text:
    State of Connecticut v. Timothy B. Blue
    (3485)
    Hull, Spallone and Bieluch, Js.
    Argued February 11
    decision released April 8, 1986

      David F. Egan, public defender, for the appellant (defendant).

      Julia DiCocco Dewey, assistant state’s attorney, with whom, on the brief, were Arnold Markle, state’s attorney, Thomas V. O’Keefe, Jr., deputy assistant state’s attorney, and Howard K. Coates, Jr., legal intern, for the appellee (state).
   Spallone, J.

The defendant is appealing from his judgment of conviction, after a jury trial, of the crimes of burglary in the second degree in violation of General Statutes § 53a-102 (a), burglary in the first degree in violation of General Statutes § 53a-101 (a) (1), robbery in the first degree in violation of General Statutes § 53a-134 (a) (3), unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a), and larceny in the third degree in violation of General Statutes § 53a-124 (a) (1).

The jury could reasonably have found the following facts. On December 6,1983, at approximately 6:20 p.m., John Morytko was in his home when he heard the front door being opened. A black male entered the premises and approached Morytko who thereupon took the intruder by the arm and escorted him outside. Morytko then called the police. At approximately 11:30 p.m. that same evening, Morytko identified the defendant as the person who had entered his home.

Also on December 6,1983, at about 6:30 p.m., Evelyn Massimin was in her home wrapping Christmas presents. She had occcasion to enter a closet and, upon emerging therefrom, she encountered a black male who, while holding scissors in his hand, threatened to kill her. The intruder forced Massimin to accompany him to an upstairs bedroom where he removed a necklace from her neck and took additional assorted jewelry and other valuables later determined to be valued in excess of $10,000. The intruder then bound Massimin with a telephone cord. On December 8,1983, Massimin, through a photo array, identified the defendant as the intruder who entered her home, bound and robbed her. The Morytko residence and Massimin’s home are located approximately 250 yards from each other in Meriden.

During the course of the trial, a leatherlike jacket belonging to the defendant was introduced into evidence by the state. The jury returned its guilty verdict later that afternoon. Following the return of the verdicts, it came to the attention of the court that unknowingly a letter was left in a pocket of the jacket marked in evidence. The letter was seen by at least one juror, who notified the court of its existence. The trial was commenced on June 5,1984, and ended with the jury’s verdicts on June 11,1984. The court learned of the letter on June 12, 1984.

On July 20,1984, the defendant moved for a new trial on the basis of the fact that at least one juror had seen a document that was not in evidence. In the alternative, the defendant requested an evidentiary hearing which would afford him an opportunity to produce evidence to establish his claim for a new trial. The court denied both requests and proceeded to sentence the defendant.

The defendant has raised only one issue in his amended statement of issues, the claim that the trial court committed reversible error in denying his motion for an evidentiary hearing to determine the prejudicial effect of extrinsic evidence on the jury.

The essence of the defendant’s claim is that, although the content of the letter was innocuous, the return address on the blank envelope in which it was enclosed was the street address of the correctional center where he had been incarcerated, i.e., “245 Whalley Avenue, New Haven, CT 06511,” with no further identification of the premises.

At the hearing on the motion for a new trial or for an evidentiary hearing, the trial court, in denying the motion, concluded that the appearance of the letter in the jury room was an inadvertence and was not caused by any improper conduct of the state or jury, and that the content of the letter and the street address on the envelope could not have caused an improper influence on the jury. The court noted that there was other evidence before the jury indicating that the defendant had previously been arrested and incarcerated. Even in the unlikely event that the juror who saw the letter or other jurors who might have seen it knew that “245 Whalley Avenue” was the address of the local correctional facility, it could not be prejudicial to the defendant because the fact of his incarceration was already in evidence as indicated by the comments of the trial judge.

Our Supreme Court has ruled that a formal evidentiary hearing is not required before a court may rule on the prejudicial effect of an evidentiary error. In State v. Asherman, 193 Conn. 695, 738-41, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985), the court affirmed the trial court’s ruling on a motion for a new trial that an experiment conducted by the jurors with items brought by them into the deliberation room improperly was not found to be prejudicial. See also State v. McCall, 187 Conn. 73, 81, 444 A.2d 896 (1982).

The trial court clearly applied the standard enunciated in State v. Asherman, supra, 739-40, citing State v. Graham, 422 So. 2d 123, 132 (La. 1982), which is that “when a juror passes beyond the record evidence in reaching a decision, whether a new trial will be granted depends upon the magnitude of the juror’s deviation from his proper role, the degree to which the accused was deprived of the benefits of the constitutional and statutory safeguards, and the likelihood that the impropriety influenced the jury’s verdict. All of these elements must be weighed in determining whether there is a reasonable possibility that the defendant’s right to a fair trial has been prejudiced.”

We cannot say that the court’s ruling was clearly erroneous. Under the circumstances in this case, there exists a reasonable basis for the trial court’s ruling and we conclude that the trial court’s denial of the defendant’s motion for a new trial on the ground stated cannot be disturbed.

There is no error.

In this opinion the other judges concurred.


source: Caselaw Access Project

author: Hull, J.

license: Public Domain

text:
    State of Connecticut v. Timothy E. Brelsford
    (3220)
    Hull, Borden and Spallone, Js.
    Argued February 13
    decision released April 8, 1986

      William Holden, assistant public defender, with whom, on the brief, was Herbert J. Bundock, public defender, for the appellant (defendant).

      Robert A. Lacobelle, assistant state’s attorney, with whom, on the brief, was Donald A. Browne, state’s attorney, for the appellee (state).
   Hull, J.

The defendant was originally charged with committing the crime of assault in the first degree. He appeals from his judgment of conviction, after a jury trial, of the lesser included offense of assault in the second degree, a violation of General Statutes § 53a-60 (a) (l). He claims as his sole issue on appeal that the court erred in failing to give the jury his requested instruction on the “defense” of intoxication. We agree with the defendant that the court erred in failing to charge on intoxication as relevant to negate the specific intent element of the crime of assault in the second degree. We, therefore, find error.

Before addressing the substance of the defendant’s claims, it is first necessary to clear away a misconception which beclouds this simple issue. The defendant, in his brief and in his argument before this court, labeled intoxication as a defense. He made a similar error by phrasing his request to charge in almost exactly the same language our Supreme Court discountenanced in State v. Carter, 189 Conn. 611, 625 n.9, 458 A.2d 369 (1984). In spite of this mislabeling, we will review the defendant’s claim of error. While the defendant’s request to charge was not as precise as it properly should have been, it was sufficient to alert the court to the need for such a charge, provided that there was sufficient evidence that the defendant was intoxicated when the crime occurred. Additionally, although the defendant made a similar mislabeling in his brief and argument before this court, it is clear that the essence of his argument on appeal is that there was sufficient evidence of intoxication to require the court to charge the jury that intoxication could negate a criminal intent. Our decision agrees with that of our Supreme Court in State v. Carter, supra. Faced with a similar issue, the Carter court stated that “[although the defendant’s request was deficient in failing to confine the defense of intoxication to its bearing upon the mental element necessary for burglary in the first degree, it was sufficient to alert the court to the need for such a charge, provided that there was sufficient evidence that the defendant was intoxicated when the crime occurred.” Id., 625-26. Accordingly, we now turn to the merits of the defendant’s claim.

The defendant requested, and the court refused to give, a charge on intoxication. The trial court indicated that it was denying the request because it read the case of State v. Rosado, 178 Conn. 704, 707-708, 425 A.2d 108 (1979), as requiring that the defendant admit the crime charged before he is entitled to an instruction on the “defense” of intoxication. The trial court was undoubtedly misled by the inaccurate dictum in State v. Rosado, supra, 708, that intoxication is an affirmative defense. It is neither a defense nor an affirmative defense. General Statutes § 53a-7.

Under earlier case law, intoxication was labeled a defense. Voluntary intoxication was a defense in a criminal action only where proof of specific intent was required as an element of the crime charged. State v. Dennis, 150 Conn. 245, 250, 188 A.2d 65 (1963). This rule was altered by the adoption of General Statutes § 53a-7 of the Penal Code, effective October 1, 1971. That section provides: “Intoxication shall not be a defense to a criminal charge, but ip any prosecution for an offense evidence of intoxication of the defendant may be offered by the defendant whenever it is relevant to negate an element of the crime charged . . . .” General Statutes § 53a-7 defines intoxication as a “substantial disturbance of mental or physical capacities resulting from the introduction of substances into the body.” Accordingly, if there was sufficient evidence that the defendant was intoxicated when the crime was committed, the trial court should have charged the jury that it could consider the defendant's intoxication when determining whether he had the requisite specific intent.

