author: SCHALLER, J.

text:
    ANTHONY JULIAN RAILROAD CONSTRUCTION COMPANY, INC. v. MARY ELLEN DRIVE ASSOCIATES ET AL.
    (AC 17379)
    O’Connell, C. J., and Schaller and Dupont, Js.
    Argued June 2
    officially released September 8, 1998

      Thomas B. Pursell, for the appellant (plaintiff).

      Edward R. Scofield, for the appellee (defendant Patrick R. Pacelli).
   Opinion

SCHALLER, J.

The plaintiff, Anthony Julian Railroad Construction Company, Inc., appeals from the trial court’s refusal to issue a property execution, pursuant to General Statutes § 52-356a, for the claimed unsatisfied portion of a mechanic’s lien foreclosure judgment. On appeal, the plaintiff claims that the trial court abused its discretion by failing to issue the property execution for which the plaintiff properly applied. We affirm the judgment of the trial court.

The following relevant facts are recited in our decision in Anthony Julian Railroad Construction Co. v. Mary Ellen Drive Associates, 39 Conn. App. 544, 664 A.2d 1177, cert. denied, 235 Conn. 930, 667 A.2d 800 (1995). “On December 28,1987, the plaintiff, a construction company, entered into contracts with [Patrick R.] Pacelli and three others who were principals in Mary Ellen Drive Associates and T.K.P. Associates, two general partnerships. The contract was for site development of a residential subdivision known as Nicole Estates in Milford. The plaintiff contracted to build the roadways for the subdivision. On March 23, 1988, the plaintiff and the defendants signed a waiver of mechanic’s lien related to the subdivision. On April 1,1988, the plaintiff commenced work. The plaintiff stopped work on March 2, 1989, due to nonpayment. At this time, there remained an estimated $150,000 of work left to complete the job. On April 26, 1989, the plaintiff filed a mechanic’s lien in the amount of $400,164. The plaintiff subsequently returned to the site to perform additional work and services.

“On September 13, 1989, the plaintiff commenced this action against several defendants seeking to foreclose the mechanic’s lien in the original principal amount of $400,164. The complaint, and each of the amended complaints as filed, alleged work performed after the date of the filing of the lien. The prayer for relief claimed money damages. The case was tried before a state trial referee on December 2 and 3, 1992. The first issue presented to the court was whether the plaintiff, by executing the March 23, 1988 lien waiver, had waived its right to file and foreclose the mechanic’s lien. The court held that there was no waiver of the hen by the plaintiff. The court then analyzed whether the plaintiffs hen had priority over competing claims by the defendant UST Bank/Connecticut [UST Bank], a bank that held a mortgage on the property. The court held that the plaintiffs hen did have priority over the mortgage of [UST Bank]. The court found for the plaintiff in the amount of $315,164 for work done prior to the filing of the hen and $87,441.42 for work performed after the filing of the hen. On January 3, 1994, the trial court rendered a judgment of strict foreclosure in favor of the plaintiff.” Id., 545-46.

The trial court found the fair market value of the property to be $825,000 and set the first law day at January 25, 1994. Prior to the running of this law day, the defendants UST Bank and Robert D. Scinto filed an appeal challenging the trial court’s determination regarding the priority of the mechanic’s hen. This appeal was docketed as AC 13212. In addition, Pacehi filed an appeal challenging the trial court’s award of damages for work performed after the filing of the mechanic’s hen. This appeal was docketed as AC 13244.

During the pendency of those appeals, the plaintiff negotiated settlements with UST Bank and Scinto that called for the payment of $325,000 to the plaintiff in exchange for the release of the mechanic’s lien. The parties to that settlement complied with its terms, and on December 28, 1994, the plaintiff filed a notice of partial satisfaction of judgment with the trial court. Accordingly, the appeal in AC 13212 was withdrawn by UST Bank and Scinto.

We decided the issue that was raised in Pacelli’s appeal (AC 13244) as reported in Anthony Julian Railroad Construction Co. v. Mary Ellen Drive Associates, supra, 39 Conn. App. 544. In that case, we held that the trial court’s award of damages for work performed after the filing of the mechanic’s lien was proper under the mechanic’s lien statute, General Statutes § 49-33. In reaching that conclusion, we relied on the fact that the pleadings properly presented the issue of the recover-ability for work performed after the filing of the lien. Because the pleadings presented only the statutory remedy of a mechanic’s lien, we concluded that the trial court’s award was proper.

Following our decision in that case, no further action was taken in the foreclosure proceeding. The plaintiff did not file a motion for the trial court to open the foreclosure judgment to set new law days and, as a result, the foreclosure action remained dormant. On March 19, 1997, however, the plaintiff applied for a property execution. The trial court denied the application and this appeal followed.

I

The plaintiff first claims that the trial court improperly conducted a hearing on its application for a property execution because under § 52-356a, issuance of such an execution is purely a ministerial act by the court clerk once the clerk is presented with a properly executed application with respect to a valid judgment that remains unsatisfied. We are not persuaded.

As a preliminary matter, we note that the plaintiff, in its brief, has essentially abandoned this claim. The plaintiff states that “[i]t must be conceded that the trial court does have supervisory control over the process of an execution.” We are in complete agreement with the plaintiffs statement of the law. See generally Gainty v. Russell, 40 Conn. 450, 450-51 (1873); Gager v. Watson, 11 Conn. 168, 171 (1836).

Moreover, we analogize the trial court’s action in holding a hearing on the propriety of the issuance of an execution in this case to the common law writ of audita querela. “The ancient writ of audita querela has been defined as a writ issued to afford a remedy to a defendant against whom judgment had been rendered, but who had new matter in defense (e.g., a release) arising, or at least raisable for the first time, after judgment. . . . Because the writ impairs the finality of judgments, the common law precluded its use in cases in which the judgment debtor sought to rely on a defense such as payment or a release that he had the opportunity to raise before the entry of judgment against him. . . . No authority has been cited to suggest that the writ of audita querela was ever available to present issues which were presented before the entry of the judgment attacked by the writ. . . . The writ of audita querela provides relief from a judgment at law because of events occurring subsequently which should cause discharge of a judgment debtor.” (Citations omitted; internal quotation marks omitted.) Ames v. Sears, Roebuck & Co., 206 Conn. 16, 20-21, 536 A.2d 563 (1988).

This case provides an appropriate context for the application of this common law writ. Here, matters have arisen subsequent to the entry of the judgment that render it inequitable to allow the plaintiff to execute on the property. Those subsequent events consist of a negotiated settlement with two of the defendants in this action after the judgment of strict foreclosure was rendered, along with the release of the mechanic’s lien, which is the sole means of recovery that was pleaded by the plaintiff in this action. Thus, while the writ of audita querela was not specifically sought in this case, the existence of such a writ provides analogous authority that enables a court of equity to supervise its judgments and to control the issuance of executions. We conclude, therefore, that the trial court properly conducted a hearing with respect to the plaintiff s application for a property execution.

II

The plaintiff next claims that the trial court improperly failed to issue an execution when its application complied with all of the statutory requirements of § 52-356a. We disagree because we hold that a property execution is an improper remedy in this action for foreclosure of a mechanic’s lien.

At the outset, we note that our decision in Anthony Julian Railroad Construction Co. v. Mary Ellen Drive Associates, supra, 39 Conn. App. 544, held that the trial court’s award of damages for work performed after the mechanic’s lien was filed was properly includable in the lien that was originally filed. “The plaintiff argues that it returned to perform work because it was obligated to do so, having posted a performance bond. It argues that the defendants were aware of the continuing improvement work, and derived benefit from this work. We agree that to hold that the lien does not attach to the subsequent work would penalize the plaintiff and require additional cost and expense for filing additional liens each time the plaintiff returned to perform additional work. ‘[I]t is contrary to equity and good conscience for the defendant to retain a benefit which has come to him at the expense of the plaintiff.’ National CSS, Inc. v. Stamford, 195 Conn. 587, 597, 489 A.2d 1034 (1985). . . . Our review of the pleadings leads us to conclude that the trial court acted properly in rendering judgment on the basis of the pleadings and evidence as presented for work done to the property after the filing of the lien.” Anthony Julian Railroad Construction Co. v. Mary Ellen Drive Associates, supra, 548-49.

On the basis of our holding in that case, we interpret the complete award of the trial court as one judgment relating to work performed both before and after the filing of the lien. The concurring opinion in that case acknowledged that the majority’s holding included within the lien the award for the work performed after the lien was filed. There was, therefore, one judgment of foreclosure of a mechanic’s lien, not a separate award of money damages in addition to the mechanic’s lien. Accordingly, this determination became the law of the case.

