text:
    STATE OF CONNECTICUT v. CHARLES HARRIS, JR.
    (AC 17046)
    O’Connell, C. J., and Schaller and Hennessy, Js.

      Argued January 12
    officially released June 23, 1998

      Avery S. Chapman, for the appellant (defendant).

      John A. East III, assistant state’s attorney, with whom, on the brief, were Mary M. Galvin, state’s attorney, Gerard F. Esposito, senior assistant state’s attorney, and Holly A. Trexler, legal intern, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of aiding and abetting manslaughter in the first degree in violation of General Statutes §§ 53a-8 (a) and 53a-55 (a) (1). On appeal, the defendant claims that the trial court improperly (1) instructed the jury on the charge of aiding and abetting manslaughter, (2) denied the defendant’s motion for acquittal and motion in arrest of judgment, (3) excluded evidence that would have impeached the credibility of a state’s witness and (4) denied the defendant’s motion to dismiss for failure to comply with the speedy trial provision of the interstate agreement on detainers. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant was a leader of a gang that engaged in illegal drug trafficking in a public housing project on Olson Drive in Ansonia. The victim, Timothy Hopkins, began selling drugs in this housing project in June, 1994, in direct competition with the defendant’s gang. The defendant decided to scare the victim away from his territory by having a fellow gang member shoot the victim in the buttocks. On June 28, 1994, the defendant ordered one gang member, Damon Spencer, to carry out the threat and handed him a .357 magnum pistol. Spencer refused to comply with the defendant’s order because criminal charges were already pending against him in another matter. The defendant then ordered another gang member, Terrón Lopes, to carry out the threat and handed him the same gun. Lopes was hesitant to comply with the order, but eventually relented after he was threatened and coerced by the defendant.

The defendant, Spencer and Lopes then went looking for the victim in the housing project. When they located the victim in the stairwell of one of the buildings, the defendant encouraged Lopes to shoot the victim. After Lopes shot the victim twice, the defendant ordered Lopes to discard the gun and flee from the scene. Later, the defendant assisted Lopes in washing gunpowder residue from his hands in a nearby apartment. The defendant also congratulated Lopes and gave him approximately $100 as a reward.

The victim was still alive when he was transported by emergency medical personnel to nearby Griffin Hospital, where he was later pronounced dead. An autopsy revealed that the victim was shot by two bullets, which caused five separate wounds. The fatal bullet perforated a number of major blood vessels in the lower abdominal and upper leg areas, that resulted in massive blood loss, which caused the victim’s death. This bullet was later retrieved from the victim’s body, and ballistic tests revealed that it was fired from the same .357 magnum pistol that was recovered by police in the housing project. The gun contained the fingerprints of both Lopes and Spencer.

On the day following the shooting, the police questioned Lopes about the incident and showed him the gun. Lopes denied any knowledge of either the incident or the gun. After the defendant became a suspect in the incident, he began to pressure Lopes into accepting full responsibility for the shooting. On July 1, 1994, Lopes surrendered to the police and took sole responsibility for the shooting. Lopes was then charged with murder. On April 6, 1995, Lopes gave a statement to an inspector from the office of the state’s attorney that inculpated the defendant in the shooting. Lopes stated that the defendant had coerced him into shooting the victim and taking sole responsibility for the shooting. Lopes also stated that he feared for both his safety and that of his family if he were to testify against the defendant. On June 6, 1995, Lopes pleaded guilty to a charge of manslaughter in the first degree. On August 11, 1995, Lopes was sentenced to a term of imprisonment of nineteen years.

On June 29,1994, the police arrested Spencer in connection with the shooting. Spencer gave a statement when he was arrested that inculpated the defendant as the person who solicited both Lopes and him to shoot the victim. On July 8, 1994, Spencer gave the police another statement in which he again inculpated the defendant as the mastermind behind the shooting. In his second statement, Spencer stated that both he and Lopes feared the defendant, and that this fear caused Lopes to protect the defendant in his dealings with the police. On December 11,1995, Spencer pleaded guilty to the charges of assault in the first degree as an accessory, conspiracy to commit assault in the first degree, tampering with evidence and failure to appear. On January 26, 1996, he was sentenced to a term of imprisonment of ten years.

The defendant was charged on May 10, 1996, with conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a (a), and murder as an accessory in violation of General Statutes §§ 53a-8 (a) and 53a-54a (a). After an eight day jury trial, the defendant was found not guilty of conspiracy to commit murder and murder as an accessory, but was found guilty of the lesser included offense of manslaughter in the first degree as an accessory in violation of §§ 53a-8 and 53a-55 (a) (1).

I

The defendant first claims that the trial court improperly instructed the jury on the charge of aiding and abetting manslaughter. In support of this claim, he makes two assertions. First, he claims that there is no such crime in Connecticut as being an accessory to manslaughter and that it was improper to instruct the jury accordingly. Second, he claims that because the amended information by which he was charged did not contain the charge of aiding and abetting manslaughter, he did not receive proper notice of the charges he was facing in violation of his rights to due process of law and to a fair trial. We are not persuaded by either claim.

A

The defendant claims that the crime of aiding and abetting manslaughter in the first degree does not exist in Connecticut because a person cannot aid and abet unintentional conduct. In support of this position, the defendant asserts that manslaughter in the first degree is an unintentional killing. This claim is without merit.

