text:
    State of Connecticut v. Emmet Riggs
    (2780)
    Dupont, C. J., Hull and Daly, Js.

      Argued February 6 —
    decision released April 22, 1986

      Nicholas P. Cardwell, with whom was Kenneth J. McDonnell, for the appellant (defendant).

      Susan C. Marks, deputy assistant state’s attorney, with whom, on the brief, was Warren Maxwell, assistant state’s attorney, for the appellee (state).
   Daly, J.

The defendant was indicted by a grand jury for murder, a violation of General Statutes § 53a-54a. The case was tried before a jury and the defendant was found guilty of the lesser included offense of manslaughter in the second degree, a violation of General Statutes § 53a-56. The defendant appeals from the judgment of conviction alleging that he was denied the protection of the presumption of innocence and due process of law (1) because the decision of the state’s attorney to seek an indictment for murder was not reasonably supported by the evidence, and (2) because the trial court denied his motions for judgment of acquittal and charged the jury on the elements of every lesser included offense to the original charge of murder where the evidence was insufficient to substantiate the original charge. We find no error.

The following facts are undisputed. At approximately 11 p.m. on June 19,1981, Jocelyn Howard, the victim, was sitting with two friends, Rosemarie Smith and Donna Watson, at the upstairs bar of Jerry Mac’s Cafe in Hartford. The defendant approached the bar and ordered a drink. The defendant was unknown to the three women. He offered to buy Smith a drink but she refused. Thereafter, the defendant became engaged in a heated argument with the victim who was seated next to Smith. The victim uttered profanities at the defendant. She arose from her chair to block the defendant’s way and pointed towards him. The defendant claims that the victim confronted him with an object, either a knife or a razor blade. No other eyewitness saw such an object nor was one ever discovered. The defendant drew a knife from his jacket and interposed it between himself and the victim. The defendant claims that the victim fell onto his knife. The state claims that the evidence indicates that the defendant intentionally stabbed the victim. The knife entered the victim’s upper chest severing the aorta. The defendant withdrew the knife from the victim’s body, placed it back in his jacket and left the cafe. The victim died several hours later.

The next day, the defendant claimed that he learned that someone had died from a stab wound at the cafe. Soon thereafter and upon the advice of counsel, he gave the police a statement detailing his confrontation with the victim. The defendant was subsequently arrested and indicted by a grand jury for murder.

At the close of the prosecution’s case, the defendant moved for a judgment of acquittal on the charge of murder. General Statutes § 53a-54a (a) provides in pertinent part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . . ” “A person acts ‘intentionally’ with respect to a result . . . described by a statute defining an offense when his conscious objective is to cause such result . . . . ” General Statutes § 53a-3 (11). The defendant alleged that the state had failed to present evidence to prove that the defendant intended to cause the victim’s death. This motion was denied. After the presentation of the defendant’s case, he again moved for a judgment of acquittal on the same ground. This motion was also denied. The jury was charged as to the elements of murder, as well as the lesser included offenses of manslaughter in the first degree, manslaughter in the the second degree and criminally negligent homicide. The jury found the defendant guilty of manslaughter in the second degree. See General Statutes § SSa-SB. After the juiy rendered its verdict, the defendant made a final written motion for judgment of acquittal. This motion was denied without articulation.

The defendant’s first argument is that the decision of the state’s attorney to prosecute the defendant for murder constituted an abuse of prosecutorial discretion. He alleges that the prosecutor possessed insuffident evidence to demonstrate that the defendant intended to cause the victim’s death as provided by General Statutes § 53a-54a. See General Statutes § 53a-3 (11). The state argues that no such claim was presented to the trial court and therefore is not a proper issue for appellate review. See State v. Miller, 186 Conn. 654, 658-59, 443 A.2d 906 (1982); State v. Narvaez, 3 Conn. App. 166, 168-69, 485 A.2d 1351 (1985). The state’s argument continues, however, alleging that the existence of a grand jury indictment on the murder charge belies the defendant’s allegation that the state’s attorney abused his discretion.