Having decided that there was only one judgment in this case in the form of a foreclosure of a mechanic’s hen, we now look to the nature of the statutory remedy of a mechanic’s lien. “Any mechanic’s lien may be foreclosed in the same manner as a mortgage.” General Statutes § 49-33 (h). “In all essential respects the attributes of foreclosure of mortgages apply to mechanics’ liens.” City Lumber Co. of Bridgeport, Inc. v. Murphy, 120 Conn. 16, 19, 179 A. 339 (1935). “In Connecticut, a mechanic’s hen is a creature of statute and estabhshes a right of action where none existed at common law. Martin Tire & Rubber Co. v. Kelly Tire & Rubber Co., 99 Conn. 396, 403, 122 A. 102 (1923).” H. G. Bass Associates, Inc. v. Ethan Allen, Inc., 26 Conn. App. 426, 429, 601 A.2d 1040 (1992). Where a statutory right of action is at issue, the statute must be strictly construed, and the statutory remedy selected is the plaintiffs sole right of recovery.

We now turn to the question of whether it is proper under our statutes for the party obtaining a judgment of foreclosure of a mechanic’s lien to obtain a property execution. Section 52-356a (a) (1) provides in relevant part that “[o]n application of a judgment creditor . . . the clerk of the court in which the money judgment was rendered shall issue an execution . . . .” (Emphasis added.) According to General Statutes § 52-350a (10), a judgment creditor is “a person in whose favor a money judgment was rendered . . . .” A money judgment is a “judgment, order or decree of the court calling in whole or in part for the payment of a sum of money, other than a family support judgment. . . .” General Statutes § 52-350a (13).

Neither of those definitions has been satisfied in this case. The trial court rendered a judgment of strict foreclosure and set the law days. The plaintiff then settled with two of the defendants and agreed to release the mechanic’s lien from the property. Once the plaintiff limited itself to the statutory remedy of a mechanic’s lien in this case, it was prevented from switching remedies in midstream to obviate its own act of settling with two of the defendants and releasing the mechanic’s lien from the subject property. Once the mechanic’s lien was released, the plaintiffs sole mechanism for enforcing its foreclosure judgment was extinguished. Once the plaintiff proceeded to foreclose the mechanic’s lien, its sole remedy was to proceed with the foreclosure process. Upon releasing the mechanic’s lien without taking title to the property in the foreclosure proceeding, the plaintiff in essence waived its right of recovery in this case. We conclude, therefore, that the trial court properly denied the plaintiffs request for a property execution.

Ill

The plaintiff finally claims that the trial court abused its discretion in failing to issue an execution after the plaintiff filed a properly executed application for a property execution. In light of our conclusion in part II of this opinion that a property execution is an improper remedy in this action for foreclosure of a mechanic’s lien, we need not address this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-356a (a) provides in relevant part: “ (1) On application of a judgment creditor or his attorney, stating that a judgment remains unsatisfied and the amount due thereon, and subject to the expiration of any stay of enforcement and expiration of any right of appeal, the clerk of the court in which the money judgment was rendered shall issue an execution pursuant to this section against the nonexempt personal property of the judgment debtor other than debts due from a banking institution or earnings. The application shall be accompanied by a fee of ten dollars payable to the clerk of the court for the administrative costs of complying with the provisions of this section which fee may be recoverable by the judgment creditor as a taxable cost of the action. . . . The execution shall be directed to any levying officer.”

       "The total of the plaintiffs claim for materials furnished and services rendered was $1,446,389. As of March 2, 1989, the plaintiff had received payments totaling $896,225, leaving a balance of $550,164.” Anthony Julian Railroad Construction Co. v. Mary Ellen Drive Associates, supra, 39 Conn. App. 545 n.2.

         $150,000 worth of work left to complete the job was applied as a credit by the plaintiff to the balance due prior to the filing of the lien.” Anthony Julian Railroad Construction Co. v. Mary Ellen Drive Associates, supra, 39 Conn. App. 545 n.3.

       The defendants most relevant to this appeal, in addition to Mary Ellen Drive Associates and one of its partners, Pacelli, were UST Bank/Connecticut and Robert D. Scinto.

       “The plaintiff filed amended complaints on October 1, 1990, October 18, 1991, and April 10, 1992.” Anthony Julian Railroad Construction Co. v. Mary Ellen Drive Associates, supra, 39 Conn. App. 545 n.4.

       “The amended complaint filed on April 10, 1992, alleged that ‘[t]he plaintiff commenced to furnish materials and services on April 21, 1988 and ceased furnishing materials and rendering such services on or about March 2, 1989, but has returned to perform additional services since the filing of the Mechanic’s Lien.’ ” Anthony Julian Railroad Construction Co. v. Mary Ellen Drive Associates, supra, 39 Conn. App. 545 n.5.

       “The plaintiffs demand for relief sought:
      T. The amount, legal interest of property in demand is greater than Fifteen Thousand ($15,000) and 11/100 Dollars, exclusive of interest and costs.
      ‘2. A foreclosure of the mechanic’s lien.
      ‘3. Immediate possession of the premises.
      ‘4. Damages within the jurisdiction of the court.
      ‘5. A deficiency judgment against the defendants.
      ‘6. Reasonable attorney’s fees and costs.
      7. Such other and further equitable relief as may be required.’ ” Anthony

        Julian Railroad Construction Co. v. Mary Ellen Drive Associates, supra, 39 Conn. App. 546 n.6.

       “The trial court increased the credit for work left to complete the job prior to filing the lien from $150,000 to $235,000, leaving abalance of $315,164. The court mitigated the amount of damages due and owing the plaintiff after reviewing the data on the work that was performed.” Anthony Julian Railroad Construction Co. v. Mary Ellen Drive Associates, supra, 39 Conn. App. 546 n.8.


source: Caselaw Access Project

author: LANDAU, J.

license: Public Domain

text:
    IN RE ANNA B. ET AL.

    (AC 17614)
    Foti, Landau and Kulawiz, Js.
    Argued June 4, 1998
    officially released September 8, 1998

      Dale H. King, for the appellant (respondent mother).

      William G. Bumpus, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book (1998 Rev.) § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

LANDAU, J.

This is an appeal by the respondent mother (respondent) from the judgment of the trial court terminating her parental rights with respect to her twin children, Anna and Philip, pursuant to General Statutes § 17a-112 (c) (3). The trial court found that the allegations in the petitions for termination had been proven by clear and convincing evidence, and that it was in the best interest of each child that the parental rights of the respondent be terminated.

On appeal, the respondent claims that the trial court improperly (1) admitted as full exhibits, certain social studies, over hearsay objections, and (2) found (a) that the petitioner had proven by clear and convincing evidence that the respondent mother had failed to achieve such a degree of personal rehabilitation as would encourage the belief that within a reasonable time she could assume a responsible position in the lives of the children pursuant to § 17a-112 (c) (3) (B), (b) that the children were denied the care, guidance or control necessary for their physical, educational or emotional well-being pursuant to § 17a-112 (c) (3) (C) and (c) that the respondent mother had been unsuccessful in making any meaningful attempt to adjust her circumstances to facilitate reunification pursuant to General Statutes § 17a-112 (e). We affirm the judgment of the trial court.

The following facts and procedural history are pertinent to our resolution of this appeal. Anna and Philip were adjudicated neglected on April 5,1991, and placed under the protective supervision of the petitioner for six months. Anna and Philip have two half-brothers, Franklin and Arthur. The trial court found that “the twins’ oldest half-brother, Franklin B., Jr., is [at the time of the hearing] 22 years of age. He is mentally retarded and has a documented history of multiple instances of sexually inappropriate behavior with children outside the family, which resulted in his arrest and a referral to a program for mentally retarded sex offenders in 1992. He was adjudicated not competent to stand trial for an alleged sexual offense as a juvenile.” The twins’ other half-brother, Arthur, was twenty years of age at the time of the hearing. The trial court found that “[h]is negative, impulsive aggressive behavior has resulted in out of home placements . . . .”

The trial court found that “[in] February, 1993, Anna, age three and one-half, disclosed to various responsible adults, including a social worker at the Yale Sexual Abuse Clinic, that her brother, Franklin B., Jr., age seventeen and one-half, had been sexually abusing her . . . [that] her twin brother, Philip, had been genitally fondled by Franklin and, that the half-brother, Arthur, then age sixteen, had participated in the sexually inappropriate behavior with the twins.”

In March, 1993, the petitioner placed the twins in foster care, where they have since remained. The trial court set expectations, which included the removal of Franklin from the respondent’s home. The petitioner was willing to consider returning Anna and Philip to their mother if Franklin was placed out of the home. The trial court found, however, that Anna and Philip were not returned because Franklin’s removal did not occur. The petitioner filed a petition for the termination of parental rights in April, 1996, which the trial court granted on August 22, 1997.