As a preliminary note, the defendant was convicted of violating §§ 53U-8 and 53a-55 (a) (l). Our Supreme Court has repeatedly held that a conviction under § 53a-8 requires proof of a dual intent, i.e., “that the accessory have the intent to aid the principal and that in so aiding he intend to commit the offense with which he is charged.” (Emphasis in original.) State v. Harrison, 178 Conn. 689, 694, 425 A.2d 111 (1979); see State v. Foster, 202 Conn. 520, 525-26, 522 A.2d 277 (1987); State v. Crump, 201 Conn. 489, 495, 518 A.2d 378 (1986); State v. Fleming, 198 Conn. 255, 271, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986); State v. Nardini, 187 Conn. 513, 531, 447 A.2d 396 (1982).

It should be noted that § 53a-8 does not provide for a separate, substantive offense for being an accessory, but rather the statute provides an alternate means by which the underlying substantive crime may be committed. State v. Edwards, 201 Conn. 125, 130-31, 513 A.2d 669 (1986); State v. Harris, 198 Conn. 158, 163, 502 A.2d 880 (1985); State v. Baker, 195 Conn. 598, 608, 489 A.2d 1041 (1985). Thus, a defendant may be convicted of manslaughter in the first degree on the basis of his status as an accessory to the crime.

To support his claim that the crime of being an accessory to manslaughter in the first degree is not a cognizable crime in Connecticut, the defendant points to the dual intent requirement of § 53a-8 and cites cases that support the proposition that it is a logical impossibility either to conspire or to attempt to achieve an unintentional or reckless result. See State v. Beccia, 199 Conn. 1, 4, 505 A.2d 683 (1986) (conspiracy to commit arson in third degree not cognizable because arson requires reckless mental state); State v. Almeda, 189 Conn. 303, 309, 455 A.2d 1326 (1983) (attempted manslaughter not cognizable because not possible to have specific intent to commit unintentional killing). The defendant’s reliance on these cases is misplaced.

The specific claim that the defendant raises here has been previously addressed and refuted by our Supreme Court in State v. Foster, supra, 202 Conn. 533. The Foster court specifically addressed the arguments based on the Beccia, and Almeda decisions, and concluded that accessorial liability is distinguishable from both conspiracy and attempt liability. The court held that accessorial liability is cognizable for criminally negligent homicide, provided the defendant possesses “the requisite culpable mental state for the commission of the substantive offense, and he intentionally aids another in the crime.” Id. “If a person, in intentionally aiding another, acts with the mental culpability required for the commission of a crime—be it ‘intentional’ or ‘criminally negligent’—he is liable for the commission of that crime.” Id., 532.

Thus, because the defendant in this case was charged under § 53a-55 (a) (1), which requires the intent to cause serious physical injury that results in the victim’s death, the only requirement to being found guilty of manslaughter in the first degree as an accessory is that the defendant must intend both to assist the shooter and to cause serious physical injury to the victim. Accordingly, the defendant’s claim that he cannot be found guilty of being an accessory to manslaughter because he did not intend to kill the victim and because the victim’s death was an unintentional result is without merit. The only intent necessary under § 53a-55 (a) (1) is the intent to cause serious physical injury. As will be discussed in part II of this opinion, there was sufficient evidence presented at trial to allow the jury to conclude that the defendant intended to cause serious physical injury to the victim. It is irrelevant under § 53a-55 (a) (1) that the victim’s death was an unintentional result.

In addition, we note that this is not the first case in which a defendant has been charged as an accessory to manslaughter in the first degree. The defendants in the following cases were all found guilty of manslaughter in the first degree on the basis of their being accessories under § § 53a-8 and 53a-55: State v. Dyson, 217 Conn. 498, 586 A.2d 610 (1991); State v. Faulkner, 48 Conn. App. 275, 709 A.2d 36 (1998); State v. Billie, 47 Conn. App. 678, 707 A.2d 324, cert. granted, 244 Conn. 933, 717 A.2d 231 (1998); State v. Huckabee, 41 Conn. App. 565, 677 A.2d 452, cert. denied, 239 Conn. 903, 682 A.2d 1009 (1996); State v. Bagley, 35 Conn. App. 138, 644 A.2d 386, cert. denied, 231 Conn. 913, 648 A.2d 157 (1994); State v. Gamble, 27 Conn. App. 1, 604 A.2d 366, cert. denied, 222 Conn. 901, 606 A.2d 1329 (1992); State v. Spears, 20 Conn. App. 410, 567 A.2d 1245 (1989). These cases support the basic proposition that criminal liability as an accessory to manslaughter in the first degree is not a novel charge and, in fact, has long been recognized under Connecticut jurisprudence. As a result, the defendant’s claim that this specific crime is not cognizable in Connecticut must fail.

B

The defendant also contends that it was improper for the trial court to instruct the jury on the crime of manslaughter in the first degree as an accessory because this charge was not contained in the information and, as a result, he was not properly notified of the charges against him in violation of his constitutional rights to due process and to a fair trial.

The defendant was charged in the information with conspiracy to commit murder and murder as an accessory. The state requested a jury instruction on the lesser included offense of manslaughter in the first degree as an accessory. The defendant objected, but the trial court decided that it would instruct the jury on this lesser included offense. The jury found the defendant not guilty of the conspiracy to commit murder and murder as an accessory charges, but found the defendant guilty of the lesser included offense of manslaughter as an accessory.

As a general matter, “[i]t is a well-settled principle of constitutional law that where one or more offenses are lesser than and included within the one charged, notice of the one charged constitutes notice of any lesser included offenses.” State v. Rodriguez, 180 Conn. 382, 402, 429 A.2d 919 (1980).