A brief summary of pertinent testimony is necessary to determine whether the evidence was sufficient to warrant the requested charge. The defendant was accused of cutting Stephen Moss in the face with a razor during a fight in Stratford on April 9,1983. The fight occurred between 3 and 3:30 a.m., in a fairly large van containing seven persons, including the defendant and the victim. The occupants of the van were engaging in what can only be called, on the basis of overwhelming evidence, a drinking bout. The party went on for several hours between 1:30 and 3:30 a.m., and was some party indeed. The occupants testified to seeing all the others drink alcohol for several hours, or longer. Everybody was drinking beer and tequila and everybody was high or feeling good.

The defendant himself testified that he had drunk beer at a keg party in Milford and that he thereafter had four beers at Lavery’s Bar. He confirmed the testimony of others that he was drinking beer and tequila in the van in the early hours of April 9,1983. He stated unequivocally on both direct and cross-examination that he was drunk. Further, an emergency medical technician who examined the defendant around 4 a.m. smelled alcohol on his breath, and said that the defendant was unable to maintain his balance without assistance.

The state argues that there was not sufficient evidence to justify the requested charge. The state emphasizes aspects of the evidence which would tend to show that the defendant, on some occasions, appeared to some of the witnesses to act normally, that some of the witnesses understood him, that he indicated that he understood his Miranda rights; Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); when they were read to him by the arresting officers, and that his recollection of certain events was good. On the basis of this evidence, the state contends that the defendant failed to demonstrate that at the time of the commission of the crime, he showed a substantial disturbance of mental and physical capabilities resulting from intoxication.

Such a claim unrealistically assesses the testimony in this case. There was more than sufficient evidence, both direct and inferential, from which the jury could have found that the defendant was intoxicated at the time of the crime. Intoxication evidence of equal weight was found sufficient to require an intoxication charge in State v. Carter, supra. In rejecting the state’s claim of lack of evidence of an adverse effect upon the defendant’s mental state, our Supreme Court in Carter stated that “the defendant did describe in simple but explicit fashion the result upon him of the substances he claimed to have ingested. If the jury believed his assertion in the confession that he was so intoxicated that he entered the house only to find a place to sleep without being concerned about whether anyone was at home, they could not have found the ‘intent to commit a crime therein/ which § 53a-101 (a) requires as an element of the offense. Since the state had the burden of proving this element, the quantum of evidence essential to warrant consideration of the effect of intoxication on the defendant can be no greater than that which might have raised a reasonable doubt as to the existence of the specified mental state.” (Emphasis added.) Id., 627-28.

The Supreme Court, in the very recent case of State v. Vinal, 198 Conn. 644, 658-59, 504 A.2d 1364 (1986), summed up the jury’s role in such a case: “A criminal defendant’s intoxication is relevant to the determination of his capacity to form a specific intent to commit a crime; see State v. D’Antuono, 186 Conn. 414, 423, 441 A.2d 846 (1982); see also General Statutes § 53a-7; but it is not dispositive of the issue. It is for the jury to decide, after weighing all the evidence adduced at trial, whether a criminal defendant’s intoxication rendered him incapable of forming the intent required to commit the crime with which he is charged. See State v. Smith, 185 Conn. 63, 70 n.7, 441 A.2d 84 (1981).”

We conclude that the evidence of intoxication was sufficient to have raised a reasonable doubt as to the existence of the requisite mental state and that the trial court, therefore, did err in refusing to charge upon intoxication in relation to the specific intent required by General Statutes § 53a-60 (a) (1).

There is error, the judgment is set aside and a new trial is ordered.

In this opinion the other judges concurred.

       General Statutes § 53a-60 provides in pertinent part: “(a) A person is guilty of assault in the second degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person . . . .”

       A similar mislabeling was considered by the Supreme Court in State v. Shine, 193 Conn. 632, 635 n.4, 479 A.2d 218 (1984), in which the court stated: “It is necessary for us to clarify the use of the word ‘defense.’ General Statutes § 53a-7 expressly provides that intoxication is not a defense to a criminal charge but where it is admissible the defendant may offer evidence of intoxication to negate an element of the crime charged. Under § 53a-7, once the defendant has introduced enough evidence to raise the issue, as part of the state’s burden of proving every element of the crime, it is its burden to disprove intoxication. See State v. Turcio, 178 Conn. 116, 132, 422 A.2d 749 (1979), cert. denied, 444 U.S. 1013, 100 S. Ct. 661, 62 L. Ed. 2d 642 (1980). Although both the trial court and the defendant have inaccurately used the word ‘defense’ to describe the relevance of this evidence, they did not connote a shift in the burden of proof. See General Statutes § 53a-12.”

       We do not read State v. Rosado, 178 Conn. 704, 707-708, 425 A.2d 108 (1979), as holding that whenever any defense, affirmative or otherwise, is raised, the defendant must admit the crime in order to receive a jury charge on his theory of defense. The holding of the case is “that only when evidence indicating the availability of one of the . . . legally recognized defenses is placed before a jury is a defendant entitled as a matter of law to a theory of defense instruction.” (Emphasis in original.) Id., 708.


author: Dupont, C. J.

text:
    Tammy Evans v. Carol Santoro et al.
    (3917)
    Dupont, C. J., Spallone and Bieluch, Js.
    Argued December 4, 1985
    decision released April 8, 1986

      Richard N. Petrucci, with whom, on the brief, was Robert P. Cárdeme, for the appellants (respondents).

      Arnold Orlovitz, for the appellee (petitioner).
   Dupont, C. J.

This appeal arose from an application for a writ of a habeas corpus in which the petitioner, Tammy Evans, sought custody of her daughter, Abigail Santoro. The child had resided with the respondents, the child’s paternal grandparents, since the death of the child’s father, William Santoro, from whom the petitioner was divorced. The respondents contested the action and requested that they be awarded custody. The trial court rendered judgment for the petitioner. From that judgment, the respondents appeal. The issues of this appeal are whether the trial court erred (1) in placing the burden of proof on the respondents, (2) in considering the parental rights of the petitioner, and (3) in concluding that the petitioner should be awarded custody of the child.

The relevant facts are not in dispute. The child was bom on November 9,1980. When the child was approximately six weeks old, the petitioner resumed working outside of the home. The respondents took care of the child while the petitioner worked. Under this arrangement, the child spent about forty hours a week with the respondents. In November, 1982, the petitioner and the child’s father separated, with the petitioner leaving the child with the father. The respondents continued taking care of the child on a daily basis.

In July, 1983, the petitioner and the child’s father were divorced. The father was awarded custody of the child without objection by the petitioner, who remarried two months later. On November 8,1983, the father was killed in an automobile accident. Following the father’s death, the child resided with the respondents.

The trial court found that the child had strong emotional ties to the respondents, who had provided the child with a loving and nurturing environment for most of her life. It also found that the respondent grandfather and the respondent grandmother, who were, respectively, fifty-two and forty-nine years old, had clearly demonstrated that they had the ability to be fit custodial parents. It found that the petitioner was also a suitable custodial parent, had maintained emotional ties with the child, and had demonstrated a willingness to foster a continuing relationship between the child and the respondents. The trial court stated that it was mindful of the strong attachments between the respondents and the child and of the efforts they had made in enriching the child’s life. It concluded, however, that it would be in the child’s best interest for custody to be awarded to the petitioner. In recognition of the importance of the respondents in the child’s life, the court awarded them reasonable and liberal visitation rights. It did not, however, order the respondents to return the child immediately to the petitioner, but, instead, allowed the child to continue to reside with the respondents until further order of the court. The court contemplated a transitional period, during which the parties would consult a psychiatrist for aid in establishing a schedule of contacts between the petitioner and the child. The precise schedule was to be ordered by the court at a future hearing.

I

The first claim of error which the respondents raise is that the trial court erred by placing the burden of proof upon them. A habeas corpus petition concerning a minor child’s custody is an equitable proceeding in which the trial court is called upon to decide, in the exercise of its sound discretion, the custodial placement which will be best for the child. Nye v. Marcus, 198 Conn. 138, 141, 502 A.2d 869 (1985); McGaffin v. Roberts, 193 Conn. 393, 403, 479 A.2d 176 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1747, 84 L. Ed. 2d 813 (1985).

In order to invoke the aid of a habeas corpus writ to enforce a right to physical custody of a minor, the applicant for the writ must show a prima facie legal right to custody. 39 Am. Jur. 2d, Habeas Corpus § 118; cf. Nye v. Marcus, supra, 144. Once the writ has issued, the burden of proving that a change of custody would be in the child’s best interest rests upon the party seeking the change. Kearney v. State, 174 Conn. 244, 252, 386 A.2d 223 (1978). In this case, that party was the petitioner.

The petitioner alleged in her petition that she was legally entitled to custody as the child’s biological parent and statutory guardian. She did not, however, make any allegations relating to the best interest of the child. See Adamsen v. Adamsen, 151 Conn. 172, 175-77, 195 A.2d 418 (1963). The respondents did not file a return and there were no subsequent pleadings which put the best interest of the child in issue. The court nevertheless was faced with that ultimate question. Nye v. Marcus, supra.