The trial court stated that “[t]he parents were waiting for the department of mental retardation to find a placement for Franklin. The respondent made no other efforts to place Franklin, then nearly age eighteen, so that they could be reunited with the four year old twins, this despite the fact that, according to a witness for the mother, Franklin was ‘able to care for himself.’ As between promptly relocating Franklin, even temporarily while waiting for a department of mental retardation placement, and leaving the twins in foster care, the parents elected to leave the twins in foster care.” The trial court further found that “notwithstanding the impressive prior history of Franklin as a sexual exploiter of children, [the respondent] did not believe Anna and did nothing to protect her from further abuse. . . . Anna was victimized by a male family member, victimized by her own mother’s disbelief and victimized by a removal from her family, a move compelled by [the respondent’s] failure to protect her. More than four years later, [the respondent] remains in denial, has been unimproved by therapy and has profound unresolved parenting limitations.”

The children began to fear their mother’s outbursts at visitation periods with her. Anna and Philip bonded with their foster family, and neither child wanted to see their mother and her husband again. The trial court found that there is “an extensive history of neglect and poor parenting,” and that the respondent’s “social history is replete with references to the mother’s poor personal hygiene and, more importantly, her volatile and inappropriate behavior.” The court further found that the mother “still refuses to acknowledge” the sexual victimization of the twins.

With respect to the statutory grounds for termination of parental rights, the trial court found, by clear and convincing evidence, that the children were previously found to be neglected. It found that the respondent “has failed to achieve such a degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the children, she could assume a responsible position in the life of these children” and, further, that “the children have been denied, by reason of an act of commission or omission, the care, guidance or control necessary for their physical, educational or emotional well-being, i.e., the mother has failed to protect her children from sexual abuse.” The court found that the grounds had existed for more than one year and made the mandatory findings required by § 17a-112 (e). The trial court then concluded that it was in the best interest of the children to terminate the respondent’s parental rights.

“Our statutes define the termination of parental rights as the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and his parent .... It is a most serious and sensitive realm of judicial action. ... To justify the termination of parental rights in the absence of consent, one or more of the grounds set forth in General Statutes § [17a-112 (c) (3)] must be proven by clear and convincing evidence. . . .

“Section [17a-112 (c) (3)] carefully sets out . . . [the] situations that, in the judgment of the legislature, constitute countervailing interests sufficiently powerful to justify the termination of parental rights in the absence of consent. [The commissioner of the department of children and families], in petitioning to terminate those rights, must allege and prove [by clear and convincing evidence] one or more of the statutory grounds. In contrast to custody proceedings, in which the best interests of the child are always the paramount consideration and in fact usually dictate the outcome, in termination proceedings the statutory criteria must be met before termination can be accomplished and adoption proceedings begun. No all-encompassing best interests standard vitiates the requirement of compliance with the statutory criteria.” (Citations omitted; internal quotation marks omitted.) In re Michael M., 29 Conn. App. 112, 117-18, 614 A.2d 832 (1992).

I

Initially, the respondent mounts a two-pronged challenge to the trial court’s evidentiary ruling permitting the admission into evidence, over objection on hearsay and statutory grounds, of written social studies that had been prepared at prior stages of the commitment and termination proceedings. The petitioner claims that the evidence was properly admitted and that even if the admission was improper, the evidence was admitted through other sources and, thus, was not harmful. Without deciding whether the report or the statements contained within the report fit within any of the exceptions to the hearsay rule or case law; see, e.g., In re Tabitha P., 39 Conn. App. 353, 368, 664 A.2d 1168 (1995); we conclude that the admission of the report, even if improper, was harmless.

The respondent claims that the following findings by the trial court were based on its review of the inadmissible studies: (1) that the children’s brother, Franklin B., Jr., had a history of sexually inappropriate activity with other children, (2) that the other brother, Arthur, was placed out of the home as a result of aggressive behavior and (3) that the respondent herself came from tragic circumstances with a history of neglect and poor parenting.

All of this contested information was admitted, without objection, through a December 2, 1996 report submitted by David Mantell, a clinical psychologist, who testified at the hearing and was subject to cross-examination. Mantell’s report states that the respondent told Mantell that her son, Franklin, had to be removed from the home because of his inapproprite sexual behavior with other children. She stated that his teachers told her this. The respondent stated that her other son, Arthur, was placed out of the home for one and one-half years in 1989 when he was twelve and “giving the school a lot of trouble.” The respondent also told Mantell about the tragic circumstances that surrounded her biological family, and that her mother had abandoned her at a young age and that she had left school after the eighth grade. In addition, Mantell testified, without objection, that the various court-related documents revealed poor conditions in the home and poor parenting practices by the respondent.

Because the evidence contained in the challenged social studies was merely cumulative, the admission of those studies as full exhibits was harmless. “It is well recognized that any error in the admission of evidence does not require reversal of the resulting judgment if the improperly admitted evidence is merely cumulative of other validly admitted testimony. . . . Even if we were to presume that the [trial court improperly admitted the report] . . . the [respondent] would need to prove that that [report] more probably than not affected the result.” (Citation omitted; internal quotation marks omitted.) Fink v. Golenbock, 238 Conn. 183, 211, 680 A.2d 1243 (1996).

We conclude that because the social studies were merely cumulative of Mantell’s testimony and report, and because the respondent offered no proof that the result would have been different had the studies not been admitted, their admission, even if improper, was harmless.

II

The respondent next claims that the petitioner failed to provide clear and convincing evidence that the respondent had failed to achieve such a degree of personal rehabilitation as would encourage the belief that within a reasonable time she could assume a responsible position in the lives of the children, that the children were denied the care, guidance or control necessary for their physical, educational or emotional well-being, and that the petitioner was unsuccessful in making any meaningful attempt to adjust her circumstances to facilitate reunification. We are unpersuaded.

These claims necessarily involve a challenge to the trial court’s findings of facts and their application to its definition of the words of the statute. See In re Rayna M., 13 Conn. App. 23, 36, 534 A.2d 897 (1987). “We cannot retry the facts. In re Noel M., 23 Conn. App. 410, 418, 580 A.2d 996 (1990). On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported.” In re Michael M., supra, 29 Conn. App. 121.

The trial court’s conclusions were legally correct and were factually supported by the record. Anna and Philip recounted the inappropriate sexual behavior of both of their half-brothers, Franklin and Arthur. The trial court recognized that the respondent provided appropriate medical care for the children when they were in her care and that she received therapy. The trial court found, however, that the respondent had not benefited from the therapy and social services. The trial court credited the testimony of Mantell and found that the respondent had poor parenting skills, intellectual limitations and a personality disorder. As a result, the family’s situation was “marginal, at best, for the children without the sexual abuse concern.” (Emphasis added.) The trial court further agreed with Mantell that the case essentially revolved around the pivotal issue of the respondent’s failure to accept the sexual victimization of Anna and Philip. The trial court found that the respondent “still refuses to acknowledge this problem.” There was ample evidence in the record to support this conclusion. Essentially, the respondent does not claim that there is insufficient evidence in the record for the trial court’s findings, but rather that she would prefer that this court rely solely on certain specified portions of evidence and her interpretation thereof. This we will not do.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 17a-112 (c) provides in relevant part: “The Superior Court, upon hearing and notice . . . may grant a petition filed pursuant to this section if it finds by clear and convincing evidence ... (3) that over an extended period of time . . . (B) the parent of a child who has been found by the Superior Court to have been neglected or uncared for in a prior proceeding has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child; [or] (C) the child has been denied, by reason of an act or acts of parental commission or omission, the care, guidance or control necessary for his physical, educational, moral or emotional well-being. Nonaccidental or inadequately explained serious physical injury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights . . . .”

       See footnote 1.

       See footnote 1.

       General Statutes § 17a-112 (e) provides in relevant part: “Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding ... (6) the efforts the parent has made to acjjust his circumstances, conduct, or conditions to make it in the best interest of the child to return him to his home in the foreseeable future . . .

       A half-brother of Anna and Philip, Arthur, was committed to the custody of the petitioner for eighteen months, which was subsequently revoked in October, 1992.

       When the action was initiated, the studies indicated that all the children were full siblings. All children assumed that they had a common mother and father. During the termination proceedings, however, it was determined, by DNA testing, that Randy S., the nephew of the respondent husband, was the father of Anna B. and Philip B. The petitioner amended the petition to reflect Randy S. as the father. Randy S. consented to the termination of his parental rights in July, 1997.

       See footnote 1.

       See footnote 1.