In addition, our Supreme Court has specifically held in several cases that a defendant may be found guilty as an accessory pursuant to § 53a-8, despite the failure to be so charged in the information. See State v. Williams, 220 Conn. 385, 388-90, 599 A.2d 1053 (1991); State v. Crump, supra, 201 Conn. 493; State v. Johns, 184 Conn. 369, 373-74 n.7, 439 A.2d 1049 (1981); State v. Ferrara, 176 Conn. 508, 513 n.2, 408 A.2d 265 (1979); State v. Ives, 172 Conn. 322, 323, 374 A.2d 244 (1977).

The defendant claims that in formulating his defense, he relied on Beccia and Almeda, and therefore believed it a logical impossibility to be charged as an accessory to manslaughter in the first degree. We addressed the inapplicability of those cases to the defendant’s situation in part I A, and, therefore, this assertion is without merit.

The defendant further argues that he could not have been charged as an accessory to manslaughter because under State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980), it was not possible to commit the greater offense in the manner described in the information without having first committed the lesser offense. In support of this argument, the defendant claims that there was insufficient evidence presented to support his conviction as an accessory to manslaughter in the first degree because he did not intend to kill the victim, but sought only to inflict harm upon him. As we stated previously, the requisite intent under § 53a-55 (a) (1) is the intent to cause serious physical injury. The defendant’s assertion, therefore, that he did not intend to kill the victim is irrelevant because the state did not have to prove intent to kill. For these reasons, we conclude that the defendant’s constitutional rights to due process and to a fair trial were not violated.

II

The defendant next claims that there was insufficient evidence presented at trial to convict him of manslaughter as an accessory and, therefore, the trial court improperly denied his motion for judgment of acquittal and motion in arrest of judgment. We disagree.

“ ‘When reviewing a sufficiency of the evidence claim, we first examine the evidence in the light most favorable to upholding the jury’s verdict. State v. Avis, 209 Conn. 290, 309, 551 A.2d 26 (1988), cert. denied, 489 U.S. 1097, 109 S. Ct. 1570, 103 L. Ed. 2d 937 (1989); State v. Rice, 25 Conn. App. 646, 650, 595 A.2d 947 (1991). We then determine on the basis of the facts established and the inferences that reasonably could be drawn from those facts whether the jury reasonably could have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt. State v. Famiglietti, 219 Conn. 605, 609, 595 A.2d 306 (1991); State v. Hopes, 26 Conn. App. 367, 376, 602 A.2d 23, cert. denied, 221 Conn. 915, 603 A.2d 405 (1992). We note that the probative force of the evidence is not diminished because it consists, in whole or in part, of circumstantial evidence rather than direct evidence. State v. Robinson, 213 Conn. 243, 254, 567 A.2d 1173 (1989).’ State v. Lago, 28 Conn. App. 9, 30, 611 A.2d 866, cert. denied, 223 Conn. 919, 614 A.2d 828 (1992). Our inquiry into whether the evidence in the record would support a finding of guilt beyond a reasonable doubt does not require us to ask if we believe that the evidence established guilt beyond a reasonable doubt, but rather if 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ . . . State v. Boykin, 27 Conn. App. 558, 563-64, 609 A.2d 242, cert. denied, 223 Conn. 905, 610 A.2d 179 (1992). Once a defendant has been found guilty of the crime charged, we conduct our judicial review of all of the evidence in the light most favorable to the prosecution. Id., 564.” (Emphasis in original.) State v. Hamilton, 30 Conn. App. 68, 71-72, 618 A.2d 1372 (1993), aff'd, 228 Conn. 234, 636 A.2d 760 (1994).

The following evidence presented at trial supports the jury’s verdict. The defendant was a leader of a gang that engaged in narcotics trafficking in an Ansonia public housing project. The victim had begun selling narcotics in direct competition with the defendant’s gang shortly before his death. The defendant had conferred with other gang members about the victim’s presence, and they had decided that it was necessary to scare him away from their territory. The defendant commanded one gang member, Spencer, to shoot the victim in the buttocks. When Spencer refused to follow this order, the defendant ordered another gang member, Lopes, to do the shooting. The defendant handed the gun that killed the victim to Lopes and assisted Lopes in locating the victim within the Ansonia housing project. The defendant was present at the scene of the shooting, and afterward ordered Lopes to discard the gun and flee from the scene. The defendant assisted Lopes in washing gunpowder residue from his hands after the shooting. The defendant congratulated Lopes after completing the shooting and rewarded him with approximately $100. During the police investigation of the shooting, the defendant pressured both Spencer and Lopes into accepting full responsibility for the shooting, and to exculpate the defendant. On the basis of the foregoing facts, we conclude that there was sufficient evidence presented from which the jury could conclude that the defendant was guilty as an accessory to committing manslaughter in the first degree.

The defendant also claims that there was insufficient evidence to prove his guilt of manslaughter in the first degree because the state failed to prove that he intended to kill the victim. We have already stated that the state was not required to prove intent to kill under § 53a-55 (a) (1), but rather, only the intent to cause serious physical injury. The jury reasonably could have inferred that the defendant intended to cause serious physical injury to the victim because evidence was presented that he wanted to scare the victim off of his drug territory by shooting him in the buttocks. “Serious physical injury” has been defined to include injury that “creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of a bodily organ.” (Internal quotation marks omitted.) State v. Allen, 28 Conn. App. 81, 89, 611 A.2d 886, cert. denied, 223 Conn. 920, 614 A.2d 826 (1992). There can be no dispute that shooting someone in the buttocks with a .357 magnum pistol easily satisfies the definition of “serious physical injury.” Therefore, the defendant’s insufficiency claim is without merit.