General Statutes § 45-43 provides that if either the mother or father of a minor child dies or is removed as guardian, the other parent of the child shall become the sole guardian of the person of the minor. “Guardianship” as applied to the person of a minor includes the “obligation of care and control.” General Statutes § 45-42a (5). It is firmly established in our law that a guardian of the person of a minor is entitled to physical custody, that is, the immediate care and control of his or her ward. See McGaffin v. Roberts, supra, 410 (Parskey, J., dissenting); Miller v. Miller, 158 Conn. 217, 220, 258 A.2d 89, cert. denied, 396 U.S. 940, 90 S. Ct. 374, 24 L. Ed. 2d 241 (1969); Boardman v. Boardman, 135 Conn. 124, 129, 62 A.2d 521 (1948). Upon the death of the child’s father, the petitioner became the sole legal guardian of the person of the child. As such, she established a prima facie right to the physical custody of her daughter. The establishment of this prima facie right, however, did not relieve her of the burden of proving that changing her daughter’s physical custody would be in the child’s best interest. See Kearney v. State, supra.

The transcript discloses that counsel for the petitioner requested that the respondents be required to present their case first because they must “furnish evidence as to why it would be for the best interest of this child not to be turned back to her natural mother.” The court ordered the petitioner to proceed, but later in the trial concluded that “the burden in this case is upon the grandparents.” The burden of proof was on the petitioner, and the court therefore erred.

To be cause for reversal, however, the error must be shown to be harmful in the sense that it is likely to have affected the result. Anonymous v. Norton, 168 Conn. 421, 430, 362 A.2d 532, cert. denied, 423 U.S. 935, 96 S. Ct. 294, 46 L. Ed. 2d 268 (1975). An examination of the memorandum of decision reveals that the trial court’s ultimate decision was based on a consideration of all of the evidence presented by both sides and that the standard which it applied to the evidence was that of the best interest of the child. The court stated that it “carefully considered the evidence in favor of the grandparents’ claim to custody and weighed it against the evidence which favored the mother’s assertion of her rights to custody as the sole surviving parent.” Having done so, it concluded that it would be in the best interest of the child to be placed in the custody of the mother. The court applied to the evidence the appropriate standard by which child custody decisions are measured. Yontef v. Yontef, 185 Conn. 275, 282, 440 A.2d 899 (1981). The error, therefore, was harmless because it is not likely the result would have been affected.

II

The respondents’ second claim is that the court erred in its consideration of the petitioner’s right to the physical custody of the child as her natural parent. A careful reading of the memorandum of decision belies any assertion that the court’s acknowledgment of this right impinged upon its proper consideration of the child’s best interest.

The memorandum states, in part: “The court has carefully considered the evidence in favor of the grandparents’ claim to custody and weighed it against the evidence which favored the mother’s assertion of her right to custody as the sole surviving parent. The court concludes that it would be in the best interest of the child that custody be awarded to the mother. The court is satisfied that the mother is a fit custodial parent who will provide adequate care and affection for the child. She has maintained emotional ties with the child and has a positive relationship with her at the present time. She can provide an environment for the child which includes the presence of siblings closer to the child’s age. She has demonstrated a willingness to foster a continuing relationship between the child and the grandparents. These reasons together with the mother’s right to the companionship of the child as well as the right to guide the child’s development are the basis of the court’s conclusion.”

Placing the court’s consideration of the petitioner’s right to custody in context, it is apparent that, while acknowledging the petitioner’s significant and constitutionally protected right to the companionship, care, custody and management of her child; Cappetta v. Cappetta, 196 Conn. 10, 14, 490 A.2d 996 (1985); Emerick v. Emerick, 5 Conn. App. 649, 660-61, 502 A.2d 933 (1985); the court applied the correct standard in weighing the evidence. The court’s recognition of the petitioner’s right to physical custody as the biological parent of the child did not inhibit its search for the best interest of that child.

Ill

The respondents additionally claim that the trial court abused its discretion by reaching a conclusion which was not reasonably supported by the evidence. The trial court possessed broad discretion to decide what was in the best interest of the child; Sullivan v. Bonafonte, 172 Conn. 612, 614, 376 A.2d 69 (1977); and our review in this case, as in other cases involving family matters, is restricted. Our interference is warranted only if we are convinced that the trial court clearly abused its discretion. Kearney v. State, supra.

The respondents produced as expert witnesses a domestic relations officer and a child psychologist. The domestic relations officer testified that, in his judgment, the best interest of the child dictated that custody remain with the respondents. The psychologist testified that the bond between the respondents and the child had developed to the extent that the respondents had become the child’s psychological parents. Both testified that the child was presently emotionally healthy, and that it would be detrimental to the child to upset the relationship which she had developed with the respondents. The respondents testified that they lived in a five-bedroom home, had “all kinds of play things” and an above-ground swimming pool in their backyard, and that the child had her own bedroom in their home “plus another one that she has filled up.”

The petitioner testified that she lived with her new husband and their baby in a two-bedroom basement apartment, that the family planned to move to a larger apartment if the child were placed in her custody, that she loved the child and that she wanted the child to grow up with siblings. She stated that she felt that the respondents were doing a good job of raising the child and that she would be willing to allow them reasonable and liberal visitation because she believed that the child needed their love. The petitioner characterized her relationship with the child as good.

The trial court “was free to accept or reject, in whole or in part, the evidence of either party.” (Citation omitted.) Brey v. Brey, 1 Conn. App. 397, 399, 472 A.2d 354 (1984). It was not bound to accept the testimony of the expert witnesses. Yontef v. Yontef, supra, 281. The trial court found that the petitioner was a fit custodial parent who enjoyed a positive relationship with her child. Nothing in the record refutes that finding. While the respondents were more financially comfortable than the petitioner and consequently might be able to provide more for the child materially than the petitioner, that fact is not determinative of the child’s best interest. See In re Juvenile Appeal (Anonymous), 177 Conn. 648, 661-62, 420 A.2d 875 (1979).

The trial court fashioned its orders so that the respondents would be able to maintain and strengthen their ties to the child in their role as grandparents by frequent and liberal visitation. They will continue to provide a valuable source of love and enrichment for the child in the years to come.

There is no error.

In this opinion the other judges concurred.

       At the outset of the proceeding, the parties orally stipulated that the petitioner was the child’s surviving natural parent and that her parental rights had not been terminated.

       The record discloses that the respondents never formally opposed the habeas petition by filing a return, although the court requested that they do so. See Practice Book § 533. They stated that they sought custody of the child, and the court ultimately treated that oral statement as their return and determined whether custody should be awarded to the grandparents or to the natural mother. A return pursuant to Practice Book § 533, however, should have been filed. Without condoning this defect in procedure, “we conclude that to remand the case would serve no purpose since our ultimate decision would remain the same.” (Citation omitted.) Macri v. Hayes, 189 Conn. 566, 567 n.2, 456 A.2d 1186 (1983).
      The application for a writ of habeas corpus is regarded as a pleading in the nature of a complaint, and the return in the nature of an answer. Arey v. Warden, 187 Conn. 324, 332, 445 A.2d 916 (1982). Ordinarily, a trial court may not proceed to trial on the merits where the pleadings are not closed. Doublewal Corporation v. Toffolon, 195 Conn. 384, 391, 488 A.2d 444 (1985); County Federal Savings & Loan Assn. v. Eastern Associates, 3 Conn. App. 582, 585 n.4, 491 A.2d 401 (1985). A writ of habeas corpus in a child custody proceeding, however, invokes the full equity jurisdiction of the court to determine custody according to the best interest of the child. 2 McCahey, Kaufman, Kraut, Gaffner, Silverman & Zett, Child Custody & Visitation Law and Practice § 7.04[2]; see Baram v. Schwartz, 151 Conn. 315, 197 A.2d 334 (1964). Even without a responsive pleading, there is some authority which would allow a court to determine the question of the legal right to custody, where the purpose of the responsive pleading has otherwise been fulfilled. See 2 McCahey, Kaufman, Kraut, Gaffner, Silverman & Zett, supra, § 7.04.

       Public Acts 1985, No. 85-244, § 2, effective May 30, 1985, provides: “In any dispute as to the custody of minor children involving a parent and a non-parent, there shall be a presumption that it is in the best interest of the child to be in the custody of the parent.” The presumption, which is one of public policy, places upon the nonparent “the burden of proving sufficient facts to put the presumed fact [that it is in the best interest of the child to be in the custody of the parent] into issue.” Anderson v. Litchfield, 4 Conn. App. 24, 28, 492 A.2d 210 (1985). The presumption, not involved in this case, does not shift the burden of proof in a custody dispute between a parent and a nonparent, but makes that burden easier to sustain because it gives the parent an initial advantange. Clark, Law of Domestic Relations, p. 591.

       A “burden of proof’ is often used to mean two different things, the burden of persuading the trier, and the burden of producing evidence, that is, the burden of going forward. State v. Brown, 163 Conn. 52, 65 n.5, 301 A.2d 547 (1972). In this case, a review of the transcript makes it clear that the trial court intended to place the burden of persuasion on the respondents.