       The trial court’s findings can be summarized as follows: (1) the petitioner offered parental, psychological and psychiatric services, visitation and foster care that were “adequate, available, accessible and relevant”; (2) the petitioner made reasonable efforts to reunite the family, and the respondent continues to fail to recognize “her need for therapy or acknowledge that sexually inappropriate conduct was occurring to her infant twins”; (3) the respondent did not fully comply with the expectations; (4) the children are bonded to their foster family, and no existing emotional bonds will be broken upon termination of the respondent’s rights; (5) the children were eight years old at the time of trial; (6) the respondent has been “unsuccessful in making any meaningful attempt to adjust her circumstances, conduct or condition to facilitate reunification”; and (7) “there [had] been nothing to prevent the parents from maintaining a meaningful relationship with the children except the mother’s volatile, aggressive and inappropriate behavior during visitation. There was no unreasonable conduct noted on the part of [the department of children and families]. The children’s reaction to the visitation robustly indicated that continued visitation was not appropriate. The mother has not seen her children in nearly two years. The children do not wish to see her.”

       The respondent argues that the applicable statute for termination of parental rights, General Statutes § 17a-112, does not mention social studies or their admission into evidence. She contends that because termination of parental rights is a statutory cause of action and not one founded in the common law, strict compliance with the statutory criteria is necessary before terminating parental rights. The respondent asserts that Practice Book § 33-5, formerly § 1043.1, allows the mandated social study to be made an exhibit for dispositional purposes, but there is no statutory language or rule of practice that permits these studies to be allowed as evidence for acljudieation purposes.

       See footnote 1.

       See footnote 1.

       See footnote 4.


author: DALY, J.

text:
    JOHN C. MANDANICI v. ZONING BOARD OF APPEALS OF THE CITY OF SHELTON
    (AC 17469)
    (AC 17475)
    Schaller, Hennessy and Daly, Js.
    Argued June 4
    officially released September 8, 1998

      Thomas J. Welch, with whom, on the brief, was John H. Welch, Jr., for the appellant (named defendant).

      Ian A. Cole, for the appellant (intervening defendant).

      Joseph R. Mirrione, for the appellee (plaintiff).
   Opinion

DALY, J.

The defendants appeal from the judgment of the trial court sustaining the plaintiffs appeal and reversing the decision of the defendant Shelton zoning board of appeals (board) that the plaintiff was not entitled to a variance because he did not suffer a hardship.

The defendants claim that the trial court improperly (1) ordered the board to grant a variance subject to conditions, when the plaintiff had purchased the property knowing gasoline stations were not a permitted use in that zone, (2) reversed the decision of the board by substituting its judgment for that of the board, (3) failed to give due consideration to conserving the public health, safety, convenience, welfare and property values required by General Statutes § 8-6 (a) (3), and (4) ordered the granting of a variance when the plaintiff failed to establish a hardship.

The factual background does not appear to be in dispute. The plaintiff purchased the premises at 895 Bridgeport Avenue in Shelton in 1988. That property is a three-quarter acre parcel. At the time of the purchase and at all relevant times thereafter, the premises was located in a zone in which gas stations were prohibited.

On May 29, 1992, the plaintiff applied for a variance from the use, lot size and frontage regulations to permit the construction of a gasoline station and convenience store. The board denied the application on June 6,1992. The plaintiff appealed and, on October 25, 1994, the trial court found that the denial was arbitrary and remanded the matter to the board to “determine if enough land [was] available for the change of zone.” The board appealed to this court, but certification was denied on January 18, 1995.

The board recommenced hearings on February 1, 1995, and continued the hearings several times at the plaintiffs request. The board considered the reports of the city engineer and fire marshal, which indicated that the lot could not support the type of development' sought due to insufficient width and frontage. On June 18, 1996, the board again denied the variance as being inconsistent with the comprehensive zoning plan.

On June 28, 1996, the plaintiff filed an appeal, and on September 9, 1996, 900 Shelton Plaza Associates intervened as a party defendant. On May 22, 1997, the trial court remanded the matter to the board and directed the board to “grant the plaintiffs application upon the plaintiffs meeting any reasonable conditions the board deems necessary to safeguard its concerns. If the plaintiff cannot meet the reasonable conditions of the board, then the board can deny his application.” This appeal followed the granting of certification on July 16, 1992.

The defendants’ first claim is that the trial court’s instructions to the board to grant a variance subject to conditions is not within the scope of the authority of the board or the trial court because the plaintiff purchased the property knowing that gasoline stations were not permitted in that zone. Section 8-6 (a) (3) provides that a variance may be granted “where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such bylaws, ordinances or regulations would result in exceptional difficulty or unusual hardship so that substantial justice will be done . . . .”

“For a variance to be granted under General Statutes § 8-6 (3), two conditions must be fulfilled: (1) the variance must be shown not to affect substantially the comprehensive zoning plan; and (2) adherence to the strict letter of the zoning ordinance must be shown to cause unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan. ” Kelly v. Zoning Board of Appeals, 21 Conn. App. 594, 597-98, 575 A.2d 249 (1990). “Proof of hardship is, therefore, a condition precedent to the granting of a variance, and such hardship must arise from the circumstances or conditions beyond the applicant’s control. Smith v. Zoning Board of Appeals, 174 Conn. 323, 327, 387 A.2d 542 (1978) . . . .” Eagan v. Zoning Board of Appeals, 20 Conn. App. 561, 563, 568 A.2d 811 (1990).

In Devaney v. Board of Zoning Appeals, 132 Conn. 537, 544, 45 A.2d 828 (1946), our Supreme Court stated that “[w]hen [the applicant] bought the property he voluntarily took a chance that he would be permitted to use it for a purpose expressly prohibited by ordinance. When the board of zoning appeals granted him that permission, it acted without authority and in clear abuse of the powers vested in it.” In Kulak v. Zoning Board of Appeals, 184 Conn. 479, 481, 440 A.2d 183 (1981), “the hardship found by the board had been voluntarily assumed by the applicant and could not constitute grounds for the grant of a variance.”

The plaintiff claims that the issue of hardship became res judicata when certification to appeal to this court was denied after the defendant board appealed the first remand. “We repeat what [our Supreme Court] said in State v. Chisholm, 155 Conn. 706, 707, 236 A.2d 465 [1967]: ‘[A] denial of certification does not necessarily indicate our approval either of the result reached by the Appellate Division or of the opinion rendered by it.’ ” State v. Doscher, 172 Conn. 592, 592, 376 A.2d 359 (1977); Pagano v. Board of Education, 4 Conn. App. 1, 5, 492 A.2d 197, cert. denied, 197 Conn. 809, 499 A.2d 60 (1985).

We conclude in this case that the trial court’s order to grant the variance was improper because the plaintiffs voluntary assumption of hardship could not constitute grounds for a variance. Given our resolution of this claim, we need not address the defendants’ remaining claims.

The judgment is reversed and the case is remanded with direction to render judgment denying the plaintiffs appeal.

In this opinion the other judges concurred.

       One appeal, AC 17469, is by the Shelton zoning board of appeals. The second appeal, AC 17475, is by the intervening defendant, 900 Shelton Plaza Associates, an adjoining property owner. Both appeals involve the same premises and issues.


author: FOTI, J. LAVERY, J.,

text:
    STATE OF CONNECTICUT v. DONALD COLE
    (AC 17617)
    Foti, Lavery and Daly, Js.

      Argued June 2
    officially released September 15, 1998

      Neal Cone, assistant public defender, for the appellant (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, were Maureen Keegan, acting state’s attorney, and John A. Connelly, former state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Donald Cole, appeals from the judgment of conviction, following a juiy trial, of one count of murder in violation of General Statutes § 53a-54a (a). Following his conviction, the trial court sentenced the defendant to a total effective term of sixty years imprisonment. On appeal, the defendant claims that the trial court violated his due process rights by failing to require the state to disprove his insanity defense beyond a reasonable doubt. The defendant also claims that the trial court improperly (1) refused to instruct the jury that the “wrongfulness” component of the insanity defense includes standards of societal morality, (2) instructed the jury as to the consequences for the defendant of an acquittal based on the insanity defense, (3) refused to instruct the jury on adverse inferences that could be drawn from the state’s failure to offer psychiatric evidence to rebut his insanity defense, and prohibited defense counsel from suggesting to the jurors that they should draw such inferences and (4) prohibited testimony from a defense expert of the consequences for the defendant of an acquittal based on the insanity defense. We disagree and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On December 9, 1993, at approximately 8 p.m., the defendant telephoned Susan Hellwinkle at her home in Woodbury. The defendant told Hellwinkle that he had shot his girlfriend twice and that she was dead. After hanging up with the defendant, Hellwinkle immediately telephoned the police to report the defendant’s statements. Shortly thereafter, state police from Troop L in Litchfield were dispatched to the defendant’s residence in Woodbury. Upon arriving at the defendant’s residence, the police took up positions surrounding the house. William Longo, a sergeant with the state police, telephoned the defendant from outside of the house and instructed the defendant to come out of the front door with his hands empty and in plain view. The defendant opened the front door and stepped onto the front porch. After the defendant stepped onto the front porch, Pete Warren, a lieutenant with the state police, gave the defendant further instructions as to how to surrender. The defendant followed Warren’s instructions and was handcuffed by Trooper David Bland.

