7) there was ineffective assistance of counsel. We find no error.

The jury could reasonably have found the following facts. On July 6, 1980, at about 3 a.m., the victim felt her bed move and opened her eyes to see the figure of a short black man on the bed. He placed a pillow over her head and said: “Shut up, don’t move or I’ll kill you.” He then sexually assaulted her while holding a sharp instrument to her side.

The intruder spoke during the assault, and the victim thought that she recognized his voice as that of the man who lived in the apartment directly above her apartment. The intruder stayed in the victim’s apartment for approximately fifteen minutes. Seconds after the intruder had left, the victim saw him run by her bedroom window toward the rear of the building. She then heard someone climb the back stairs of the building and slam the door and run through the kitchen of the upstairs apartment.

At about 4:00 a.m., while at New Britain General Hospital, the victim informed the police that she believed her assailant resided in the apartment directly above her apartment. The police went to that apartment and after knocking on the door heard a man’s voice. A woman opened the door and told the police that there were no men residing in the apartment. The officers were admitted to the apartment where they found a man fully clothed in the shower; he was taken into custody after the police learned there were outstanding warrants for his arrest. The defendant subsequently came out of the bedroom and stated that he resided in the apartment. He was asked to accompany the police to the station, which he did.

The defendant, who was not handcuffed, was driven to the police station and asked to sit in the lobby near the door. He was not guarded, and sat alone. Thereafter, he was asked to step into a small room with a one-way mirror along with the man who had been taken into custody in the apartment.

The victim observed both men and identified the defendant as the man who had committed the assault. She asked to hear both suspects’ voices to confirm her identification. Both men were removed from her vision and each was asked to repeat the words “shut up, don’t move or I’ll kill you.” The second male spoke first and the victim stated that he was not her assailant. When the defendant spoke the same words, the victim immediately identified his voice as that of the intruder who had sexually assaulted her, and stated that she was 100 percent certain of this identification.

I

The defendant first claims that the trial court erred in denying his motion to suppress the defendant’s out-of-court and in-court identifications as fruits of an unreasonable warrantless search in violation of his constitutional rights. We do not agree.

The state has the burden of showing the voluntariness of a claimed consent to the entry or search of a home by police. State v. Jones, 193 Conn. 70, 79, 475 A.2d 1087 (1984). The state makes no claim that the entry into the defendant’s apartment and the subsequent search was conducted pursuant to a warrant. “Although under the fourth amendment a warrantless entry into a suspect’s home in order to make a routine felony arrest is presumptively unreasonable; Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980); a search which has been undertaken pursuant to consent of an occupant of the premises constitutes a waiver of the warrant requirement. United States v. Matlock, 415 U.S. 164, 169, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974); State v. Gallagher, 191 Conn. 433, 437, 465 A.2d 323 (1983).” State v. Cobbs, 7 Conn. App. 656, 658, 510 A.2d 213 (1986); State v. Delgado, 13 Conn. App. 139, 147, 535 A.2d 371 (1987). The voluntary character of the consent is a question of fact to be determined from the totality of circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 221, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973); State v. Cardona, 6 Conn. App. 124, 134, 504 A.2d 1061 (1986). The trial court’s ruling is not to be disturbed unless it is clearly erroneous. State v. Van Der Werff, 8 Conn. App. 330, 341, 513 A.2d 154, cert. denied, 201 Conn. 808, 515 A.2d 380 (1986). The ultimate question “is whether the will of the consenting individual was overborne, or whether the consent was his unconstrained choice.” State v. Cobbs, supra, 659.

The trial court found that the officers were voluntarily allowed into the apartment, and that finding is supported by the record. Although the woman who allowed them to enter was not advised that she need not comply with their request, and although knowledge of the right to refuse to consent to entry is an important element in the determination of voluntariness; Dotson v. Warden, 175 Conn. 614, 619, 402 A.2d 790 (1978); such advice is not a prerequisite to voluntary consent. Schneckloth v. Bustamonte, supra. It is uniquely the function of the trier of facts to weigh the evidence and assess the credibility of witnesses. State v. Coriano, 12 Conn. App. 196, 203, 530 A.2d 197 (1987). We cannot conclude that the trial court’s findings are clearly erroneous.