       At the time of the trial, the petitioner was pregnant with a third child.


author: Daly,. J.

text:
    Charles Olsen et al. v. Inland Wetlands Commission of the City of Torrington et al.
    (3622)
    Hull, Spallone and Daly, Js.

      Argued January 15
    decision released April 8, 1986

      Eugene A. Marconi, for the appellant (plaintiff Orlando Moranino).

      JohnP. Febbroriello, for the appellees (defendants).
   Daly,. J.

This is an appeal by the plaintiff, Orlando Moranino, from the granting of an inland wetlands permit by the named defendant for the construction of two apartment buildings. From the dismissal of the appeal by the trial court for lack of aggrievement, Orlando Moranino is the sole appellant.

The facts are not in dispute. On June 17, 1983, the defendant Barry Cone applied to the defendant commission for a permit to build sixteen one-bedroom units in two separate buildings on property located in a designated inland wetlands area near Birney Brook in Torrington. The defendant, Harold Burns, was owner of the land. The commission held a public hearing on September 12, 1983, and held a voting session on October 24,1983, at which time it voted three to one, with two abstentions, to grant the permit. One commissioner voting in favor of the permit had not attended the public hearing. From this ruling, the plaintiffs, Charles Olsen, John Boido, Orlando Moranino and Herman Weingart, appealed to the trial court. Moranino, claiming aggrievement, was the only plaintiff who testified and, therefore, the trial court dismissed the action as to the remaining plaintiffs. Moranino testified that he was the owner of abutting property, received specific notice of the hearing, attended and was heard through his attorney. Some testimony was elicited with regard to the evaluation of surrounding properties resulting from approval of the project. The trial court found that the plaintiff was not aggrieved, and this appeal followed.

The plaintiff has challenged the finding that he was not an aggrieved person, claiming that the trial court applied an incorrect standard as to his burden of proof of aggrievement.

“This action arises under the Inland Wetlands and Watercourses Act (act) which is contained in General Statutes §§ 22a-36 through 22a-45, inclusive. Pursuant to § 22a-42 of the act, municipalities are encouraged to create agencies to regulate activities affecting wetlands and watercourses within their territorial limits. . . . Under the act, no regulated activity may be conducted on a wetland without a permit. General Statutes § 22a-42a (c). Municipal agencies are authorized to grant, deny or limit any permit for a regulated activity. General Statutes § 22a-42a (d).” McCallum v. Inland Wetlands Commission, 196 Conn. 218, 221, 492 A.2d 508 (1985).

The plaintiff has appealed from the decision of the commissioner pursuant to General Statutes § 22a-43 which provides in relevant part: “Any person aggrieved by any regulation, order, decision or action made pursuant to sections 22a-36 to 22a-45, inclusive . . . may, within fifteen days after publication of such regulation, order, decision or action appeal to the superior court . . . .” The plaintiff claims that he is aggrieved because he is an adjoining landowner and because he received notice of the hearing. Mere status as a party or participant in a hearing before an administrative agency does not by itself constitute aggrievement for the purposes of appellate review. Bakelaar v. West Haven, 193 Conn. 59, 66, 475 A.2d 283 (1984). While a landowner’s standing or aggrievement under General Statutes § 8-8 may be established by merely owning land which abuts land subject to a zoning decision, the provisions of § 22a-43 do not so expressly provide. The plaintiff, therefore, bears the burden of proving his claim of aggrievement under § 22a-43.

“The fundamental test for determining aggrievement encompasses a well-settled twofold determination: first, ‘the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision.” Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 493, 400 A.2d 726 (1978), quoting Nader v. Aldermatt, 166 Conn. 43, 51, 347 A.2d 89 (1974); Hall v. Planning Commission, 181 Conn. 442, 444, 435 A.2d 975 (1980). The determination of aggrievement is a question of fact for the trial court, and the plaintiff has the burden of proving that fact. Hartford Distributors, Inc. v. Liquor Con trol Commission, 177 Conn. 616, 622, 419 A.2d 346 (1979); Nader v. Aldermatt, supra, 59. The trial court must consider whether the plaintiffs allegations, if proven, constitute aggrievement as a matter of law and, then, whether the plaintiff can prove the truthfulness of his allegations. Mystic Marinelife Aquarium, Inc. v. Gill, supra, 495.

To establish aggrievement, the plaintiff offered the testimony of a property assessor as evidence that the commission’s approval of the application would depreciate the value of his property. The court found and the transcript reveals that this testimony was purely speculative and insufficient to establish aggrievement. “Aggrievement is established if ‘there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected.’ ” (Citation omitted.) Hall v. Planning Commission, supra, 445. Mere generalization and fears are not sufficient to establish aggrievement. Walls v. Planning & Zoning Commission, 176 Conn. 475, 478, 408 A.2d 252 (1979).

The conclusions reached by the trial court cannot be disturbed on appeal unless the subordinate facts do not support them. We find no error in the judgment of the court that the plaintiff failed to carry his burden on the issue of aggrievement. Pleading and proof of aggrievement were prerequisites to the trial court’s subject matter jurisdiction. In the absence of such pleading and proof, the court properly dismissed the appeal from the commission’s decision.

There is no error.

In this opinion the other judges concurred.

       The named plaintiff, Charles Olsen, and other plaintiffs are not involved in this appeal.

       The city of Torrington did not appear at oral argument but sides with the defendants.


author: Borden, J.

text:
    Michael Hunt v. Paul W. Friedman et al.
    (4241)
    Dupont, C. J., Borden and Daly, Js.
    Argued February 7
    decision released April 8, 1986

      Ronald T. Murphy, with whom, on the brief, was Richard P. Weinstein, for the appellants (defendants).

      Eliot B. Gersten, for the appellee (plaintiff.
   Borden, J.

The defendants appeal from the judgment of the trial court rendered upon an attorney referee’s report. The principal issue involves the propriety of the referee’s finding that the defendants were estopped from denying liability under a real estate listing agreement which did not comply with General Statutes § 20-325a. We find error.

The plaintiff sued the defendants for a real estate commission, claiming breach of an exclusive sales agreement which allegedly complied with General Statutes § 20-325a. That statute requires, inter alia, that a real estate listing agreement “be signed by the seller . . . . ” General Statutes § 20-325a (b) (5). The case was referred to an attorney trial referee. See Ruhl v. Fairfield, 5 Conn. App. 104, 496 A.2d 994 (1985).

The referee found the following facts: The plaintiff is a licensed real estate broker and the defendants, Paul W. Friedman and Leslie A. Friedman, are a married couple who owned a residence in East Hampton. There was a written document, purporting to be signed by the defendants, which, if effective against them, obligated them to pay the plaintiff a commission on any sale of their house during the period set by the terms of the document. The house was sold within that period.

The referee specifically found that the plaintiff did not establish that the defendants signed the document. Therefore, one of the necessary conditions of General Statutes § 20-325a was not established. The referee also found, however, that the named defendant did sign a subsequent document which stated, in part: “I hereby terminate the listing contract for the sale of my house, 203 Clark Hill Rd., East Hampton, Connecticut.” He found that this document indicated Friedman’s acknowledgment that the purported listing agreement was in effect. On this basis alone, the referee concluded that both defendants were estopped by this second document from denying the validity of the first document, and that they were both liable to the plaintiff for the claimed commission.

The trial court overruled the defendants’ objections to the referee’s report and rendered judgment for the plaintiff. This appeal followed.

As to the defendant Leslie Friedman, there is no finding that she signed the second document purporting to “terminate” the first document. Whatever effect, if any, her husband’s letter may have as to him, it cannot be attributed to her. Bolmer v. Kocet, 6 Conn. App. 595, 507 A.2d 129 (1986). There is no basis for a judgment against the defendant Leslie Friedman.

The judgment against Paul Friedman is, moreover, equally without foundation, but for a different reason. We need not decide in this case whether the doctrine of estoppel can operate to permit recovery on an agreement which does not comply with General Statutes § 20-325a. Even if we assume without deciding that the doctrine of estoppel can so operate, there is no finding in this record to support the application of that doctrine.

Estoppel “require[s] proof of misleading conduct by one party resulting in detrimental reliance by the other.” Latimer Point Management Corporation v. Anderson, 1 Conn. App. 310, 313, 471 A.2d 670 (1984). Even if we consider the document signed by Paul Friedman as misleading to the plaintiff, there is no finding of detrimental reliance by the plaintiff resulting from that document. Indeed, it is difficult to conceive of what the plaintiff could have done in detrimental reliance on that document, which in effect told him to do nothing with respect to the defendants’ property.

There is error, the judgment is set aside and the case is remanded with direction to render judgment for the defendants.