The Appellate Court may only review those issues which were properly raised and ruled on by the trial court. State v. Miller, supra, 658. In general, a claim of an abuse of prosecutorial discretion should be made by a motion to dismiss based upon the “insufficiency of evidence or cause to justify the bringing or continuing of such information or indictment or the placing of the defendant on trial . . . .” Practice Book § 815 (5); see Spinella, Connecticut Criminal Procedure, pp. 604-605. Practice Book § 816, however, prohibits a “defendant who has been indicted by a grand jury . . . [to] make a motion under [Practice Book § 815 (5)].” The defendant made no formal objection to the prosecutor’s actions charging the defendant with murder. He did challenge the sufficiency of the evidence of intent in his motions for judgment of acquittal but such challenge did not refer to an abuse of prosecutorial discretion. Nevertheless, because the defendant’s claim raises an issue of his constitutional right to due process, we shall review his claim to the extent that it is clearly established on the record. State v. Orsini, 187 Conn. 264, 271, 445 A.2d 887, cert. denied, 459 U.S. 861, 103 S. Ct. 136, 74 L. Ed. 2d 116 (1982).

The due process clause of the fifth amendment to the United States constitution protects against vindictive or coercive use of the federal prosecutorial power. United States v. Goodwin, 457 U.S. 368, 372, 102 S. Ct. 2485, 73 L. Ed. 2d 74 (1982). The fourteenth amendment protects persons from the state’s abuse of its prosecutorial power. See State v. Hayes, 127 Conn. 543, 581, 18 A.2d 895 (1941). Additionally, “the inherent supervisory powers of the court over legal process in this state” guard against unfounded prosecution. State v. Ellis, 197 Conn. 436, 478, 497 A.2d 974 (1985). The state’s attorney is given “ ‘broad discretion in determining what crime or crimes to charge in any particular situation.’ State v. Chetcuti, 173 Conn. 165, 168, 377 A.2d 263 (1977).” State v. Ellis, supra, 478. “That power, however, is limited in the usual and lawful manner by the facts which the prosecutor may be reasonably expected to prove at trial. People v. Eboli, 34 N.Y.2d 281, [357 N.Y.S.2d 435,] 313 N.E.2d 746 [1974].” State v. Darden, 171 Conn. 677, 682, 372 A.2d 99 (1976). “[A]n indictment returned by a legally constituted nonbiased grand jury . . . if valid on its face . . . satisfies the requirements of the Fifth Amendment.” Lawn v. United States, 355 U.S. 339, 349, 78 S. Ct. 311, 2 L. Ed. 2d 32, reh. denied, 355 U.S. 967, 78 S. Ct. 529, 2 L. Ed. 2d 542 (1958). “ ‘The basic purpose of . . . indictment by a grand jury is to interpose, between the state and one accused of a crime ... a body of eighteen disinterested persons . . . to determine whether the state has shown probable cause for subjecting the accused to the expense, embarrassment and risk of such a trial.’ State v. Merrillo, 159 Conn. 264, 275, 268 A.2d 667 (1970).” State v. Curcio, 191 Conn. 27, 33, 463 A.2d 566 (1983). The existence of a facially valid indictment affords ample assurance that the charges brought against the defendant were based upon probable cause. See State v. Curcio, supra, 33; State v. Cobbs, 164 Conn. 402, 406, 324 A.2d 234, cert. denied, 414 U.S. 861, 94 S. Ct. 77, 38 L. Ed. 2d 112 (1973). The record before us provides no evidence demonstrating that the indictment was improper on its face or that the grand jury was biased, nor does the defendant make such a claim.

The defendant’s second allegation suggests that the trial court erred in denying his motions for judgment of acquittal on the charge of murder because there was insufficient evidence to support a jury verdict of guilty on such a charge. The defendant made three motions for judgment of acquittal. All three motions were denied without articulation. The defendant’s basis for making all three motions was the insufficiency of evidence to prove the charge of murder, specifically that the defendant intended to cause the victim’s death.