After turning over the defendant to other troopers, Longo and Bland entered the house through the front door and proceeded to a master bedroom at the end of a hallway. Upon entering the bedroom, the police discovered the victim on the floor at the foot of the bed. The victim was fully clothed, lying on her back. The top half of the victim’s torso was wrapped in a blanket that was folded across her face. There were numerous tears in the upper part of the victim’s blouse and a wound to the victim’s face. The plastic casing from a discharged shotgun shell was entwined in the victim’s hair. There was a small amount of blood splattered on the wall across from the victim. There were also bloody drag marks from the wall to the foot of the bed. In one of the bedroom walls, behind an undamaged poster, were three bullet holes surrounded by splattered blood and hair. A discharged shotgun shell was found under bloodstained clothes in a laundry basket. Another discharged shotgun shell was found at the foot of the bed. There was a pool of blood on the bedroom floor beneath a red flannel shirt. A twelve-gauge shotgun was found in the closet of a second bedroom. Forensic testing revealed that the discharged shotgun shells found in the master bedroom had been ejected from this shotgun.

Ira Kanfer, a forensic pathologist with the state medical examiner’s office, conducted an autopsy of the victim. Kanfer’s examination revealed a gunshot wound to the victim’s chest with the bullet traveling upward and lodging in the victim’s brain. Kanfer’s examination also revealed a second gunshot wound to the victim’s neck with the bullet traveling downward and exiting through her back. Kanfer stated that the gunshot to the neck occurred first and that the second shot occurred while the victim was on the floor. Kanfer attributed the victim’s death to multiple gunshot wounds.

While the police were searching the defendant’s residence, the defendant was brought inside and calmly stated: “It was self-protection. She was yelling at me.” The defendant also stated that the victim had swung the shotgun at him and that he had to protect himself. In addition, the defendant stated: “I’m not going to let anyone come in and push me around. I have my gun.” Later, while the police were transporting the defendant to the state police barracks in Litchfield, he stated that the victim was fighting him like a man, had threatened to kick him in the groin and was going to get the shotgun and kill him. After arriving at the barracks, the defendant stated that the victim was going to kill him and was trying to take over his life. The defendant also stated that the victim had told him that he was unfit to raise his children and that he had been aggravated into killing her.

The defendant testified as follows. Approximately one month prior to the incident, the victim, who had been living with the defendant, moved out of the defendant’s home and was living in New Milford. On December 9, 1993, at approximately 4 p.m., the victim telephoned the defendant and asked if she could come over for dinner. The defendant agreed to have the victim over for dinner with him and his three children. The victim arrived after the defendant and his children had finished eating and ate alone in the kitchen while the defendant watched his children playing in the basement. After approximately fifteen minutes, the victim angrily called downstairs to the defendant: “Get your ass up here or I’m going to kill you.” The defendant went upstairs to the master bedroom and the victim asked him why she had to work for a living and pay her own rent. The defendant responded that it was not his responsibility to take care of her. The defendant told the victim that it was best for her to move out, that they were stuck in a rut and that she should go home. The victim became upset with the defendant and began slapping and kicking him. The defendant told her to stop and to get out of the house. The victim said that she knew the defendant had a loaded shotgun in the bedroom closet and that she was going to shoot him with it. The defendant removed the shotgun from the closet and told the victim that she was not going to get any guns and that she should get out of the house. The victim again slapped and kicked the defendant. The defendant backed up approximately five feet and pointed the shotgun at the victim. The defendant turned off the safety mechanism and fired two shots at the victim. The first shot was fired when the victim was standing and the second as the victim fell. The defendant stated that he did not intend to kill the victim and characterized his conduct as a subconscious reaction. Although the defendant acknowledged that the victim never touched the shotgun, he said that he was trying to protect himself because he was convinced that the victim would shoot him if she could get her hands on the gun. The defendant also said, however, that he had not shot the victim in self-defense and that he was incorrect in previously having thought that he had. In addition, the defendant stated that he did not know what made him shoot the victim.

I

The defendant first claims that the trial court violated his due process rights by failing to require the state to disprove his insanity defense beyond a reasonable doubt. We disagree.

The defendant concedes that this claim was not properly preserved at trial and seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). “In Golding, the court held: ‘[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.’ ” (Emphasis in original.) State v. Perry, 48 Conn. App. 193, 203 n.7, 709 A.2d 564, cert. denied, 244 Conn. 931, 711 A.2d 729 (1998). “The first two questions relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review.” (Internal quotation marks omitted.) State v. Manfredi, 17 Conn App. 602, 621, 555 A.2d 436 (1989), aff'd, 213 Conn. 500, 569 A.2d 506, cert. denied, 498 U.S. 818, 111 S. Ct. 62, 112 L. Ed. 2d 37 (1990). Because the defendant’s claim is of constitutional magnitude and the record adequate to review it, we will review the claim. It fails, however, under the third requirement of Golding.

The defendant argues that because his sanity is presumed, once he offered evidence in support of a defense of insanity, the state was required to disprove his defense beyond a reasonable doubt. Moreover, the defendant claims that the effect of an insanity defense is that the presumption of innocence, which is rooted in the due process principles of the federal and state constitutions, remains in effect after the state has satisfied its burden of proof as to the elements of murder, and requires the state to disprove the defendant’s insanity defense beyond a reasonable doubt.

The defendant’s claim is controlled by our Supreme Court’s decision in State v. Joyner, 225 Conn. 450, 625 A.2d 791 (1993). In Joyner, the defendant claimed that “in making mental disease an affirmative defense on which the defendant bears the burden of proof, [General Statutes] § 53a-13 (a), as amended in 1983, violates the due process clauses contained in article first, §§ 8 and 9 of the Connecticut constitution.” State v. Joyner, supra, 457. Although in Joyner the court did not consider the constitutionality of § 53a-13 (a) under the federal due process clause, it relied on two decisions of the United States Supreme Court for the proposition that a defendant’s sanity is not an element of the state’s case in a criminal prosecution and, therefore, the state need not bear the burden of proof on that issue. Id., 458, citing Patterson v. New York, 432 U.S. 197, 205-206, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977), and Leland v. Oregon, 343 U.S. 790, 797-99, 72 S. Ct. 1002, 96 L. Ed. 1302 (1952). In Joyner, the court stated that “[w]e agree with the state that sanity ... is an independent fact and not an element of any existing criminal offense. As to such an independent fact, as with regard to other affirmative defenses, the legislature has the constitutional authority to allocate the burden of proof to the defendant rather than to the state.” (Citations omitted.) State v. Joyner, supra, 464-65.

“We are, of course, bound by the decisional law of our Supreme Court. State v. Reis, 33 Conn. App. 521, 527, 636 A.2d 872, cert. denied, 229 Conn. 901, 640 A.2d 118 (1994).” State v. Tangari, 44 Conn. App. 187, 195 n.8, 688 A.2d 1335, cert. denied, 241 Conn. 901, 693 A.2d 304, cert. denied, 522 U.S. 867, 118 S. Ct 177, 139 L. Ed. 2d 118 (1997). Because our Supreme Court has determined that the legislature has the constitutional authority to allocate the burden of proof on sanity to the defendant rather than to the state, when sanity is not an element in the charge against the defendant, the defendant’s claim does not satisfy the third requirement of Golding.

II

The defendant next claims that the trial court improperly refused to instruct the jury that the “wrongfulness” component of the insanity defense includes standards of societal morality. We disagree.

The defendant filed a request to charge seeking an instruction that “[a defendant] is not criminally responsible for his offending act if, because of mental disease or defect, he believes that he is morally justified in his conduct—even though he may appreciate that his act is criminal. A defendant lacks substantial capacity to appreciate the wrongfulness of his conduct if he knows his act to be criminal but commits it because of a delusion that [he is acting in] self-defense and [is] therefore justified.” The trial court declined to give the instruction requested by the defendant and instead instructed the jury that “it shall be an affirmative defense that the defendant at the time he committed the proscribed act or acts lacked substantial capacity ... as a result of mental disease or defect either to appreciate the wrongfulness of his conduct or to control his conduct within the requirements of the law.” See General Statutes § 53a-13 (a).