In this opinion the other judges concurred.


author: Spallone, J.

text:
    Liberty Mobile Home Sales, Inc. v. David E. Cassidy et al. Liberty Mobile Home Sales, Inc. v. Department of Consumer Protection et al.
    (3996) (4198)
    Hull, Spallone and Bieluch, Js.
    Argued February 10
    decision released April 8, 1986

      Philip L. Steele, for the appellant (plaintiff in both cases).

      Donald E. Wasik, assistant attorney general, with whom were Steven M. Rutstein, assistant attorney general, and, on the brief, Joseph I. Lieberman, attorney general, for the appellee (defendant department of consumer protection).

      Michael J. McVerry filed a brief for the appellees (named defendant et al. in the first case).
   Spallone, J.

Because the dispositive issue in these appeals is the same, this opinion will be applicable to both. Liberty Mobile Home Sales, Inc. (Liberty), the plaintiff in each action, operates a mobile home park. David E. and Wendy A. Cassidy (Cassidy), defendants with the Department of Consumer Protection (DCP) in the first case, are the owners of a mobile home which is located within the park operated by Liberty. The DCP is a defendant along -with Ruth A. Jewett, who also owns a mobile home located in Liberty’s park, in the second case, although Jewett has not filed a brief in this appeal.

The sole issue before this court is whether one who fails to petition for a declaratory ruling pursuant to General Statutes § 4-176 of the Uniform Administrative Procedure Act (UAPA) is entitled to bring an action for a declaratory judgment pursuant to General Statutes § 4-175 thereof.

Liberty, in each of the appeals, is contesting the decision of the trial court dismissing its action for a declaratory judgment. The court’s decisions were based on the failure of Liberty to exhaust its administrative remedies by not petitioning DCP for an administrative ruling prior to bringing the actions.

The procedural history of each case is the same. Cassidy and Jewett, in separate petitions, requested DCP to issue a declaratory ruling concerning the disapproval by Liberty of the resale of their mobile homes. General Statutes §§ 21-64 through 21-84a contain provisions which authorize DCP to issue licenses for the operation of mobile home parks and also allow DCP to review the conditions imposed by the park operator for the resale of mobile homes. In each case, Liberty gave as a reason for disapproval of the resale of the mobile homes the fact that they did not conform to a nationally recognized building and construction code. The DCP, as to both Cassidy and Jewett, issued declaratory rulings which held in pertinent part that the failure to meet a nationally recognized building or construction code could not constitute a ground for disapproval unless such failure rendered the home unsafe or unsanitary.

Upon the issuance of each declaratory ruling, Liberty filed with DCP a motion for reconsideration and requested a hearing for the purpose of finding facts. DCP declined to do either. Liberty then filed separate actions in the Superior Court with respect to Cassidy and Jewett seeking a declaratory judgment. Both actions were dismissed upon the trial court’s finding that Liberty failed to exhaust its administrative remedies. We agree with the trial court.

Although Liberty was neither a petitioner for the declaratory rulings nor a party to the administrative proceedings, it argues, in each case, that the motion for reconsideration it filed before DCP was, in effect, the functional equivalent of the petition for a declaratory ruling that is mandated by General Statutes § 4-175 as a condition precedent to bringing an action for a declaratory judgment.

We find no merit to this contention. The trial court did not err when it found that Liberty failed to exhaust its administrative remedies pursuant to §§ 4-175 and 4-176 before seeking a declaratory judgment. Liberty’s requests for reconsideration did not constitute the petition for a declaratory ruling required by § 4-176. Nowhere in the UAPA is there any provision whereby a nonparty to an administrative declaratory ruling may seek reconsideration of the DCP’s action. Clearly, the statutory condition imposed by § 4-175 that “[a] declaratory judgment may not be rendered unless the plaintiff has requested the agency to pass upon the validity or applicability of the regulation or order in question, pursuant to § 4-176,” was not complied with by Liberty in either case. The language in General Statutes § 4-176 cannot be construed to allow the substitution of a motion by a nonparty for reconsideration of a declaratory ruling issued at the request of others for the statutory requirement of a petition for a declaratory ruling by such nonparty under § 4-176. Where, as here, the statute is clear and unambiguous, there is no need for judicial construction. Doe v. Manson, 183 Conn. 183, 186, 438 A.2d 859 (1981).

The plaintiff here has not conformed to the statutory requirement of filing a petition for a declaratory ruling and therefore failed to exhaust the proper administrative remedies. Connecticut Mobile Home Assn., Inc. v. Jensen’s Inc., 178 Conn. 586, 588, 424 A.2d 285 (1979). Further, the doctrine of exhaustion is grounded in a policy of fostering an orderly process of administrative adjudication and judicial review and a party should not be allowed to interject unnecessary and potentially confusing elements into an otherwise well defined area of the law. See Connecticut Life & Health Ins. Guaranty Assn. v. Jackson, 173 Conn. 352, 358-59, 377 A.2d 1099 (1977). Its argument that a motion for reconsideration meets the statutory requirements is not persuasive and is violative of the principles addressed above.

We hold in each case that the trial court’s finding that Liberty failed to exhaust its administrative remedies and its dismissal of the complaint was proper and in accordance with the law.

There is no error on either appeal.

In this opinion the other judges concurred.

       General Statutes § 4-176 provides: “Each agency may, in its discretion, issue declaratory rulings as to the applicability of any statutory provision or of any regulation or order of the agency, and each agency shall provide by regulation for the filing and prompt disposition of petitions seeking such rulings. If the agency issues an adverse ruling, the remedy for an aggrieved person shall be an action for declaratory judgment under section 4-175 unless the agency conducted a hearing pursuant to sections 4-177 and 4-178 for the purpose of finding facts as a basis for such ruling, in which case the remedy for an aggrieved person shall be an appeal pursuant to section 4-183. If the agency fails to exercise its discretion to issue such a ruling, such failure shall be deemed a sufficient request by the plaintiff for the purposes of section 4-175. Rulings disposing of petitions have the same status as agency decisions or orders in contested cases.”

       General Statutes § 4-175 provides: “The validity or applicability of a regulation or order of an agency may be determined in an action for declaratory judgment brought in the superior court for the judicial district of Hartford-New Britain, if the regulation or order, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the plaintiff. The agency shall be made a party to the action. A declaratory judgment may not be rendered unless the plaintiff has requested the agency to pass upon the validity or applicability of the regulation or order in question, pursuant to section 4-176, and the agency has either so acted or has declined to exercise its discretion thereunder.”


author: PETERS, J.

text:
    RONALD JOHNSON v. COMMISSIONER OF CORRECTION
    (AC 19394)
    Foti, Schaller and Peters, Js.

      Argued June 13
    officially released September 19, 2000

      Adele V. Patterson, deputy assistant public defender, for the appellant (petitioner).

      Steven R. Strom, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (respondent).
   Opinion

PETERS, J.

Article IV (c) of General Statutes § 54-186 is a provision of the Interstate Agreement on Detainers (IAD) that affords a Connecticut prisoner the right to request a speedy trial in another state that has lodged a detainer against the prisoner. This habeas appeal con-cems two issues of law about the enforcement of that speedy trial right. One issue is whether the speedy trial right is enforceable without a showing of prejudice to the prisoner. The other issue is whether the speedy trial right with respect to out-of-state criminal proceedings automatically is tolled during ongoing criminal proceedings in this state. We agree with the trial court that, on both of these grounds, the petitioner, in the circumstances of this case, has not shown that he is entitled to the relief that he seeks.

The petitioner, Ronald Johnson, filed a petition for a writ of habeas corpus in which he asked the habeas court to quash a detainer that had been lodged against him by a district attorney in the Commonwealth of Massachusetts, where he was charged with having committed rape. He claimed that the detainer was no longer enforceable because authorities in Massachusetts had failed to commence proceedings against him within 180 days of their receipt of his request for speedy disposition of the charge. The respondent, the commissioner of correction, acknowledged the underlying facts alleged in the petition but denied the petitioner’s right to relief, both on jurisdictional and on substantive grounds.

The court agreed with the petitioner that it had jurisdiction to decide whether to quash the Massachusetts detainer. On the merits, however, the court agreed with the respondent that the petitioner had failed to establish, by a fair preponderance of the evidence, that the detainer was no longer enforceable. Accordingly, the court rendered a judgment denying the petitioner’s request for relief and dismissing his petition for a writ of habeas corpus.

Most of the underlying facts are undisputed. As a result of the petitioner’s conviction on June 17, 1996, of burglaiy in the third degree in violation of General Statutes § 53a-103, he was sentenced to a term of incarceration of two years.

On July 1, 1996, while the petitioner was serving the burglary sentence in Connecticut, a Massachusetts district attorney, having charged the petitioner with committing rape in that state, lodged a detainer against the prisoner with the Connecticut correctional institution at which he was imprisoned. On July 5, 1996, the petitioner, having been informed of the detainer, initiated a request for final disposition of the Massachusetts charge against him. See General Statutes § 54-186, Art. Ill (a). That same day, Connecticut correctional personnel completed three IAD forms, IAD forms 2,3 and 4, for transmission to Massachusetts. These forms correctly documented the petitioner’s request for speedy disposition and his current inmate status. They also included an offer by authorities in Connecticut to deliver him to Massachusetts for temporary custody for “speedy and efficient prosecution” of the pending Massachusetts charge. These forms were sent to Massachusetts on August 2, 1996, and delivered there on August 8, 1996.