In denying the defendant’s motions for judgment of acquittal, the trial court must have found that “ ‘the jury could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt.’ ” State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984), quoting State v. Nemeth, 182 Conn. 403, 410, 438 A.2d 120 (1980). Our review of the record discloses sufficient evidence from which the jury could reasonably have found beyond a reasonable doubt that the defendant intended to cause the victim’s death. There was evidence that the defendant and the victim were arguing immediately prior to the accident. There was also evidence that the knife entered a vital area of the body. The knife also penetrated the victim’s body at a downward angle, to a depth of approximately five inches. The defendant fled from the scene of the incident. From such evidence the jury could have reasonably found that the defendant intended to cause the victim’s death.

If we assume, arguendo, that the jury should not have been charged on the crime of murder, the defendant was not prejudiced by such alleged error. The jury impliedly acquitted the defendant of murder and found him guilty of the lesser included offense of manslaughter in the second degree. State v. Shipman, 195 Conn. 160, 162, 486 A.2d 1130 (1985). If any error was made, with respect to the charge of murder, it was harmless beyond a reasonable doubt. State v. Cohane, 193 Conn. 474, 484, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984).

There is no error.

In this opinion the other judges concurred.

       “A person is guilty of manslaughter in the second degree when: (1) He recklessly causes the death of another person General Statutes § 53a-56 (a). “A person acts ‘recklessly’ with respect to a result . . . described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur .... The risk must be of such nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation . . . .” General Statutes § 53a-3 (13).

       The defendant’s brief alleges that he was denied the presumption of innocence. The presumption of innocence refers to the assignment of the burden of proof, beyond a reasonable doubt, which the state must bear to prove every element of a criminal charge. See State v. Fernandez, 198 Conn. 1, 21, 501 A.2d 1195 (1985); McCormick, Evidence (2d Ed., 1972) § 342. The trial court’s jury instruction specified that the state bore the burden of proving intent. The record does not show that the state was excused from its burden of proving intent, or any other element of the crimes charged.

       The defendant does not claim that his right to due process was violated because the prosecutor’s decision was motivated by vindictiveness. See United States v. Goodwin, 457 U.S. 368, 372, 102 S. Ct. 2485, 73 L. Ed. 2d 74 (1982). There is no claim that the prosecutor’s decision denied the defendant’s right to equal protection. See State v. Haskins, 188 Conn. 432, 474, 450 A.2d 828 (1982).
      The defendant does not assert that the due process clause of the Connecticut constitution, article first, § 8, affords a defendant any greater protection from prosecutorial discretion than that afforded by the fourteenth ■amendment to the United States constitution.

       Because we find that there was sufficient evidence of intent to warrant submission of a charge of murder to the jury, we need not speculate as to whether it was proper to instruct the jury on the lesser included offenses of manslaughter in the first and second degree and criminally negligent homicide. Such an instruction was proper. See General Statutes § 53a-45 (c); State v. Rodriguez, 180 Conn. 382, 399-405, 429 A.2d 919 (1980).


source: Caselaw Access Project

author: Daly, J.

license: Public Domain

text:
    Stanley Wykowski, Jr., et al. v. Achille A. Presti et al.
    (2973)
    Dupont, C. J., Borden and Daly, Js.
    Argued February 7 —
    decision released April 29, 1986

      Steven F. Rogers, for the appellants (plaintiffs).

      John W. Imhoff, Jr., filed a brief for the appellee (named defendant).

      Theodore Shumaker filed a Ibrief for the appellee (defendant Thomas J. Dvorachek).
   Daly, J.

The principal question on appeal is whether the defendants, Achille A. Prestí and Thomas J. Dvorachek, should be held individually liable, together with the defendant corporation, Hit Engineering, Inc., (Hit). The individual defendants and the plaintiffs entered into an oral contract for the fabrication of stamping dies which were to be delivered to Hit by the plaintiffs, Stanley Wykowski, Jr. and Thomas J. Dellipoali, doing business as the Artel Tool Company.