III

The defendant next claims that the trial court improperly excluded evidence regarding a prior inconsistent statement allegedly made by a state’s witness. Specifically, he claims that it was improper to exclude an unsigned police investigation report that he sought to introduce to impeach the credibility of police detective Sergeant Floyd Morey, Jr. We are unpersuaded.

The following additional facts are necessary for proper resolution of this claim. At trial, the defendant’s theory of the case was that Lopes had acted alone when he shot the victim and that the defendant had not been involved in any way in the shooting. The impact of the prior statements of both Lopes and Spencer inculpating the defendant, therefore, had to be minimized by the defendant. The defendant attempted to diminish the impact of those statements by introducing evidence to illustrate that they were given to the police by Lopes and Spencer in exchange for promises of favorable treatment. During the state’s case-in-chief, Morey and officers Brian McLean, James Thomas, Edward Bednarz and Eric Smith of the Ansonia police department testified regarding the circumstances surrounding Lopes’ and Spencer’s statements. They all testified that no promises, threats or inducements were made when Spencer gave his statement. Morey was specifically asked whether any plea bargain or promise was made to Spencer in exchange for information that would inculpate the defendant. Morey responded in the negative and stated that he was not in a position to make such inducements.

On cross-examination, Morey was asked by defense counsel whether he had offered anything to anybody in connection with this case. The state objected to this question on relevancy grounds, and the trial court sustained the objection. Pursuing this point, defense counsel attempted to introduce an unsigned page from a police investigation report that appeared to contradict Morey’s testimony that no inducements were offered to witnesses in exchange for information on this case. The proffered page contained information regarding a police interview with Frederick Moore, a member of the defendant’s gang, concerning this case. The report page listed Morey and another detective as the investigating officers. There was an entry on the report page that stated the following: “Info good—valuable. Fred Moore will get info for us, bond reduced to do this.” The state objected to the introduction of this report on hearsay grounds, and the trial court sustained the objection.

During presentation of the defense case, Morey was called again to testify. The defendant made numerous attempts to probe into Morey’s involvement with Moore on this case. The state objected to each of these questions, and each objection was sustained. Morey testified that he was unsure who had prepared the investigation report or who had typed it. When Moore was called to the stand, he testified consistently with the investigation report, stating that Morey had promised him a reduction in his bond in exchange for information on this case. The defendant now claims that the trial court improperly excluded the introduction of the investigation report page as a full exhibit for purposes of impeaching Morey’s credibility.

The defendant’s claim concerns the trial court’s evidentiary ruling and will, therefore, “ ‘be overturned only 2upon a showing of a clear abuse of the court’s discretion.’ ” State v. Bruno, 236 Conn. 514, 549, 673 A.2d 1117 (1996). “The trial court also has broad discretion in balancing the probative value of proffered evidence against its prejudicial effect. That discretion is subject to reversal only where an abuse of discretion is manifest or where an injustice appears to have been done.” (Internal quotation marks omitted.) State v. Weber, 31 Conn. App. 58, 65, 623 A.2d 506, cert. denied, 226 Conn. 908, 625 A.2d 1379 (1993).

“It is fundamental that for the purpose of impeaching the credibility of his testimony, a witness may be cross-examined as to statements made out of court or in other proceedings which contradict those made upon direct examination. State v. Saia, 172 Conn. 37, 45, 372 A.2d 144 (1976) . . . see also G & R Tire Distributors, Inc. v. Allstate Ins. Co., 177 Conn. 58, 60-61, 411 A.2d 31 (1979). . . . Where a party seeks to impeach a witness by using extrinsic evidence, certain standards must be met. The inconsistent statement must be relevant and of such a kind as would affect the witness’ credibility, and, generally, a foundation for introducing the statement should be laid at the time of cross-examination of the witness. State v. Saia, supra, 45-46 .... From early times, it has consistently been held that it rests within the judicial discretion of the trial court whether to admit the impeaching statements where no foundation has been laid. . . . The trial court is vested with a liberal discretion as to how the inquiry should be conducted in any given case.” (Citations omitted; internal quotation marks omitted.) State v. Butler, 207 Conn. 619, 625-26, 543 A.2d 270 (1988).

In this case, the statement sought to be introduced by the defendant was relevant and could have affected Morey’s credibility. The crucial element lacking in this case, however, was a proper foundation for the written investigation report. Morey testified that he did not prepare the specific page of the investigation report and was unsure who had typed it. Morey’s signature did not appear on the page of the investigation report. We conclude, therefore, that the defendant failed to lay a proper foundation to enable the statement to be admitted because there was no evidence that tended to connect Morey to the statement. The fact that Morey was involved in the investigation and was present during the interview with Moore is insufficient to connect him with the statement. The facts of this case do not present sufficient indicia of reliability that the statement was in fact made or recorded by Morey to justify its admission. In short, the defendant failed to establish that the statement was, in fact, a prior statement made by Morey. We conclude, therefore, that the trial court did not abuse its discretion in refusing to allow the statement to be admitted as a full exhibit for purposes of impeaching Morey’s credibility.

Additionally, any potential prejudice that the trial court’s ruling may have caused the defendant was obviated by Moore’s later testimony. The defendant called Moore as a witness during the presentation of his case, and he testified to the matters for which the defendant sought admission of the prior inconsistent statement. Specifically, Moore testified that it was his understanding that his bond would be reduced by the police in exchange for the information he was providing in this case. The jury heard that testimony, which contradicted Morey’s testimony. Therefore, Morey’s credibility was indirectly impeached. As a result, there was no prejudice to the defendant arising from the trial court’s exclusion of the police report page.