The defendant relies on our Supreme Court’s decision in State v. Wilson, 242 Conn. 605, 700 A.2d 633 (1997), to support his claim that he was entitled to a jury instruction that defined the term “wrongfulness” in § 53a-13 (a) in accordance with standards of societal morality. In Wilson, our Supreme Court stated that “a defendant does not truly appreciate the wrongfulness of his conduct as stated in § 53a-13 (a) if a mental disease or defect causes him both to harbor a distorted perception of reality and to believe that, under the circumstances as he honestly perceives them, his actions do not offend societal morality, even though he may also be aware that society, on the basis of the criminal code, does not condone his actions.” (Emphasis in original; internal quotation marks omitted.) Id., 622. The court stated that a defendant is entitled to an instruction defining the term “wrongfulness” under the aforementioned standard only after he has adduced sufficient evidence to warrant such an instruction. Id., 625; see also State v. Person, 236 Conn. 342, 353, 673 A.2d 463 (1996) (defendant entitled to jury instruction on affirmative defense only if there is sufficient evidence for rational juror to find all elements of defense established by preponderance of evidence). Moreover, because an instructional omission with respect to an affirmative defense does not rise to the level of a constitutional violation, the defendant must prove that the omission constituted harmful error. State v. Wilson, supra, 631-32.

At trial, the following evidence was adduced regarding the defendant’s mental state at the time of the killing. Julia Ramos Grenier, a psychologist, testified that at the time of the killing, the defendant was suffering from a delusional disorder that prevented him from understanding that his behavior was not in keeping with what was expected by the law and by society. In addition, the defendant testified that he did not consider the consequences of his actions when he fired the gun and that he acted “subconsciously.” Moreover, the defendant testified that he had not acted in self-defense and that he was incorrect in having thought that he had and in making statements to that effect.

The following additional evidence was adduced regarding the defendant’s mental state. Shortly after the killing, the defendant telephoned Hellwinkle and told her that he did a very bad thing. The defendant testified that very soon after the killing, he realized that he had done something “wrong” and that he “was probably in for a lot of trouble.” The defendant also admitted that he had moved a poster to cover the bullet holes in the bedroom wall.

On the basis of that evidence, we conclude that the defendant failed to present sufficient evidence to warrant an instruction that distinguished between legal and societal standards of wrongfulness under § 53a-13 (a). Although the defendant presented evidence that he suffered from a mental disease that caused him to misper-ceive reality, the only evidence that directly linked the defendant’s mental disease with his ability to appreciate the wrongfulness of his actions at the time of the killing came from Grenier. Grenier testified that at the time of the killing, the defendant’s mental disease prevented him from understanding that his behavior was not in keeping with what was expected by the law and by society. The evidence presented by the defendant, therefore, supports the theory that at the time of the killing he was not aware of any standards of wrongfulness, either legal or societal, and that it was only after the killing that he realized that his actions were both illegal and immoral.

Because the defendant failed to present any evidence that at the time of the killing he was aware that his actions were illegal but believed that they did not offend societal morality, we conclude that the defendant was not entitled to a jury instruction that distinguished between legal and societal standards of wrongfulness under § 53a-13 (a).

Furthermore, the defendant has not satisfied his burden of persuasion that the trial court’s instructional omission constituted harmful error. See State v. Beltran, 246 Conn. 268, 275-76, 717 A.2d 168 (1998) (defendant must persuade this court that it is more probable than not that trial court’s instructional omission affected result of trial); State v. Wilson, supra, 242 Conn. 631-32 (same); see also State v. Esposito, 235 Conn. 802, 825, 670 A.2d 301 (1996). Unlike in Wilson, where the evidence established that the defendant was aware that his actions were criminal but believed that he was compelled by a “higher moral duty” to kill the victim; State v. Wilson, supra, 626; here, the defendant did not present any evidence that at the time of the killing he appreciated the illegality or criminality of his actions. The success of the defendant’s affirmative defense, therefore, did not hinge on whether the jury found that at the time of the killing he was aware that his actions offended societal morality. Compare id., 632 (failure to define “wrongfulness” in terms of morality harmful error where defendant’s appreciation of criminal law not at issue).

Because the defendant did not present evidence that at the time of the killing he understood the illegality of his actions, the success of his affirmative defense did not hinge on his appreciation of the morality of his actions. We conclude, therefore, that the trial court’s instructional omission did not constitute harmful error.

Ill

The defendant next claims that the trial court improperly instructed the jury as to the consequences for the defendant of an acquittal based on the insanity defense. We disagree.

General Statutes § 54-89a provides in relevant part: “If the court instructs the jury on a defense of mental disease or defect ... it shall . . . inform the jury of the consequences for the defendant if he is found not guilty by reason of mental disease or defect and of the confinement and release provisions of sections 17a-580 to 17a-602, inclusive, applicable to a person found not guilty by reason of mental disease or defect.” The defendant argues that the trial court’s instructions failed to refer specifically to the confinement and conditional release provisions of General Statutes § 17a-593 (c) and (g), and General Statutes § 17a-594 (a). The defendant argues that the trial court’s omission permitted the jury to convict him on the basis of an erroneous belief that he would be released from confinement prematurely if the jury returned a verdict of not guilty by reason of mental disease or defect.

Our Supreme Court has stated that “[a]t common law, the matter of punishment was not an issue for the jury but for the court, and therefore not an appropriate subject for the jury’s consideration or for the court’s instruction to the jury. State v. Holmquist, [173 Conn. 140, 376 A.2d 1111, cert. denied, 434 U.S. 906, 98 S. Ct. 306, 54 L. Ed. 2d 193 (1977)]. Section 54-89a, enacted in derogation of this common law principle, is to be construed narrowly in order to leave undisturbed those aspects of the common law not directly affected by the statute. State v. Kish, 186 Conn. 757, [764], 443 A.2d 1274 (1982). Section 54-89a requires only that the court inform the jury of the consequences that may follow a verdict rendered after a successful insanity defense. It does not nullify the general rule that a jury base [its] verdict solely on the evidence before it. A narrow construction of § 54-89a comports with this general rule by ensuring that the jury possesses information that enables it to reach a determination based on the evidence, yet remains unaffected by sympathy, fear or other inappropriate and irrelevant concerns.” State v. Wood, 208 Conn. 125, 144, 545 A.2d 1026, cert. denied, 488 U.S. 895, 109 S. Ct. 235, 102 L. Ed. 2d 225 (1988).

In Wood, the court agreed that the trial court was “ ‘directed by the legislature to make it clear to the jury that such a verdict [of guilty but not criminally responsible] means neither freedom nor punishment. It means the accused will be confined in a hospital for the mentally ill, until the superintendent of such hospital certifies and the Court is satisfied that such person has recovered his sanity and will not in the reasonable future be dangerous to himself or others.’ ” Id., 142 n.13. The court noted that the effect of the instruction is “to promote verdicts grounded on the evidence, rather than on the fear of an uninformed jury that a dangerous, disturbed person might be set free upon the rendering of a verdict of guilty but not criminally responsible. ” Id.

After instructing the jury on the affirmative defense of mental disease or defect, the trial court instructed the jury of the consequences for the defendant if he is found not guilty pursuant to the affirmative defense. The trial court instructed the jury that the defendant would be temporarily confined to a state hospital for an examination to determine his mental condition. After receiving a report from the superintendent of the hospital, the court would conduct a hearing to determine the mental condition of the defendant, with the primary concern being the protection of society. The court would then make a determination as to whether the defendant should be confined, conditionally released or discharged. If the court were to order that the defendant be confined, he would then be committed to the psychiatric security review board for confinement in a state mental institution. The trial court also instructed the jury that it would set a maximum period of confinement. In addition, the trial court twice instructed the jury that it would discharge the defendant only “if the evidence indicates that the defendant is not a threat to himself or others and the protection of society would not be adversely affected by his release . . . .” Finally, the trial court instructed the jury that, during the course of any commitment, the court would maintain supervision of the defendant and would hold him “until such point as he is no longer a danger to himself or others

Although the trial court’s instructions did not refer specifically to the provisions of § 17a-593 (c) and (g), and § 17a-594 (a), we conclude that the court’s omission did not mislead the jury to believe that the defendant would be released from confinement prematurely if it returned a verdict of not guilty by reason of mental disease or defect. Rather, the effect of the court’s instructions was to inform the jury of the consequences of a successful insanity defense and to allay the jurors’ fears that the defendant could be released while he is a danger to society. We conclude, therefore, that the trial court’s instructions satisfied the requirements of § 54-89a and properly informed the jury of the consequences of a verdict of not guilty by reason of mental disease or defect.

IV

The defendant next claims that the trial court improperly refused to instruct the jury on adverse inferences that could be drawn from the state’s failure to offer psychiatric evidence to rebut his insanity defense and prohibited defense counsel from suggesting to the jurors that they should draw such inferences. Specifically, the defendant argues that the prosecutor’s decision not to have the defendant examined by its own psychiatrist “ought to permit defense counsel to suggest that the state did not . . . have the defendant submit to an examination by a psychiatrist retained by it because the state was afraid of what that examination would [reveal]. ... It should also permit a charge encompassing that possibility or probability.” We disagree.