On August 16, 1996, while the petitioner still was imprisoned in this state because of his robbery conviction, he was charged here with having committed another crime. The state charged that on May 15, 1996, he had committed sexual assault in violation of General Statutes § 53a-70.

The petitioner’s trial in New Haven on the sexual assault charge began on September 5, 1996. Until the following March, the petitioner was taken, every two weeks, from his place of imprisonment to the New Haven courthouse. He was again returned to the courthouse on June 19 and July 17, 1997. On September 19, 1997, he pleaded guilty and was sentenced to a term of imprisonment of nine years, execution suspended after four years. This is the Connecticut sentence that the petitioner currently is serving.

In the meantime, on December 17, 1996, authorities in Massachusetts had forwarded to this state a series of documents, IAD forms 5 and 6, manifesting their request for designated personnel in Massachusetts to take temporary custody of the petitioner to try him on the Massachusetts charge of rape. There is a dispute about the validity of the court’s finding that authorities in Connecticut refused to honor this request at that time. On October 15, 1997, Massachusetts authorities renewed their request. That request was denied because of the pendency of the present habeas proceedings. The petitioner has not yet been brought to trial on the pending Massachusetts charge.

Although the petitioner offers several arguments for reversal of the judgment of the court dismissing his petition, the dispositive issues are twofold. First, did the court properly require the petitioner to show, as a condition for obtaining relief, that he was prejudiced by delay in the enforcement of his right under the IAD to a Massachusetts trial within 180 days? Second, did the court properly conclude that any such delay was excused because the running of the 180 day period was tolled during ongoing criminal proceedings in this state? We concur in the court’s resolution of both issues in favor of the respondent.

I

PREJUDICE

The petitioner claims that it was improper, as a matter of law, for the court to deny his petition for a writ of habeas corpus on the ground that he had failed to prove prejudice from the delay in enforcement of his right under the IAD to a trial in Massachusetts within 180 days of the receipt by authorities in Massachusetts of his request for such speedy trial. Our standard of review of the petitioner’s claim is plenary. We must decide whether the court’s conclusion is “legally and logically correct and find[s] support in the facts that appear in the record.” (Internal quotation marks omitted.) Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 232, 680 A.2d 127 (1996), cert. denied, 520 U.S. 1103, 117 S. Ct. 1106, 137 L. Ed. 2d 308 (1997); Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980); Berger v. Fitzgerald, 55 Conn. App. 138, 145, 739 A.2d 287, cert. denied, 251 Conn. 922, 742 A.2d 358 (1999); see also Practice Book § 60-5.

The validity of the petitioner’s claim must be considered in light of the purpose of the IAD. The IAD “is designed to encourage the expeditious and orderly disposition of criminal charges pending in one state against a prisoner incarcerated in another state. General Statutes § 54-186, Article I.” State v. Herring, 210 Conn. 78, 80, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989); United States v. Mauro, 436 U.S. 340, 359, 98 S. Ct. 1834, 56 L. Ed. 2d 329 (1978); Smith v. Liburdi, 26 Conn. App. 254, 256, 600 A.2d 17 (1991), cert. denied, 221 Conn. 910, 602 A.2d 9 (1992). We are persuaded that the court’s conclusion in this case fully supports the purpose of the IAD. Interstate cooperation to assist in the timely resolution of pending charges is fostered by allowing a sending state (Connecticut) to complete its ongoing criminal proceedings before agreeing to the temporary transfer of an in-state prisoner for an out-of-state trial in the requesting state (Massachusetts). We agree, therefore, with the court and the respondent that the habeas petitioner in this case could not obtain relief from the Massachusetts detainer without showing that he had been prejudiced by Connecticut’s decision to postpone his transfer there.

The petitioner’s challenge to the court’s ruling on prejudice rests primarily on the holding of a 1972 New York trial court decision, which declared that the existence of an outstanding detainer should be presumed to have caused a prisoner to suffer from additional restrictive measures during his imprisonment. Baker v. Schubin, 72 Misc. 2d 413, 416-17, 339 N.Y.S.2d 360 (N.Y. Sup. Ct. 1972). In our view, a more persuasive precedent is State v. Herring, supra, 210 Conn. 78. See also Com monwealth v. Petrozziello, 22 Mass. App. Ct. 71, 81, 491 N.E.2d 627 (1986) (dismissal of robbery and burglary charges for violation of IAD not appropriate absent proof that defendant’s rehabilitation has been impeded or adversely affected).

While Herring is not precisely on all fours with this case, it too involved a construction of the IAD in the context of delay in honoring a prisoner’s speedy trial right. Herring was a case in which New Jersey, the sending state, had received proper documentation in support of a Connecticut request for a detainer. State v. Herring, supra, 210 Conn. 83. Prison officials in New Jersey unreasonably delayed the prisoner’s ability to obtain a speedy trial by delaying the processing of the Connecticut documentation for six months. Id., 87. This unexcused delay violated subsections (b), (c) and (d) of Article III of the IAD. Id., 88. As a result, although the petitioner was tried promptly in Connecticut, the requesting state, after he was temporarily transferred here, the time period that had elapsed because of the delay in New Jersey exceeded the applicable IAD time standards. Id.

Despite this record of unexcused delay in New Jersey, the Herring court declined to dismiss the Connecticut criminal charges outright. Id., 89. The court held, instead, that the appropriate analysis was to be found in the balancing test of Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). Referring to that test, the court focused, as a key factor, on whether the prisoner had been prejudiced by the delay. In the absence of prejudice, the Herring court concluded that dismissal of the prisoner’s Connecticut charges was unwarranted. State v. Herring, supra, 210 Conn. 90.

Although the present case involves the validity of a detainer rather than the validity of a prosecution, we are persuaded that we should follow Herring and employ the Barker v. Wingo test to judge the significance of the IAD delays in this case. If anything, this case presents a stronger argument for requiring a showing of prejudice than did Herring. Here, as far as the record shows, the delays at issue did not result from demonstrated administrative failings, either in Connecticut or in Massachusetts. We conclude, therefore, that the petitioner herein was, as the trial court held, required to show prejudice before he could obtain a dismissal of the Massachusetts detainer. He does not contest the fact that he made no such showing.

II

TOLLING

The petitioner also challenges the validity of the court’s conclusion that the Connecticut criminal proceedings in late 1996 tolled the running of the time period otherwise triggered by his timely request for a speedy Massachusetts trial. As with respect to the previous claim of error, we undertake plenary review of this claim insofar as it involves a question of law, but we review questions of fact by asking whether the court’s findings were clearly erroneous. Napoletano v. CIGNA Healthcare of Connecticut, Inc., supra, 238 Conn. 232; Berger v. Fitzgerald, supra, 55 Conn. App. 145; see also Practice Book § 60-5.

The petitioner argues that, as a matter of fact, the court improperly determined that tolling was appropriate because authorities in Connecticut and Massachusetts had fulfilled their underlying IAD obligations. He also argues, as a matter of law, that the IAD does not permit tolling of a proper and timely request for a speedy trial except in the case of delays attributable to the petitioner himself. Although we agree that the petitioner made a proper and timely request for his Massachusetts criminal trial to begin within 180 days, we disagree with his other contentions in the circumstances of this case. We are not persuaded that the LAD speedy trial provisions are as uncompromisingly restrictive as the petitioner claims them to be.

A

The petitioner challenges the validity of the court’s findings of fact in two respects. He claims that there was insufficient evidence to support the court’s findings that, after the lodging of the disclaimer, (1) authorities in Connecticut refused to permit Massachusetts officials to assume temporary custody and (2) Massachusetts officials made reasonable efforts to obtain temporary custody.

The petitioner’s claim of lack of evidentiary support for the challenged findings rests principally on the testimony of Lynn Milling, the interstate compact administrator for the Connecticut department of correction. She stated that, in this case, once notified of the Massachusetts detainer, she had followed the general practice of leaving the resolution of any possible conflict between several prosecutions to the prosecutors involved, with advice to them to “work out the details.” In December, 1996, she had called the Massachusetts prosecutor to advise him of this practice. She further stated that the respondent had done nothing in 1996 to prevent the petitioner’s temporary transfer to Massachusetts. By contrast, the respondent expressly had denied a request by Massachusetts authorities for temporary custody in 1997, when the present habeas corpus proceedings were going forward. In the absence of any other direct testimony, the petitioner contends that the court was required to find that, in 1996, Connecticut authorities took no steps to prevent Massachusetts authorities from taking temporary custody.