IV

The defendant finally claims that the trial court improperly denied his motion to dismiss for failure to comply with the speedy trial provision of the interstate agreement on detainers. We disagree.

The following additional facts are necessary for proper resolution of this claim. Prior to trial in this case, the defendant was incarcerated in the state of North Carolina, apparently for crimes committed in that jurisdiction. He availed himself of the interstate agreement on detainers; General Statutes § 54-186 et seq.; to be brought to Connecticut from North Carolina to face the charges pending against him. Pursuant to § 54-186, the defendant made an offer of temporary custody to the office of the state’s attorney. The state’s attorney received the offer on February 26, 1996.

On July 12, 1996, the defendant appeared before the trial court accompanied by his counsel, special public defender Avery S. Chapman. At that appearance, the defendant requested a continuance to enable him to retain private counsel. The trial court granted the request for continuance until July 30, 1996. The defendant also requested continuances on July 30 and August 13, 1996, to retain private counsel. The trial court granted both requests, and the case was continued until September 17, 1996. All three of these requests were initiated by the defendant, and on each occasion he agreed that all time delays involved would be charged against himself and not the state for purposes of the speedy trial provision of the interstate agreement on detainers.

On September 17, 1996, Chapman and the assistant state’s attorney, Gerard Esposito, appeared before the trial court. Due to an apparent administrative error, the defendant had been transported to Bridgeport instead of Milford. Esposito requested a seven day continuance until September 24, 1996, but Chapman requested that it be extended until October 1, 1996. The state agreed, provided that the time would not be charged against the state for speedy trial purposes. Chapman agreed.

Chapman and Esposito appeared before the trial court on October 1, 1996, but the defendant was not present in court due to another administrative error that was related to the transmission of the mittimus that would have brought him before the trial court. At that time, both parties agreed to a firm trial date of November 5, 1996. Both Chapman and Esposito agreed that this would be within the 180 day speedy trial provision of article III (a) of § 54-186.

On November 5, 1996, Esposito and the defendant appeared before the trial court, but Chapman was not present. Chapman had advised both Esposito and the trial court that he was unavailable because he was trying another matter in Danbury. The trial court advised the defendant that both the court and the state were ready to proceed with the trial. The defendant then made an oral motion to dismiss the case for failure to comply with the speedy trial provision of § 54-186. The trial court denied this motion in open court. On November 13, 1996, Chapman filed a written motion to dismiss on speedy trial grounds under § 54-186. The trial court issued its memorandum of decision denying the defendant’s motion to dismiss on November 20, 1996. On November 21, 1996, jury selection began, and on November 27, 1996, the presentation of evidence commenced in this matter.

At the outset, it is important to summarize the calculus of the number of days that elapsed between the time the defendant made himself available for trial under § 54-186 and when his trial actually commenced, taking into account all continuances and other delays chargeable against the defendant. Both the defendant and the state agree that the defendant’s request for disposition of the information in this case was received by the office of the state’s attorney and the court on February 26, 1996. This is the beginning of the 180 day period under article III (a) of § 54-186. See State v. Braswell, 194 Conn. 297, 302-303, 481 A.2d 413 (1984), cert. denied, 469 U.S. 1112, 105 S. Ct. 793, 83 L. Ed. 2d 786 (1985) (180 day period under interstate agreement on detainers is triggered from date request received by prosecuting authority, not date prisoner caused it to be sent). The defendant requested the first of several continuances to obtain private counsel on July 12,1996. There were 137 days that had elapsed between February 26, 1996, and July 12, 1996.

The defendant then requested two other continuances that resulted in the case being continued until September 17, 1996. This period of time is exempt from the calculation of the 180 day period because the continuances were requested by the defendant, and he agreed on each occasion that the time period would not be charged against the state for purposes of satisfaction of the 180 day period. Thus, at that point, the defendant had to be brought to trial within forty-three days of September 17, 1996, since 137 days had elapsed previously. This would mean that trial would have to commence on or before October 29, 1996.

On September 17 and October 1, 1996, both the state and the trial court were ready to proceed with trial, but the defendant did not appear in court due to administrative errors that prevented him from being transported to the trial court at Milford. The defendant claims that these delays due to the state’s failure to transport him to the trial court at Milford should not be charged against him for purposes of speedy trial determination. We disagree.

Our Supreme Court has held that delays due to administrative oversight do not violate a defendant’s right to a speedy trial. See State v. Herring, 210 Conn. 78, 82-90, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989) (defendant’s subjection to six month delay due to clerical inattention insufficient reason to dismiss charges because that was neutral reason not weighing heavily against state); State v. Davis, 192 Conn. 739, 740-46, 474 A.2d 776 (1984) (defendant’s being subject to twenty-six month delay due to shortage of judges not violative of right to speedy trial). If delays of six and twenty-six months caused by administrative oversight have been held not to violate a defendant’s speedy trial right, we cannot say that a delay of approximately fourteen days in this case violated the defendant’s speedy trial right.

The period from September 17 through October 1, 1996, therefore, cannot be charged against the state and must be excluded from the speedy trial calculus. Accordingly, the defendant had to be brought to trial within forty-three days of October 1, 1996, meaning on or before November 13, 1996. Trial in this matter commenced on November 13,1996, when the defendant filed his motion to dismiss on the day that both the state and the trial court were ready to proceed with trial. See United States v. Dawn, 900 F.2d 1132, 1136 (7th Cir.), cert. denied, 498 U.S. 949, 111 S. Ct. 368, 112 L. Ed. 2d 330 (1990) (filing motion to dismiss tolls statutory time period for speedy trial under interstate agreement on detainers). The defendant’s right to a speedy trial under § 54-186, article III (a), therefore, was not violated.