Certain facts are not in dispute. The plaintiffs manufactured the stamping dies and delivered them to Hit. The plaintiffs sent the initial billing to the defendant Dvorachek, but upon being informed by him that billings should be sent to Hit, the plaintiffs forwarded all subsequent invoices and billings to the corporation. The sum of $4926 remains due and owing to the plaintiffs for the work done.

The trial court found that the defendant Dvorachek was an implied agent of Hit but that he had not assumed any obligation of or guaranteed any payment by Hit. Although the defendant Prestí was the president and principal stockholder of Hit, the trial court found that he had not personally guaranteed the debt. The trial court, therefore, rendered judgment for the individual defendants. The plaintiffs moved to open the judgment and reargue. After the denial of that motion, the plaintiffs appealed.

“The proof of the existence of an agency is generally found in the acts and conduct of the parties.” Fox Piano Co. v. Bennett, 96 Conn. 448, 450, 114 A. 529 (1921); Cleaveland v. Gabriel, 149 Conn. 388, 394,180 A.2d 749 (1962). The existence of an implied agency and whether a person is acting within the bounds of his authority as an agent are questions of fact. Cohen v. Meola, 184 Conn. 218, 220, 439 A.2d 966 (1981); Adams v. Herald Publishing Co., 82 Conn. 448, 451, 74 A. 755 (1909).

The trial court decided the questions of fact in favor of the individual defendants. While the function of the trial court consists of weighing evidence and judging the credibility of the witnesses, that is not the function of this court. Murphy v. Dell Corporation, 184 Conn. 581, 583, 440 A.2d 223 (1981). A reviewing court’s role is to decide whether the decision of the trial court is clearly erroneous in view of the evidence and pleadings in their entirety. The trial court’s decision was not clearly erroneous. Id.

The plaintiffs further claim that the trial court abused its discretion by denying their motion to open the judgment. “ ‘ “A motion to open and vacate a judgment filed during the four months after which judgment was rendered is addressed to the court’s discretion, and the action of the trial court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion. . . . In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action.” ’ ” (Citations omitted.) Yanow v. Teal Industries, Inc., 196 Conn. 579, 583, 494 A.2d 573 (1985).

On the basis of the record before us, we are unable to conclude that the trial court acted beyond the bounds of its discretion in denying the motion to open judgment.

There is no error.

In this opinion the other judges concurred.

       A judgment by default was rendered against the defendant corporation.


author: Spallone, J.

text:
    Ernest Walker v. Ambulance Service of Manchester, Inc., et al.
    (4314)
    Dupont, C. J., Borden and Spallone, Js.
    Argued March 12 —
    decision released April 29, 1986

      Stanley Falkenstein, with whom was Robin Murdock-Meggers, for the appellants (defendants).

      Kathleen D. Stingle, for the appellee (plaintiff).
   Spallone, J.

The defendants appeal from the judgment of the trial court rendered in accordance with the report of an attorney trial referee. The underlying dispute concerns a contract in which the plaintiff agreed to transfer his East Windsor ambulance service to the defendants in exchange for which the defendants agreed, among other things, to secure and deliver to the plaintiff a release of a mortgage on the plaintiffs property. The mortgage was given by the plaintiff and his wife to a third party. Although the transfer of the business took place and thereafter the plaintiff performed services for the defendants, the defendants failed to secure and deliver the release of the mortgage and to pay the plaintiff for the services rendered.

The action was referred to an attorney trial referee; Practice Book § 430; who found the issues for the plaintiff. He awarded the plaintiff damages and ordered that the plaintiff be released from the mortgage and discharged from the debt which it secured. The attorney referee’s report was filed in the trial court on May 1, 1985. On May 17,1985, the plaintiff filed a motion for judgment on the report. Practice Book § 442. On that same date, the defendant filed an objection to the court’s acceptance of the report and requested that judgment not be rendered in accordance with such report. Practice Book § 440. On May 28,1985, the trial court, Aspell, J., heard the plaintiff’s motion for judgment, the defendants’ objection thereto and the plaintiff’s replies to that objection, but did not rule on them. On June 6,1985, the court, Stoughton, J., without further notice to the parties, rendered judgment for the plaintiff in accordance with the attorney referee’s report. The record does not disclose how or why the file was transferred from Judge Aspell to Judge Stoughton.