The defendant filed a request to charge seeking the following instruction. “The prosecutor may request the Court to order the defendant to submit to a psychiatric examination by a psychiatrist designated for this purpose by the prosecuting authority. No psychiatrist was called by the prosecuting authority as a witness in this case. You may draw such inferences as you find reasonable from these facts or you may choose to draw no inferences at all.” In support of this instruction, the defendant relied on, inter alia, Practice Book § 760, now § 40-19, and Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960). The trial court refused to give the requested instruction, stating, “I am not going to charge in the specific language indicated here .... I don’t see this as a Secondino situation at all.” The trial court, however, did permit defense counsel to argue to the jury that the only expert testimony offered on the issue of the defendant’s mental condition came from the defense.

“The failure to produce a witness for trial who is available and whom a party would naturally be expected to call warrants an adverse inference instruction against the party who would be expected to call that witness. . . . An inquiry into the appropriateness of a Secondino instruction is, accordingly, two-pronged: whether the witness is available and whether, under the facts of this case, the witness is one whom the state would naturally be expected to produce. . . . State v. Wood, [supra, 208 Conn. 140]. 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. Sec-ondino v. New Haven Gas Co., supra, 147 Conn. 675.” (Internal quotation marks omitted.) State v. Oliver, 48 Conn. App. 41, 45, 708 A.2d 594, cert. denied, 244 Conn. 930, 711 A.2d 729 (1998).

“Appellate courts will not disturb a trial court’s Sec-ondino ruling absent a clear abuse of the trial court’s discretion. See State v. Grant, 221 Conn. 93, 106, 602 A.2d 581 (1992). In reviewing claims that the trial court abused its discretion, great weight is attached to the trial court’s decision and every reasonable presumption is given in favor of its correctness. State v. Beckenbach, 198 Conn. 43, 47, 501 A.2d 752 (1985).” State v. Barnes, 47 Conn. App. 590, 594, 706 A.2d 1000 (1998).

In denying the defendant’s requested instruction, the trial court stated that “in my estimation, or based on my review, [this] is not a Secondino situation since, number one, the defendant has not pointed to any individual who is available to the state and, under the circumstances here, bears some relation to either the parties or the issues where he would naturally be called to respond to the testimony that has been given.”

The trial court correctly determined that the defendant was not entitled to a Secondino instruction because he failed to identify a witness who was available to the state to offer expert testimony regarding his insanity defense. See Shelnitz v. Greenberg, 200 Conn. 58, 74-75, 509 A.2d 1023 (1986) (before negative inference can be drawn from party’s failure to produce witness, it must be shown that party was able to procure witness’ physical presence in court). Moreover, our Supreme Court has consistently stated that the state is not required to produce expert testimony to sustain a conviction where the defense of insanity has been raised. See State v. DeJesus, 236 Conn. 189, 201, 672 A.2d 488 (1996) (fact that defendant’s expert witnesses supported claim of insanity while state called no expert witnesses, but relied on cross-examination of defendant’s experts, does not require determination that trier of fact reasonably could not have concluded that defendant failed to prove insanity); see also State v. Patterson, 229 Conn. 328, 340, 641 A.2d 123 (1994); State v. Medina, 228 Conn. 281, 310, 636 A.2d 351 (1994); State v. Perez, 182 Conn. 603, 608-10, 438 A.2d 1149 (1981); State v. Davis, 158 Conn. 341, 354-56, 260 A.2d 587 (1969), vacated and remanded on other grounds, 408 U.S. 935, 92 S. Ct. 2856, 33 L. Ed. 2d 750 (1972). Because it is well settled that the state is not required to produce expert testimony to sustain a conviction where the defendant has offered expert testimony in support of a defense of insanity, it follows that expert witnesses are not witnesses that the state would naturally be expected to produce. See Secondino v. New Haven Gas Co., supra, 147 Conn. 675.

Upon our review of the entire record, we cannot conclude that the trial court abused its discretion in refusing to instruct the jury on adverse inferences that could be drawn from the state’s failure to offer psychiatric evidence to rebut the defendant’s insanity defense and in prohibiting defense counsel from suggesting to the jurors that they should draw such inferences.

V

The defendant finally claims that the trial court improperly prohibited testimony from a defense expert of the consequences for the defendant of an acquittal based on the insanity defense. We disagree.

At trial, the defendant sought to offer expert testimony from Grenier of the consequences for the defendant if he were found not guilty by reason of mental disease or defect. The defendant also sought to offer Grenier’s testimony regarding the operation of the psychiatric security review board, of which she is a member. The trial court refused to allow this testimony.

“Our standard of review regarding challenges to a trial court’s evidentiary rulings is that these rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. ... In reviewing claims that the trial court abused its discretion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only if it could not reasonably conclude as it did. . . . Annecharico v. Patterson, 44 Conn. App. 271, 275, 688 A.2d 1341 (1997).” (Internal quotation marks omitted.) Eisenbach v. Downey, 45 Conn. App. 165, 179, 694 A.2d 1376, cert. denied, 241 Conn. 926, 696 A.2d 1264 (1997).

The defendant argues that because Grenier was not allowed to testify about either the consequences for the defendant of a verdict of not guilty by reason of mental disease or defect or about the operation of the psychiatric security review board, the jury’s verdict may have been affected by fear that the defendant, if he were found not guilty by reason of mental disease or defect, could be released while he is still a danger to society. In part III of this opinion, we stated that § 54-89a, which requires the trial court to inform the jury of the consequences for the defendant of a finding of guilty but not criminally responsible, was enacted in derogation of the common-law principle that “the matter of punishment [is] not an issue for the jury but for the court, and therefore not an appropriate subject for the jury’s consideration . . . .” State v. Wood, supra, 208 Conn. 144. We also stated that our Supreme Court has construed § 54-89a narrowly to comport with the general rule that a jury base its verdict solely on the evidence before it, rather than on “sympathy, fear or other inappropriate and irrelevant concerns.” Id. Because § 54-89a creates a narrow exception to the general rule that a jury base its verdict solely on the evidence before it, the trial court did not abuse its discretion in prohibiting testimony from Grenier about the consequences for the defendant of an acquittal based on the insanity defense. Furthermore, in part III of this opinion we determined that the trial court’s instructions satisfied the requirements of § 54-89a and properly informed the jury of the consequences for the defendant of a verdict of not guilty by reason of mental disease or defect. We conclude, therefore, that the exclusion of Grenier’s testimony did not result in substantial prejudice or injustice to the defendant.

The judgment is affirmed.

In this opinion DALY, J., concurred.

LAVERY, J.,

dissenting. I agree with parts I, III, IV and V of the majority opinion, but I respectfully dissent from part II of the majority opinion, which affirms the trial court’s decision not to instruct the jury that the wrongfulness component of the insanity defense includes standards of societal morality.1 believe sufficient evidence was produced warranting the giving of the instruction.

“ ‘If there is sufficient evidence of a legal defense, the defendant is entitled, as a matter of law, to a requested jury charge on that defense.’ State v. Person, 236 Conn. 342, 352, 673 A.2d 463 (1996). Because legal insanity is an affirmative defense for which the defendant bears the burden of proof, a defendant is entitled to receive a jury instruction on legal insanity only if he has adduced sufficient evidence from which a reasonable trier of fact could find that the defense has been established by a preponderance of the evidence. State v. Joyner, 225 Conn. 450, 471, 625 A.2d 791 (1993); see also State v. Person, supra, 353 (applying standard to affirmative defense of extreme emotional disturbance).” State v. Wilson, 242 Conn. 605, 625, 700 A.2d 633 (1997).

At trial, the defense called two expert witnesses to testify regarding their examinations of the defendant and the conclusions drawn therefrom. Walter Borden, a psychiatrist, testified that he interviewed the defendant on three separate occasions, conducted a psychological evaluation and interviewed the defendant’s parents. Borden testified that the defendant suffered from chronic paranoid schizophrenia characterized by delusions and hallucinations. According to Borden, the defendant suffered from persecutory delusions in that he believed that one or more people were at times trying to harm or kill him, somatic delusions in that he believed that he was suffering from carbon monoxide poisoning and Lyme disease, and misidentification delusion in that he believed that the victim was the double of Susan Rice, the victim. Borden explained that the defendant heard voices belonging to his coworkers and to a group that he called Semper Fi that threatened him and said he had to die. The defendant believed that there was a conspiracy to kill him.