As further support for its ruling, the trial court concluded that by agreeing to a firm trial date of November 5, 1996, on October 1, 1996, the defendant waived any right to make a speedy trial claim based on events that had transpired up to that point. The defendant thus waived any claim that the delay caused by the state’s failure to transport him properly to the trial court at Milford should not be charged against him. After a review of the law, we agree with the trial court. See, e.g., United States v. Lawson, 736 F.2d 835, 837-39 (2d Cir. 1984) (waiver of right to speedy trial under interstate agreement on detainers evaluated under non-constitutional standard and need not be knowing and intelligent, but merely voluntary); Brown v. Wolff, 706 F.2d 902, 907 (9th Cir. 1983) (defendant may waive right to speedy trial claim if by agreeing to trial date beyond 180 day period); People v. Reid, 164 Misc. 2d 1032, 1035-36, 627 N.Y.S.2d 234 (1995) (defense counsel’s agreement to trial date beyond 180 day period constituted abandonment or waiver of defendant’s rights under interstate agreement on detainers).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-8 (a) provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

       General Statutes § 53a-55 (a) provides in relevant part: “A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical iqjury to another person, he causes the death of such person or of a third person . . .

       Article III (a) of General Statutes § 54-186 provides in relevant part: “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. . .

       In addition, federal courts of appeals have held similarly. See Flowers v. Warden, 853 F.2d 131, 132-34 (2d Cir.), cert. denied, 488 U.S. 995, 109 S. Ct. 563, 102 L. Ed. 2d 588 (1988); United States v. McGrath, 622 F.2d 36, 41 (2d Cir. 1980); United States v. Avalos, 541 F.2d 1100, 1111-12 (5th Cir. 1976), cert. denied, 430 U.S. 970, 97 S. Ct. 1656, 52 L. Ed. 2d 363 (1977).


source: Caselaw Access Project

author: SPEAR, J.

license: Public Domain

text:
    CONNECTICUT HOUSING FINANCE AUTHORITY v. JOHN FITCH COURT ASSOCIATES LIMITED PARTNERSHIP ET AL.
    (AC 17299)
    O’Connell, C. J., and Foti and Spear, Js.
    Argued January 16
    officially released June 23, 1998

      Mark S. Baldwin, for the appellants (defendants).

      James J. Tancredi, with whom was Robert J. O’Hara, for the appellee (plaintiff).
   Opinion

SPEAR, J.

The plaintiff, Connecticut Housing Finance Authority (CHFA), commenced mortgage foreclosure proceedings against the defendants, John Fitch Court Associates Limited Partnership (Fitch) and Carr Property Management, Inc. (Carr Management). The subject commercial property, located in Windsor, secured a promissory note in the amount of $1,985,600. CHFA sought foreclosure based on several alleged defaults by Fitch under the terms of the note and the mortgage deed.

The defendants appeal from the summaiy judgment that was rendered in favor of the plaintiff on the complaint and on the defendants’ counterclaim. They assert that summaiy judgment was improper because (1) Carr Management was a third party beneficiary of the note and the mortgage deed between Fitch and CHFA, and was therefore entitled to pursue a counterclaim against CHFA, (2) the counterclaim for wrongful acceleration was legally sufficient and was supported by evidence that raised genuine issues of material fact, and (3) Fitch’s special defense that alleged breach of the implied covenant of good faith and fair dealing was valid and was also supported by evidence that raised genuine issues of material fact. We affirm the judgment of the trial court.

The record reveals the following relevant facts and procedural history. To secure a promissory note in the amount of $1,985,600, Fitch, the record owner of the subject property, executed and delivered a mortgage deed, dated January 22, 1988, in favor of CHFA with respect to all of Fitch’s rights in the property. Fitch also executed a declaration and agreement of restrictive covenants in favor of CHFA on the same date in which Fitch agreed to be “regulated and restricted” by CHFA as “provided by the mortgage loan documents.”

When Fitch subsequently defaulted under the terms of the note and the mortgage deed, CHFA exercised its option to declare the entire balance on the note due and payable. By letter dated February 24, 1993, CHFA informed Fitch that Fitch had ten days from the date of the letter to cure the listed defaults or CHFA would pursue its available legal remedies. Fitch countered by letter dated March 8, 1993, in which it disputed the claimed monetary defaults because the thirty day grace period, as provided for by the terms of the note and the mortgage deed, had not yet expired as to the February 1, 1993 payment. Fitch claimed that it would not be in default as to the February 1, 1993 payment until March 2, 1993. CHFA responded by letter dated March 11, 1993, which stated that as to the monetary defaults that were still unpaid, the thirty day grace period had expired and, if the February payments were made immediately, CHFA would allow Fitch until March 25, 1993, to cure the nonmonetary defaults.

CHFA commenced foreclosure proceedings in May, 1993. In July, 1993, CHFA and Fitch entered into a lockbox agreement, whereby all rents and moneys received from the property would be paid into an account for CHFA’s benefit. In the agreement, Fitch confirmed that it was in default under the terms of the mortgage deed. During a deposition on March 8, 1994, Fitch’s general partner, Christopher Carr, testified that Fitch was in default for, inter alia, failure to make timely payments as they became due under the note. Fitch subsequently failed either to make payments or to effect a cure of the alleged defaults. The trial court granted CHFA’s motion for summary judgment as to the complaint and the counterclaim, and this appeal followed.