The respondent does not challenge the probative value of Milling’s testimony that, in 1996, neither he nor his designated agents had refused a request by Massachusetts officials for temporary custody. Conced-edly, at the habeas hearing, no direct evidence was presented to document whether, at some relevant time, a Connecticut prosecutor had informed his Massachusetts counterpart of the decision of Connecticut officials to refuse the transfer request during the ongoing Connecticut criminal proceedings on the sexual assault charge against the petitioner. Although the continuance mittimuses that were exhibits at trial were evidence of the need for the petitioner’s presence in Connecticut during the protracted time period of his Connecticut sexual assault trial, the mittimuses do not indicate who had requested the continuances. The only fact of record is that the petitioner did not pursue his speedy trial right in his sexual assault prosecution in Connecticut until a date subsequent to the expiration of the 180 day period that he had invoked by asking Massachusetts officials to afford him a speedy trial. See footnote 2.

Despite this sparse record, the respondent argues that, taken as a whole, the evidence presented at trial was sufficient to support the court’s finding. He argues that the established fact of the ongoing Connecticut prosecution at the relevant time permitted the court to infer that Connecticut, speaking through one of its prosecutors or one of its judges, manifested its refusal to relinquish temporary custody to Massachusetts. To state the obvious, the petitioner could not be in two places at the same time. “It is axiomatic that the trier of fact may draw reasonable and logical inferences from the facts proven. ... In doing so, finders of fact are not expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life, but, on the contrary, to apply them to the evidence or facts in hand, to the end that their action may be intelligent and their conclusions correct. . . . Our review of the fact finder’s inferences is limited to determining whether the inferences drawn are so unreasonable as to be unjustifiable.” (Citations omitted; internal quotation marks omitted.) Tianti v. William Raveis Real Estate, Inc., 231 Conn. 690, 700-701, 651 A.2d 1286 (1995); Service Road Corp. v. Quinn, 241 Conn. 630, 640-41, 698 A.2d 258 (1997). We agree with the respondent that the trial court’s finding of fact was not clearly erroneous.

The record similarly supports the court’s finding that officials in Massachusetts took appropriate steps to obtain temporary custody of the petitioner in accordance with their December, 1996 request. Before filing this formal request, Massachusetts authorities had spoken to the Connecticut IAD administrator, Milling, about their interest in proceeding with the Massachusetts charge against the petitioner. Massachusetts authorities properly, and in a timely fashion, sent the required documentation to Connecticut. Again, the trial court reasonably could have inferred that subsequent conversations between the respective prosecutors would have informed Massachusetts officials that further efforts to obtain custody would not be fruitful at that time. That inference is supported by Milling’s testimony that Massachusetts officials requested to be notified as soon as the Connecticut sexual assault prosecution had been completed.

In addition to these fact-specific refutations of the petitioner’s claims of factual error, the respondent argues that it was appropriate for the trial court to take into account the established principle that the petitioner bore the burden of proof to establish his right to the writ of habeas corpus. See, e.g., Summerville v. Warden, 229 Conn. 397, 428, 641 A.2d 1356 (1994); Lubesky v. Bronson, 213 Conn. 97, 109-10, 566 A.2d 688 (1989); Myers v. Manson, 192 Conn. 383, 387, 472 A.2d 759 (1984). We agree. If the evidence at trial was not as detailed as it might have been, it was the petitioner’s burden to fill in the gaps. The challenged findings were not clearly erroneous.

B

We consider next the merits of the petitioner’s argument alleging that the court improperly concluded that his speedy trial right in Massachusetts was tolled by ongoing criminal proceedings in Connecticut. The court’s decision was premised, at least in part, on the petitioner’s failure to demonstrate any breach of duty by either officials in Connecticut or Massachusetts. As we have concluded in part II A of this opinion, that finding was not clearly erroneous. The statutory basis for the court’s ruling is Article VI (a) of the IAD. That section provides in relevant part: “In determining the duration and expiration dates of the time periods provided in articles III and IV of this agreement, the running of said time periods shall be tolled whenever and for as long as the prisoner is unable to stand trial . . . .” General Statutes § 54-186, Art. VI (a).

The issue before us is whether the court properly applied the tolling principle to conclude that, until the petitioner’s sexual assault charge was finally resolved, he was “unable to stand trial” in Massachusetts. We conclude that, on the present record, the court’s ruling must be upheld.

The petitioner takes issue with that conclusion on three grounds. He maintains that he was not “unable to stand trial” in Massachusetts because (1) the respondent failed to establish that the petitioner could not have been transferred to Massachusetts, and tried there, within the 180 day deadline, (2) the Connecticut proceedings were merely “pending” proceedings and therefore cannot justify a refusal to transfer temporary custody to Massachusetts and (3) his conduct did not cause the Connecticut proceedings to continue beyond the 180 day deadline because he had not filed any motions that required resolution before the plenary trial could go forward. See United States v. Roy, 771 F.2d 54, 58-59 (2d Cir. 1985), cert. denied, 475 U.S. 1110, 106 S. Ct. 1520, 89 L. Ed. 2d 918 (1986).

Both parties cite a number of federal and state cases on the effect of competing prosecutorial efforts to pursue multi-state criminal charges against a single defendant. Each has demonstrated that none of these cases is controlling under the circumstances of this case. This is an issue of first impression.

The petitioner cannot prevail on his claim that, at his habeas hearing, the respondent failed to establish that the petitioner could not have been transferred promptly to Massachusetts for the speedy trial that the IAD contemplates. Once the court found that Connecticut, for proper reasons, had refused to permit the temporary transfer, it was logical for the court also to find that that refusal “made it impossible for Massachusetts . . . to bring the petitioner to trial within 180 days.” The court’s finding is the functional equivalent of a determination that the petitioner was “unable to stand trial” in Massachusetts within the 180 day speedy trial period.

The factual record equally disproves the petitioner’s claim that, in the relevant time period, the Connecticut sexual assault proceedings were simply pending and not yet ongoing. The continuance mittimuses document that, during the relevant time periods, Connecticut authorities required the petitioner’s presence for trial. From these documents, the court reasonably could infer that the petitioner was not then available for trial in Massachusetts. There was no evidence to the contrary.

The nub of the issue, therefore, is the petitioner’s third claim, which alleges that he cannot be held to have been “unable to stand trial” in Massachusetts in the absence of any evidence that he contributed, in any fashion, to the delay in the disposition of the Connecticut sexual assault charge. It is true that, although the record establishes that numerous continuances caused delays in the Connecticut proceedings, it does not indicate whether the petitioner requested, or acquiesced in, the continuances.

The petitioner relies on decisions of the United States Court of Appeals for the Second Circuit that hold that a prisoner’s speedy trial right is tolled only for periods of delay “occasioned by the defendant.” (Internal quotation marks omitted.) United States v. Roy, supra, 771 F.2d 59; United States v. Scheer, 729 F.2d 164, 168 (2d Cir. 1984). These cases are, however, distinguishable. First, they address plenary motions to dismiss an indictment, rather than habeas corpus petitions to quash a detainer. Whether or not the detainer in this case is quashed, Massachusetts will be able, at some future time, to bring the petitioner to trial. See footnote 3. Second, and more important, in each case, the defendant factually was shown to have taken actions that had contributed significantly to the delay in the completion of his trial. These federal cases do not address the proper resolution of a speedy trial claim in the absence of such a factual showing. Further, they do not express any view about which party bears the burden of proving that the delay was “occasioned by the defendant.”

In the circumstances of this case, we are confronted with a record that does not disclose, one way or the other, whether the petitioner was a moving force in the delayed resolution of the sexual assault charge in Connecticut. We must decide, therefore, whether the burden to establish such facts should be assigned to the habeas petitioner or to the respondent. Unless we accept the petitioner’s contention that it was the respondent’s burden to provide information about the provenance of the continuances that brought the petitioner repeatedly to court, he cannot prevail. We conclude that the burden of proof was his.

As we have observed earlier in this opinion, a petitioner who seeks a writ of habeas corpus bears the burden of establishing his entitlement to the writ. See Summerville v. Warden, supra, 229 Conn. 428; Lubesky v. Bronson, supra, 213 Conn. 109-10; Myers v. Manson, supra, 192 Conn. 387. The petitioner asserts, in conclu-sory fashion, that he had no power to control the course of judicial proceedings. Power is not the issue here. The issue is not whether the trial court in the sexual assault case properly granted the continuances that delayed the final resolution of the sexual assault charge. Instead, what the record lacks is an identification of the party that obtained or benefitted from the continuances. The petitioner does not explain why he or his counsel could not have obtained the relevant information by examining the court record in the sexual assault case. The petitioner likewise does not explain why he, or his trial counsel in the sexual assault case, could not have testified in this case about what had transpired at the hearings at which continuances were granted.