We note that even if the initial detention of the defendant had been illegal the subsequent identification of him was free from any taint of illegality under the circumstances present here. See United States v. Crews, 445 U.S. 463, 469, 100 S. Ct. 1244, 63 L. Ed. 2d 537 (1980); State v. Bruno, 1 Conn. App. 384, 387, 473 A.2d 311 (1984), aff d, 197 Conn. 326, 497 A.2d 758 (1985), cert, denied, 475 U.S. 1119, 106 S. Ct. 1635, 90 L. Ed. 2d 181 (1986).

II

The defendant next claims that he was under an implied arrest and therefore should have been given his Miranda warnings. He asserts that his constitutional right to have counsel present attaches during a voice identification. We do not agree.

It is clear that identification procedures such as lineups and the taking of fingerprints and blood or voice samples do not violate fifth amendment rights. United States v. Wade, 388 U.S. 218, 221, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967); Schmerber v. California, 384 U.S. 757, 761, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966). The privilege against self-incrimination protected by the fifth amendment to the United States constitution cannot be invoked in a situation where a suspect is merely required to provide evidence of physical characteristics. The right to the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), had, therefore, not yet attached. Kirby v. Illinois, 406 U.S. 682, 687-88, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972).

Ill

The defendant next claims that the identification of his voice and his subsequent identification should have been suppressed because the procedure employed was unnecessarily suggestive, and, based upon an examination of the totality of the circumstances, the identification itself was not otherwise reliable. Specifically, he claims the prior viewing made the subsequent voice identification unnecessarily suggestive. We do not agree.

It is required, pursuant to the due process clause of the fourteenth amendment to the United States constitution that any identification be excluded if the procedure employed to obtain that identification was impermissibly suggestive. Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968). “In order to establish that a pretrial identification procedure has violated a defendant’s constitutional right to due process, the defendant must prove (1) that the identification procedure was unnecessarily suggestive, and (2) that the resulting identification was not reliable under the totality of the circumstances.” State v. Hunt, 10 Conn. App. 404, 407, 523 A.2d 514 (1987); see also State v. Williams, 203 Conn. 159, 173, 523 A.2d 1284 (1987); State v. Doolittle, 189 Conn. 183, 190, 455 A.2d 843 (1983).

The victim viewed both suspects before listening to them speak, but at the time she heard the voice exemplars she could not see either of them. The two men also repeated the identical phrase. Both were suspects since both were found in the apartment into which the intruder was believed to have fled. The fact that only two exemplars were heard does not cause the procedure to be unnecessarily suggestive.

Further, the identification was not unreliable considering the totality of the circumstances. The victim had heard the defendant’s voice on several occasions prior to the assault and had ample opportunity to hear it during the time he was in her apartment. Finally, the time interval between the incident and the voice identification was not longer than four hours. She responded to the defendant’s voice immediately, thus, the court was not in error in finding that under the totality of circumstances the identification was reliable and the procedure not unnecessarily suggestive. State v. Daniels, 13 Conn. App. 133, 135, 534 A.2d 1253 (1987).

We have considered the defendant’s other claims of error, and, upon a careful review of the record and briefs, and affording the appropriate scope of review to all of the claims of error raised by the defendant in his remaining four challenges, we find no merit to these claims.

There is no error.

In this opinion the other judges concurred.

       The jury also returned a verdict of guilty on a third count of the crime of failure to appear in the first degree, a violation of General Statutes § 53a-172 (a), from which the defendant took no appeal.

       The defendant made no other claims under the fifth amendment. The defendant does not claim that he was questioned either before or during visual or voice identification procedures. Immediately following the voice identification he was placed under arrest, given his Miranda warnings, and exercised his right to silence.