Preliminarily, we note that “[o]ur standard of review of atrial court’s decision to grant a motion for summary judgment is well established. Practice Book § 384 [now Practice Book (1998 Rev.) § 17-49] provides that summary judgment ‘shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ ” Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 402, 528 A.2d 805 (1987). Further, “the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. ... To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. ... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent.” (Citations omitted; internal quotation marks omitted.) D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980). Moreover, if the evidence presented by the moving party is sufficient to establish that judgment is warranted as a matter of law, it is not rebutted by the bald statement that an issue of fact does exist. Hammer v. Lumberman’s Mutual Casualty Co., 214 Conn. 573, 579, 573 A.2d 699 (1990).

I

The defendants first claim that summary judgment on the counterclaim was improper as to Carr Management because a genuine issue of material fact existed as to whether Carr Management was an intended third party beneficiary of the note and the mortgage deed between Fitch and CHFA. We are unpersuaded.

Whether a party is a third party beneficiary of a contract is a question of the intent of the contracting parties. “Although ordinarily the question of contractual intent presents a question of fact for the ultimate fact finder, where the language is clear and unambiguous it becomes a question of law for the court.” (Internal quotation marks omitted.) Gateway Co. v. DiNoia, 232 Conn. 223, 232, 654 A.2d 342 (1995). “[O]ur courts have continued to refer to the intent of the parties to create a direct obligation between the promisor and the beneficiary as the test for determining whether a nonparty to the contract is a third party beneficiary thereof. . . . In determining whether a person has a right of action as a third party beneficiary, [t]he ultimate test to be applied ... is whether the intent of the parties to the contract was that the promisor should assume a direct obligation to the third party [beneficiary] and . . . that intent is to be determined from the terms of the contract read in the light of the circumstances attending its making, including the motives and purposes of the parties.” (Citation omitted; emphasis added; internal quotation marks omitted.) Grigerik v. Sharpe, 45 Conn. App. 775, 783-84, 699 A.2d 189, cert. granted on other grounds, 243 Conn. 918, 701 A.2d 342 (1997). Further, “[t]heintention of the parties to a contract is to be determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. The question is not what intention existed in the minds of the parties but what intention is expressed in the language used.” (Emphasis added.) Ives v. Willimantic, 121 Conn. 408, 411, 185 A. 427 (1936).

Here, the motives and the purposes of the parties to the contract, the note and the mortgage deed, collectively, are evidenced by the clear and unambiguous language that was used in the respective documents. Because “[a] promissory note and a mortgage deed are deemed parts of one transaction and must be construed together as such”; Citicorp Mortgage, Inc. v. Porto, 41 Conn. App. 598, 602, 677 A.2d 10 (1996); we turn to the express language in each of the loan instruments. Specifically, the note refers to only one maker, Fitch, and the mortgage deed refers to only one mortgagor, also Fitch. The only signatories to the note and the mortgage deed were CHFA and Fitch. Furthermore, neither the note nor the mortgage deed referenced Carr Management, directly or indirectly, as either a direct or an intended beneficiary of the agreement between CHFA and Fitch.

Equally unavailing is Carr Management’s claim that it is a third party beneficiary of the note and the mortgage deed because of a management agreement between Fitch and a predecessor management company, whom Carr Management replaced. That agreement, dated January 1, 1988, expired on May 31, 1993. In that agreement, the prior management company acknowledged that Fitch was required to abide by the terms of the mortgage loan documents, but there was no indication in the agreement of the plaintiffs intention to incur a direct obligation to Carr Management.

Further review of the record reveals that the only evidence that was offered to support the defendants’ theory that CHFA ever intended to assume a direct obligation to Carr Management was a portion of Christopher Carr’s affidavit. The trial court determined that the only portion of that affidavit “which might create a doubt” as to whether Carr Management was a third party beneficiary of the note and the mortgage deed was the portion that stated: “As a result of the foregoing, it was the intent of the parties on January 22,1988 when all of the foregoing instruments were entered into, that CHFA would owe a direct obligation to [Carr Management].” The trial court soundly reasoned that Carr’s affidavit stated only conclusions, without offering specific facts. “[A]n adverse party, by affidavit or as otherwise provided by § 380 of the 1978 Practice Book [now Practice Book (1998 Rev.) § 17-45], must set forth specific facts showing that there is a genuine issue for trial, and if he does not so respond, summary judgment shall be entered against him. . . . Moreover, mere conclusions are insufficient . . . .” (Citations omitted; emphasis added.) Farrell v. Farrell, 182 Conn. 34, 38-39, 438 A.2d 415 (1980). We conclude that the express language of both loan instruments evidenced no intent that Carr Management was to be a third party beneficiary of the note and the mortgage deed.

We are satisfied from our review of the record that the trial court properly determined that the defendants did not proffer any relevant and material evidence to sustain their claim that a genuine issue of material fact existed as to this issue.

II

The defendants next claim that the trial court improperly rendered summary judgment on their counterclaim for wrongful acceleration of the note. We disagree.

“Notices of default and acceleration are controlled by the mortgage documents. Construction of a mortgage deed is governed by the same rules of interpretation that apply to written instruments or contracts generally, and to deeds particularly. The primary rale of construction is to ascertain the intention of the parties. This is done not only from the face of the instrument, but also from the situation of the parties and the nature and object of their transactions.” (Internal quotation marks omitted.) Citicorp Mortgage, Inc. v. Porto, supra, 41 Conn. App. 602.