Although the defendants raise several claims on appeal, the dispositive issue is whether the trial court, Stoughton, J., erred in rendering judgment in accordance with the attorney referee’s report notwithstanding the absence of a ruling by Judge Aspell on the defendants’ objection to the acceptance of such report. We conclude that it did so err.

Practice Book § 442 provides in part that “[i]f exceptions or objections have been seasonably filed, the case should be claimed for the short calendar for hearing thereon; and the court may, upon its decision as to them, forthwith direct judgment to be rendered.” Although the defendants’ objection to the acceptance of the attorney referee’s report was heard by Judge Aspell, the record is devoid of any ruling on that objection. The plaintiff contends that the defendants waived their right to object because their motion was untimely.

Inasmuch as the defendants have a right to object to the trial court’s acceptance of an attorney referee’s report; Practice Book § 440; they are entitled to the trial court’s express ruling on that objection, including a ruling on whether the objection was timely, prior to the acceptance of that report and the rendition of judgment in accordance therewith. Moreover, they were entitled to that ruling by the judge to whom the matter was argued and submitted. We conclude that Judge Stoughton should not have rendered judgment in accordance with the attorney referee’s report when the defendants’ objection had been presented to Judge Aspell. See Practice Book §§ 434 through 442.

There is error, the judgment is set aside and the case is remanded for a new hearing on the defendants’ objection to the court’s acceptance of the attorney referee’s report, and thereafter to proceed according to law.

In this opinion the other judges concurred.


author: Per Curiam.

text:
    Avis Rent A Car System, Inc. v. North American Van Lines, Inc., et al.
    (4395)
    Dupont, C. J., Hull and Borden, Js.
    Argued April 8 —
    decision released April 29, 1986

      Philip R. Shiff, for the appellant (plaintiff).

      Robert W. Lotty, for the appellees (defendants).
   Per Curiam.

There is no error.


text:
    Lucy Domschine v. Equitable Life Assurance Society of the United States et al.
    (4487)
    Dupont, C. J., Hull and Borden, Js.
    Submitted on briefs March 27 —
    decision released April 29, 1986

      Thomas J. Daly and Richard K. Mulroney filed a brief for the appellant (plaintiff).

      Timothy J. Hauburger and Raymond J. Ploujfe, Jr., filed a brief for the appellees (defendants).
   Per Curiam.

The plaintiff brought suit seeking a declaratory judgment to determine whether her employer, the defendant Bryant Circuit Protective Devices Division, and its insurer, the defendant Equitable Life Assurance Society of the United States, were entitled to offset a workers’ compensation award she received for a permanent disability from payment due her under a long-term disability plan sponsored by Bryant and insured by Equitable. The defendants moved for summary judgment claiming that there was no genuine issue of material fact and, that as a matter of law, they were entitled to make such a setoff. The trial court agreed and rendered summary judgment in the defendants’ favor. The plaintiff now appeals claiming that the trial court erred in rendering summary judgment because the language of the insurance policy was subject to more than one interpretion, and accordingly, the trial court was required to construe the language against Equitable, its draftsman.

The record in this case is devoid of any indication that “all persons having an interest in the subject matter of the complaint” were either made parties to the action or given reasonable notice of the suit as is required by Practice Book § 390 where a declaratory judgment is sought. “Strict adherence to the notice requirements of § 390 (d) is required. Russo v. Watertown, [184 Conn. 30, 33, 441 A.2d 56 (1981)]; Hopkins v. Pac, 176 Conn. 318, 319, 407 A.2d 979 (1978); Cavalli v. McMahon, 174 Conn. 212, 215, 384 A.2d 374 (1978). ‘A failure to comply with § [390 (d)] is a jurisdictional defect and, as such, can be raised even on 'appeal by the court itself.’ Russo v. Watertown, supra, quoting Manley v. Pfeiffer, 176 Conn. 540, 545, 409 A.2d 1009 (1979).” Echo Four v. Hill, 3 Conn. App. 118, 122-23, 485 A.2d 926, cert. denied, 195 Conn. 801, 487 A.2d 564 (1985).