We conclude, therefore, that, in the absence of proof of the reasons for the delayed resolution of the petitioner’s Connecticut criminal trial, the court reasonably determined that the petitioner was, in fact and law, unable to stand trial in Massachusetts during the Connecticut sexual assault proceedings. In the circumstances of this case, we concur in the court’s conclusion that the Connecticut criminal proceedings tolled the Massachusetts criminal proceedings.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 54-186 states in relevant part: “The Agreement on Detainers is hereby entered into by this state with all jurisdictions legally joining therein in form substantially as follows: The contracting states solemnly agree that:
      “Article I
      “The party states fmd that charges outstanding against a prisoner, detain-ers based on untried indictments, informations or complaints, and difficulties in securing speedy trial of persons already incarcerated in other jurisdictions, produce uncertainties which obstruct programs of prisoner treatment and rehabilitation. Accordingly, it is the policy of the party states and the purpose of this agreement to encourage the expeditious and orderly disposition of such charges and determination of the proper status of any and all detainers based on untried indictments, informations or complaints. The party states also find that proceedings with reference to such charges and detainers, when emanating from another jurisdiction, cannot properly be had in the absence of cooperative procedures. It is the further purpose of this agreement to provide such cooperative procedures.
      “Article II
      “As used in this agreement: (a) ‘State’ shall mean a state of the United States; the United States of America; a territory or possession of the United States; the District of Columbia; the Commonwealth of Puerto Rico, (b) ‘Sending state' shall mean a state in which a prisoner is incarcerated at the time that he initiates a request for final disposition pursuant to article III hereof or at the time that a request for custody or availability is initiated pursuant to article IV hereof, (c) ‘Receiving state’ shall mean the state in which trial is to be had on an indictment, information or complaint pursuant to article III or article IV hereof.
      “Article III
      “(a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of the imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint; provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner.
      * ;|c *
      “Article IV
      “(c) In respect of any proceeding made possible by this article, trial shall be commenced within one hundred twenty days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.
      “Article V
      “(a) In response to a request made under article III or article IV hereof, the appropriate authority in a sending state shall offer to deliver temporary custody of such prisoner to the appropriate authority in the state where such indictment, information or complaint is pending against such person in order that speedy and efficient prosecution may be had. If the request for final disposition is made by the prisoner, the offer of temporary custody shall accompany the written notice provided for in article III of this agreement. . . .
      * ** *
      “(c) If the appropriate authority shall refuse or fail to accept temporary custody of said person, or in the event that an action on the indictment, information or complaint on the basis of which the detainer has been lodged is not brought to trial within the period provided in article III or article IV hereof, the appropriate court of the jurisdiction where the indictment, information or complaint has been pending shall enter an order dismissing the same with prejudice, and any detainer based thereon shall cease to be of any force or effect.
      * * *
      “Article VI
      “(a) In determining the duration and expiration dates of the time periods provided in articles III and IV of this agreement, the running of said time periods shall be tolled whenever and for as long as the prisoner is unable to stand trial, as determined by the court having jurisdiction of the matter.
      * * *
      “Article IX
      “This agreement shall be liberally construed so as to effectuate its purposes. . .

       In his appellate brief, the respondent advanced a claim of waiver as yet another reason why the petitioner could not prevail. Because this claim had not been raised at trial, the petitioner objected to its consideration. At oral argument in this court, the respondent withdrew the claim of waiver.

       The respondent has not filed a cross appeal to challenge the trial court’s conclusion that, pursuant to Remick v. Lopes, 203 Conn. 494, 498-500, 525 A.2d 502 (1987), the court had jurisdiction to decide the validity of the Massachusetts detainer. Even if the court had quashed the detainer, it would not have been empowered to dismiss the underlying charge, which Massachusetts might have pursued through other means. Id., 498. Because the respondent has challenged the continued authority of Remick v. Lopes, we note that it was followed in Johnson v. Warden, 218 Conn. 791, 794, 591 A.2d 407 (1991).

         The petitioner was informed, on September 13, 1996, of the pending sexual assault charge in Connecticut and of his right to a speedy trial thereon. He refused to sign a formal request for such action to be taken. Although he did file such a request on May 22, 1997, he withdrew that request five days later. By May, 1997, the 180 day speedy trial period in Massachusetts, unless tolled, had expired.

       This request was a timely effort to gain temporary custody within the 180 day speedy trial provision of the IAD that the petitioner had invoked.

       The petitioner maintains that the second Massachusetts request was not sent, as the trial court found, on October 15,1997. He claims that the request was not filed until December of that year. This difference has no significance in the present circumstances. If the 180 day period was not tolled, a request on either date would have been untimely.

       We will address the petitioner’s argument with respect to two of the court’s factual findings in our analysis of tolling. See part IIA of this opinion. The result we reach there, namely, that the relevant state authorities acted properly, obviates the need to consider the merits of the petitioner’s claim that the trial court improperly imposed on him the burden of proof of official dereliction.

       We recognize that a decision against the petitioner on either ground would require affirmance of the judgment. Because both of the petitioner’s arguments have been fully briefed and because their resolution may give appropriate guidance in future habeas cases, we address them both.

       “Because the IAD is an interstate compact that the federal Congress has sanctioned, we must interpret its provisions in accordance with federal law. Carchman v. Nash, 473 U.S. 716, 719, 105 S. Ct. 3401, 87 L. Ed. 2d 516 (1985); Cuyler v. Adams, 449 U.S. 433, 438, 442, 101 S. Ct. 703, 66 L. Ed. 2d 641 (1981); State v. Braswell, [194 Conn. 297, 304, 481 A.2d 413 (1984), cert. denied, 469 U.S. 1112, 105 S. Ct. 793, 83 L. Ed. 2d 786 (1985)]. In searching for the applicable federal law, we may, however, look to relevant decisions in both federal and state courts. State v. Braswell, supra [304].” State v. Herring, supra, 210 Conn. 85.

       The respondent also cites Reed v. Farley, 512 U.S. 339, 347, 114 S. Ct. 2291, 129 L. Ed. 2d 277 (1994). That case is distinguishable, however, because it rests on jurisdictional limitations that govern federal habeas corpus proceedings. The petitioner correctly points out that state habeas corpus proceedings may provide relief that is not available in federal court. See Lozada v. Warden, 223 Conn. 834, 840-42, 613 A.2d 818 (1992).

       “The four factors that form the matrix of a Barker v. Wingo analysis are: the length of the delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” State v. Herring, supra, 210 Conn. 89-90.

       The petitioner does not challenge the validity of Connecticut’s refusal to transfer him temporarily to Massachusetts because of the present habeas corpus proceedings.

       Milling’s position authorized her to act on behalf of the commissioner of correction in carrying out the mandates of the 1AJD.

       Only Milling testified at the habeas hearing.

       The petitioner acknowledges that, if he had simultaneously sought speedy trials both in Connecticut and Massachusetts, he would not be protected by the IAD.

       In light of this documentary evidence, we need not decide which party bore the burden of proof on this issue. If the burden fell on the respondent, he satisfied it; if the burden fell on the petitioner, he did not satisfy it.

       The respondent cites other cases in which courts have held that the right to a speedy trial under the IAD is automatically tolled by a showing that a prisoner is being tried elsewhere in other charges. See, e.g. United States v. Roy, 830 F.2d 628, 637 (7th Cir.), cert. denied, 484 U.S. 1068, 108 S. Ct. 1033, 98 L. Ed. 2d 997 (1987). We need not decide whether to adopt this broader principle because the petitioner cannot prevail even under the Second Circuit’s narrower standard.


author: PER CURIAM.

text:
    FRANCES D. SIVEK v. JANE BALJEVIC
    (AC 19298)
    Schaller, Spear and Pellegrino, Js.
    Argued May 8
    officially released September 19, 2000

      Norman A. Pattis, with whom, on the brief, was John R. Williams, for the appellant (plaintiff).

      Warren L. Holcomb, for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, Frances D. Sivek, appeals from the summary judgment rendered in favor of the defendant, Jane Baljevic. The plaintiff, at the relevant times, was a teacher in the Milford public schools and the defendant was the school principal. The plaintiff brought an action against the defendant claiming that the defendant’s actions in meeting with her and, thereafter, in placing a memorandum in the defendant’s personal file constituted punishment of her for exercising her first amendment rights to free speech and inflicted severe emotional distress on her. The parents of one of the plaintiffs students had complained to the defendant that the plaintiff had made an allegedly racist comment in class. This complaint precipitated the meeting with the defendant and the subsequent memorandum.

Our examination of the record and briefs and our consideration of the arguments of the parties persuades us that the judgment of the trial court should be affirmed. The issues presented were resolved properly in the trial court’s thoughtful and comprehensive memorandum of decision. See Sivek v. Baljevic, 46 Conn. Sup. 518, 758 A.2d 473 (1999). Because that memorandum of decision fully addresses the arguments raised in this appeal, we adopt it as a proper statement of the facts and the applicable law on those issues. It would serve no useful purpose for us to repeat the discussion contained therein. East v. Labbe, 54 Conn. App. 479, 480-81, 735 A.2d 370 (1999), aff'd, 252 Conn. 359, 746 A.2d 751 (2000).

The judgment is affirmed.