Here, the unambiguous language in both the promissory note and the mortgage deed clearly states the intention of the parties to this transaction with respect to the issues of notice and acceleration. Specifically, paragraph four of the promissory note states that “[e]ach and every maker, endorser, guarantor and surety of this Note and all others who may become liable for all or any part of this obligation do hereby waive demand . . . and notice of nonpayment of this Note . . . .” (Emphasis added.) Clearly, CHFA was under no obligation to give notice to Fitch regarding nonpayment of the note.

Moreover, an acceleration clause was expressly provided for under article one, § 1.01 (a), of the mortgage deed, whereby “[a]ny deficiency in the amount of [a] . . . monthly payment required to be paid shall constitute an Event of Default hereunder and the whole of said principal sum and all accrued unpaid interest thereon shall immediately become due and payable at the option of [CHFA].” It is well established that the exercise of an acceleration clause is proper upon an event of default as provided for and controlled by the terms of the note and the mortgage deed. Burt’s Spirit Shop, Inc. v. Ridgway, 215 Conn. 355, 365, 576 A.2d 1267 (1990); Christensen v. Cutaia, 211 Conn. 613, 617, 560 A.2d 456 (1989).

Here, under the express terms of the note, Fitch waived its right to receive notice from CHFA regarding nonpayment of the note. Furthermore, the express terms of the mortgage deed provided CHFA with the right to accelerate the full balance of the note as immediately due and payable at CHFA’s option upon any event of default by Fitch. While it is not disputed that CHFA prematurely issued notice of default to Fitch on February 24, 1993, such notice was unnecessary as to the monetary default. Furthermore, Fitch’s general partner, Carr, admitted that Fitch was, in fact, subsequently in default under the terms of the note. Because “the institution of a foreclosure action constitutes a valid exercise of a mortgagee’s acceleration right”; Hartford Federal Savings & Loan Assn. v. Tucker, 196 Conn. 172, 180, 491 A.2d 1084, cert. denied, 474 U.S. 920, 106 S. Ct. 250, 88 L. Ed. 2d 258 (1985); we conclude that CHFA’s acceleration was proper under the circumstances of this case. The defendants offered no relevant and material evidence in support of their counterclaim. Because there was no genuine issue of material fact, the motion for summary judgment was properly granted.

III

Finally, the defendants claim that the trial court improperly determined that the plaintiff was entitled to summary judgment with respect to Fitch’s special defense that CHFA breached the implied covenant of good faith and fair dealing by wrongfully accelerating the debt. We are unpersuaded.

The defendants contend that, as a result of previous litigation between CHFA and some of Fitch’s tenants, CHFA wrongfully accelerated the debt “in retaliation for the fact that CHFA and its two senior-most executives were made parties to the [previous] litigation.” We can hardly deem as wrongful CHFA’s acceleration of the debt in this case because Fitch conceded numerous defaults under the terms of the note and the mortgage. Moreover, CHFA is a public body that utilizes public funds. To protect the public fisc by way of foreclosure, when there are undisputed material defaults, is hardly wrongful. There are no genuine issues of material fact concerning this claim, and CHFA was entitled to judgment as a matter of law.

The judgment is affirmed.

In this opinion the other judges concurred.

       CHFA is “a body politic and corporate” of the state, defined in and governed by General Statutes § 8-244.

       Prior to August, 1993, Carr Management was Fitch’s managing agent of the subject property, a federally subsidized housing project for the elderly in Windsor.

       Fitch, as lessor, and the town of Windsor, as lessee, had previously executed a lease agreement regarding the subject property, referred to as a leasehold mortgage deed. This agreement encumbers the subject property. Fitch granted to CHFA a mortgage interest in all of Fitch’s right, title and interest in this lease agreement. As additional security for the note, Fitch also executed in favor of CHFA a collateral assignment of leases and rentals, an assignment of proceeds, a building loan agreement and a covenant of compliance and regulatory agreement.

         A number of monetary and nonmonetary defaults were alleged by CHFA, which included failure to (1) remit a portion of the February 1,1993 payment that was due, (2) remove all liens filed against the property, (3) maintain the property in good condition and (4) disclose information regarding the then current insolvency of the Fitch Court Limited Partnership.

       In the letter, CIIFA stated, “If the February payments are immediately delivered lo CHFA, we will decelerate this loan to afford you until March 25, 1993, to offer an acceptable cure to CHFA. If, however, the February payments are not made ... by the close of business Monday, March 15, 1993, CHFA hereby reaffirms its acceleration of this loan effective March 2, 1993.”

       Paragraph one of the lockbox agreement provides: “[Fitch] hereby confirms that it is in default under the Mortgage and that pursuant thereto, its license under the Mortgage to collect all rents and other funds from whatever source from the [premises] was revoked as of the dates hereof.”

       Carr was managing general partner of Fitch, and president and controlling shareholder of Carr Management during all periods relevant to this case.

       The two paragraph counterclaim alleges: “1. By its letter dated February 24, 1993, a copy of which is attached to the amended complaint as Exhibit F-l, the plaintiff wrongfully accelerated the note and demanded the full payment thereof.
      “2. As a result of amended wrongful acceleration and demand, the defendants have suffered direct and consequential damages for which the plaintiff is responsible.”

       The trial court did label the premature notice a “technical” breach by CHFA. We note, however, that CHFA’s letter of default dated March 11, 1993, was beyond the thirty day grace period.

       In its memorandum of decision, the trial court stated that “there was no relevant and material evidence to contradict [CHFA’s] factual statement in regard to the failure of [Fitch] to pay the February, March, April and May installments due on the note and mortgage before this suit was begun on May 21, 1993. The February, March and April payments were then due and owing, and the note and mortgage were in default.”