Other employees of Bryant who were covered under the disability plan had an interest in the subject matter of the suit which would have been affected by any declaratory judgment. Because these employees were not given notice, the trial court lacked jurisdiction to render the summary judgment, and therefore erred in doing so. Id., 124.

There is error, the judgment is set aside and the case is remanded with direction to dismiss the action for lack of jurisdiction.

       Bryant is a division of Westinghouse Electric Corporation.

       Practice Book § 390 provides in part: “The court will not render declaratory judgments upon the complaint of any person: . . . (d) unless all persons having an interest in the subject matter of the complaint are parties to the action or have reasonable notice thereof.”


author: Hull, J.

text:
    Raymond Murteza v. State of Connecticut
    (3887)
    Dupont, C. J., Hull and Daly, Js.
    Argued February 6 —
    decision released April 29, 1986

      Wesley W. Horton, with whom were Arnold Rutkin, Kathleen A. Hogan and, on the brief, Kimberly A. Knox and David Bloomberg, law student interns, for the appellant (plaintiff).

      Jeremiah M. Keefe, with whom was James E. Kernan, for the appellee (defendant).
   Hull, J.

This case raises the question of whether the trial court erred in refusing to set aside a general verdict for the defendant and to render judgment for the plaintiff in a statutory negligence action he brought against the state pursuant to General Statutes § 52-556. The plaintiff claims that because the jury answered two interrogatories in a manner that conclusively established that the defendant was at fault, the trial court could only render judgment for him. We disagree. The jury, as the ultimate judge of the credibility of witnesses and the weight to be accorded their testimony, was entitled to disbelieve the plaintiff s damage claims entirely. Thus, despite the plaintiffs assertion that he suffered tremendous injuries and damages, we find no error.

The case was brought to recover damages the plaintiff claimed to have sustained as a result of an automobile accident which occurred in Waterbury on February 7, 1978. The plaintiffs amended complaint alleged that Michael Sloan, an employee of the defendant, the state of Connecticut, drove a Connecticut National Guard truck through a red light at an intersection and struck a Waterbury police car in which the plaintiff, a Waterbury police officer, was a passenger.

After a nine week trial, the jury was asked, in addition to returning a general verdict, to answer five special interrogatories, only two of which are pertinent to our inquiry. Those two interrogatories are as follows: (1) “Do you find, based on the evidence presented to you that it is more probable than not that Michael Sloan ran a red light when he drove his vehicle into the intersection of West Main Street and southbound Watertown Avenue, where [the] incident in question occurred?”; and (2) “Do you find, based on the evidence presented to you that Michael Sloan was negligent in one or more respects as set forth in the Plaintiff’s complaint?” The jury answered both questions affirmatively, but nevertheless rendered a general verdict in favor of the defendant.

Counsel for the plaintiff immediately asked the court to instruct the jury to render a verdict for the plaintiff in accordance with their findings regarding fault. The court refused to do so on the ground that the jury might not have found that the plaintiff had sustained his proof as to damages. The plaintiff then filed a motion to set aside the general verdict and judgment, and for judgment on the responses to the interrogatories and for a new trial as to damages. The trial court denied these motions stating that “[t]he Court is of the opinion that the jury could have discredited testimony as to damages and that they could have found that the damages, perhaps, were not proven by a fair preponderance of the evidence as is necessary.” The plaintiff now appeals claiming as his sole issue that, notwithstanding the general verdict for the defendant, he was entitled to judgment as a matter of law because of the jury’s answer to the two interrogatories and, therefore, the trial court erred in refusing to set aside the verdict.