Borden also explained that the defendant believed that there were at least two Susan Rices, a good one and a bad one. In response to the defendant’s question as to whether Borden had an opinion as to the possible effect of the defendant’s mental illness on his understanding of the events of December 9, 1993, Borden stated: “Well, I think they affected them profoundly in the sense that he believed he was—Susan Rice was going to harm, kill him. He heard it. He believes he heard it. He believes he heard her telling him that that’s what she was going to do. And he believed that she was going to do that. Now, in my opinion that’s what he believes. My opinion, he was delusional and hallucinating that he believed she was going to. He believed that before, too, at times. So he heard her. That doesn’t mean she said that. That’s what he believed, that he heard her threaten him and that he believed she was going to do it and that was his understanding of what was going on. So, I think his understanding was very strongly colored, influenced, based on his paranoia, his paranoid delusions and hallucinations.” Finally, in response to a question concerning his opinion as to how the mental illness affected the defendant’s behavior during the events of December 9, 1993, Borden stated that the defendant’s “mental state, paranoia resulted in extreme fear, fear for his life and fear directly influenced his behavior.”

Julia Ramos Grenier, a psychologist, testified that she interviewed the defendant on three separate occasions and evaluated his psychological functioning. Grenier testified that the defendant believed that the victim was a double and not the same person that he had been having a relationship with and that the real Rice is alive and out there somewhere. Further, Grenier testified that the defendant attempts to present himself “as being fairly well put together” and to minimize any problems he really has, but that when he was pressured she was able to determine that he did indeed have some difficulties. She testified that the defendant was “faking good,” which means that “he was trying to make believe or convince me that there is nothing wrong with him psychologically.”

When asked for her opinion on the defendant’s mental status on the night of December 9,1993, Grenier stated: “I believe that at that time when this occurred, this incident occurred, that [the defendant] was really suffering from a delusional disorder that prevented him from understanding that his thinking was not normal in the sense we would expect it to be, that he was not rationally looking at the situation and that he was not weighing the factors in a rational way and that, therefore, he didn’t know that his behavior was not in keeping with what was expected by the law and society. And also, that because of the fact that he felt himself in some way, because of his delusions, to be in danger of some type, in that this person was not the person he thought her to be, that he felt himself to be in danger as well. And I think that the degree of anxiety that very likely caused led him to not be able to control his behavior and say I need to stop and think this through, I can’t do this, for example. That he was just not able to do that, to stop and think and control his behavior.”

The defendant testified that “[a]t the moment before I fired the gun, I believed, fairly convinced she was going to shoot me with the gun if she could. And I really believed through the relationship for the past four or five months she was just trying to aggravate me on purpose, trying to cause a problem like this.”

Two state troopers testified for the state. Trooper David Bland testified that while he was guarding the defendant at the crime scene, the defendant stated that he shot the victim in self-defense. Specifically, Bland testified that the defendant made the following statements: “What would you do if someone came on you? What, if he threatened you and you came to him? It would be self-defense. . . . She swung the shotgun at me, self-protection. She swung it. . . . In my house I had to protect myself. It was me or her. So I got the gun.” Trooper John Covello testified that while transporting the defendant to the police barracks, the defendant stated that the victim had threatened to harm him and to get the shotgun and kill him and, at the police barracks, the defendant stated that the victim was not the woman he was going to marry and that she was going to kill him and was trying to take control of his life.

On the basis of this testimony, I conclude that the defendant presented sufficient evidence “from which a jury reasonably could have found, by a preponderance of the evidence, that, due to a mental disease or defect, the defendant misperceived reality and, in acting on the basis of that misperception, did not substantially appreciate that his actions were contrary to societal morality.” Id., 627. As our Supreme Court stated in Wilson, the test that is adopted “requires a fact finder to look beyond the defendant’s appreciation of society’s objective disapproval of his actions and to inquire whether the defendant, as a result of mental disease or defect, truly believed that society, if it were aware of the circumstances as he honestly perceived them, would have condoned his actions.” Id., 627-28.

In a footnote, the Wilson court enunciated what a defendant must establish to prevail. “[T]he defendant, under the definition of ‘wrongfulness’ that the jury will receive on retrial, may prevail if he can establish that, due to his mental disease or defect, he substantially misperceived reality and harbored a delusional belief that society, under the circumstances as he honestly but mistakenly understood them, would not morally have condemned his actions. Consequently, it will be for the jury to determine whether the defendant, as a result of his mental illness, believed that society would not have morally condemned his conduct in light of the facts as he perceived them.” (Emphasis in original.) Id., 627 n.24.

It was the defendant’s theory that at the time of the shooting he was suffering from a mental illness, the effect of which was the defendant’s belief that the victim, the evil double, was going to kill him, which resulted in the defendant’s defending himself and shooting the victim in self-defense. Although other evidence existed that tended to show that the defendant might not have acted in self-defense under the influence of a mental illness, that goes to the weight of the defendant’s proof, and not to whether the defendant was entitled to a jury instruction correctly defining the term “wrongfulness.” Id., 628; see State v. Person, supra, 236 Conn. 353; see also State v. DeJesus, 236 Conn. 189, 201, 672 A.2d 488 (1996); State v. Sivri, 231 Conn. 115, 132-33, 646 A.2d 169 (1994).

I also believe that the defendant has satisfied his burden of persuasion that the trial court’s failure to deliver the requested charge constituted harmful error. As our Supreme Court held in Wilson: “Because the meaning of wrongfulness under [General Statutes] § 53a-13 (a) was left unclear and because that lack of clarity affected a central element of the defendant’s claim of insanity, we conclude that the trial court’s failure to define ‘wrongfulness’ in terms of the defendant’s appreciation of societal morality constituted harmful error.” State v. Wilson, supra, 242 Conn. 633.

I conclude that the defendant produced sufficient evidence from which a jury reasonably could have concluded that due to his mental illness, he misperceived reality in that he believed the victim was about to kill him and, on the basis of this misperception, he did not substantially appreciate that his action in self-defense was contrary to social morality. Thus, it would have been proper to instruct the jury on the requested charge. Again, it is ultimately the responsibility of the trier of fact to determine “whether the defendant, as a result of his mental illness, believed that society would not have morally condemned his conduct in light of the facts as he perceived them”; id., 627 n.24; and, in this case, there was sufficient evidence to allow the juiy to make that determination.

I would reverse the judgment of the trial court and remand this case for a new trial.

       General Statutes § 53a-54a (a) provides: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

       The first issue is stated by the defendant in his brief as follows. “When deciding whether to acquit the defendant because of insanity, the jury has yet to decide to hold him criminally responsible, and so the presumption of innocence has not yet been rebutted, meaning the reasonable doubt standard still applies; also, because the state presumes sanity, once [the defendant] has offered evidence in rebuttal, shifting the burden of persuasion to him violates due process and Conn. Const., article first, § 9.”

       General Statutes § 53a-13 (a)provides: “In any prosecution for an offense, it shall be an affirmative defense that the defendant, at the time he committed the proscribed act or acts, lacked substantial capacity, as a result of mental disease or defect, either to appreciate the wrongfulness of his conduct or to control his conduct within the requirements of the law.”

       Among the evidence presented by the defendant was the testimony of Walter Borden, a psychiatrist, that the defendant suffered from chronic paranoid schizophrenia. Borden testified that the defendant’s schizophrenia resulted in paranoid delusions, one of which was the belief that the victim was trying to kill him.

       General Statutes § 17a-593 (c) provides: “If reasonable cause exists to believe that the acquittee remains a person with psychiatric disabilities or mentally retarded to the extent that his discharge at the expiration of his maximum term of commitment would constitute a danger to himself or others, the state’s attorney, at least one hundred thirty-five days prior to such expiration, may petition the court for an order of continued commitment of the acquittee.”

       General Statutes § 17a-593 (g) provides: “The court shall make a finding as to the mental condition of the acquittee and, considering that its primary concern is the protection of society, make one of the following orders: (1) If the court finds that the acquittee is not a person who should be discharged, the court shall order the recommendation or application for discharge be dismissed; or (2) if the court finds that the acquittee is a person who should be discharged, the court shall order the acquittee discharged from custody. The court shall send a copy of such finding and order to the [psychiatric security review] board.”

       General Statutes § 17a-594 (a) provides in relevant part: “If at any time while an acquittee is under the jurisdiction of the [psychiatric security review] board, it appears to the board or its chairman that a conditionally released acquittee has violated the terms of a conditional release or that the mental health of the acquittee has changed, the board or its chairman may order the modification of the conditional release of the acquittee or may order the termination of the conditional release of the acquittee and his return to a hospital for psychiatric disabilities or to the Commissioner of Mental Retardation for examination or treatment. The state’s attorney may, at any time, notify the board or its chairman of facts that the state’s attorney believes indicate that the conditionally released acquittee has violated the terms of a conditional release, that the mental health of the acquittee has changed or that the conditions of release should be modified. ...”

       On the basis of the defendant’s request to charge, this claim is reviewable for the same reasons set forth in State v. Wilson, 242 Conn. 605, 632-33, 700 A.2d 633 (1997).