Relevant testimony before the jury follows. On February 7,1978, there was a snow storm in Connecticut so severe that the governor called out the National Guard. Only emergency vehicles were allowed on the roads of the state. At approximately 11:30 p.m., on that evening, the plaintiff was a passenger in the back seat of a police cruiser being driven by Officer Anthony Palladino. The cruiser was driving in a southerly direction on Watertown Avenue. At the same time, Michael Sloan was driving a National Guard truck westerly on West Main Street. His mission was to deliver some police officers to their homes. Sloan failed to stop at the red light at the intersection of West Main Street and Watertown Avenue. The cruiser driven by Palladino struck the truck at a point in the middle of the southbound Watertown Avenue lanes of travel, badly damaging the front of the cruiser and smashing its door in. Palladino’s speed was between fifteen and twenty miles an hour, while Sloan was travelling at about twenty-five to thirty-five miles per hour. Palladino never saw the truck before the collision. The roads in the area were icy and only partly plowed. They were lined with high snow banks.

The plaintiff was taken to Waterbury hospital where he remained for fifteen days. He was treated for a complaint concerning his left eye which was described in the hospital records as “some tearing of the eyes” and “some white mucus from the left eye.” The plaintiff was also treated for acute back and neck pain, by Dr. J. Michael Hogan, an orthopedic surgeon, who had treated the plaintiff for back problems since 1972.

The plaintiff claimed the following principal consequences of the accident: (1) sexual impotency; (2) lost wages; (3) permanent disability from work; (4) general limitation of social, recreational and normal life activities; (5) drug addiction; and (6) termination of his marriage. The plaintiff also claimed $84,996.55 of medical special damages. At trial, the plaintiff introduced extensive medical testimony in an attempt to substantiate these claims. Hogan testified that a diagnostic test known as a myelogram, taken right after the accident, showed significant signs of abnormality of the spine, while an identical test performed six months before the accident showed none. His discharge diagnosis was acute cervical strain and abrasion of the eye. While Hogan performed four surgical operations on the plaintiff s cervical spine after the accident, he stated that the accident was not the only cause of the treatment rendered after the accident. Dr. Richard Matza, an orthopedic surgeon who treated the plaintiff after Hogan moved to Maine, testified that all of the six operations the plaintiff had on his cervical and lumbro-sacral spine resulted from injuries incurred in the accident and that the plaintiff was permanently disabled therefrom.

Several other doctors testified that the plaintiff was able to work and that his injuries were not caused by the accident. Dr. James Finn, a neurosurgeon, testified that, in September 1978, the plaintiff was disabled from all employment and would probably continue to be for another three to six months. He stated, however, that the plaintiff’s back problem was primarily a result of injuries which occurred prior to 1978. Dr. Macellis Glass, an orthopedic surgeon, testified that X-rays taken after the accident showed no evidence of a herniated disc in the cervical area. He further testified that a myelogram was performed on June 7, 1977, which identified cervical scar tissue which had formed from a previous operation. A myelogram performed in March 1978, after the accident, showed no change from the earlier myelogram, and no cervical injury was sustained in the accident.

I

Did the Trial Court Err in Refusing to Set Aside the Verdict and in Refusing to Render Judgment for the Plaintiff

The role of an appellate court where an appellant seeks judgment contrary to a general verdict, because of the jury’s allegedly inconsistent answers to interrogatories, was first analyzed in Belchak v. New York, N. H. & H. R. Co., 119 Conn. 630, 179 A. 95 (1935). In Belchak, the plaintiff recovered damages for injuries suffered when an automobile which his intestate was driving was struck by a freight car as the automobile crossed the defendant’s tracks. The jury rendered a general verdict for the plaintiff but answered in the affirmative the question whether, at the time of the accident, an employee of the defendant had been on the crossing swinging a white lantern. The defendant moved to have the general verdict set aside and to have judgment rendered in its favor, claiming that the answer to the interrogatory showed indisputably that the driver had been contributorily negligent so as to bar the plaintiff’s recovery. The trial court rendered judgment in the defendant’s favor, and on appeal the Supreme Court found error.

In finding error in Belchak, the Supreme Court clarified the appropriate standard to use when answers to interrogatories allegedly conflict with a general verdict: “To justify the entry of a judgment contrary to a general verdict upon the basis of answers to interrogatories, those answers must be such in themselves as conclusively to show that as a matter of law judgment could only be rendered for the party against whom the general verdict was found; they must negative every reasonable hypothesis as to the situation provable under the issues made by the pleadings; and in determining that, the court may consider only the issues framed by the pleadings, the general verdict and the interrogatories, with the answers made to them, without resort to the evidence offered at the trial.” (Emphasis added.) Id., 634. The court determined that that standard had not been satisfied because “an entirely reasonable hypothesis might be formulated within the scope of the pleadings and not inconsistent with the answer to the interrogatory, which would remove the question of negligent conduct on the part of the operator of the car from the field of law to that of fact and, despite that answer, justify the general verdict for the plaintiff.” Id., 635. This was so because the interrogatories had not addressed several issues: “How wide was the street, how many tracks ran across it and how far was the distance over them? Where did the employee stand, in the center of the road or at one side, between the automobile and the tracks or beyond them? Did he swing the lantern across the road or parallel with its direction? Were there obstructions to the view of the approaching driver? . . . [W]as the lantern lighted?” Id., 634-35.

It is well established that a general verdict must stand if the jury could have found for the defendant on any one of the material issues it had to decide. Kalleher v. Orr, 183 Conn. 125, 127, 438 A.2d 843 (1981). Goodman v. Metallic Ladder Mfg. Corporation, 181 Conn. 62, 65, 434 A.2d 324 (1980). Where there is a general verdict for the defendant, without interrogatories, it is presumed that the jury found every issue in favor of the defendant. Stone v. Bastarache, 188 Conn. 201, 204, 449 A.2d 142 (1982). The Belchak court’s conclusion follows logically from this: if the interrogatories did not address certain issues, they are deemed to be found for the defendant and, therefore, judgment may not be rendered contrary to the general verdict. Belchak v. New York, N. H. & H. R. Co., supra, 634-36. Here, the defendant claims that the answers to the interrogatories did not address the issues of proximate cause of the accident or damages and accordingly, those issues must be deemed to have been found in its favor. We will consider the defendant’s two Belchak claims: that the interrogatories did not address the issues of proximate cause or damages, in order.

In resolving these issues, we consider the pleadings and the record as to the claim for entry of judgment, and the evidence as to the question of granting a new trial on liability. We do so with our general standard for reviewing a trial court’s refusal to set aside the verdict in mind. “Our review of a trial court’s refusal to set aside a jury verdict is limited. If, on the evidence, the jury could reasonably have decided as they did, we will not find error in the trial court’s acceptance of the verdict. Rood v. Russo, 161 Conn. 1, 3, 283 A.2d 220 (1971); Giambartolomei v. Rocky DeCarlo & Sons, 143 Conn. 468, 474, 123 A.2d 760 (1956). A jury verdict should not be disturbed ‘unless it is against the evidence or its manifest injustice is so plain as to justify the belief that the jury or some of its members were influenced by ignorance, prejudice, corruption or partiality.’ Martino v. Palladino, 143 Conn. 547, 548, 123 A.2d 872 (1956). Upon review by the trial court on a motion to upset the jury’s verdict and in this court, ‘the evidence must be given the most favorable construction in support of the verdict of which it is reasonably capable.’ Horvath v. Tontini, 126 Conn. 462, 464, 11 A.2d 846 (1940). . . . ‘The trial court’s refusal to set aside the verdict is entitled to great weight and every reasonable presumption should be given in favor of its correctness. Waldron v. Raccio, 166 Conn. 608, 618, 353 A.2d 770 [1974]; Neal v. Shiels, Inc., 166 Conn. 3, 19, 347 A.2d 102 [1974].’ Katsetos v. Nolan, 170 Conn. 637, 656, 368 A.2d 172 (1976).” Kalleher v. Orr, supra, 126-27. The court was not in error in refusing to set aside the verdict.

A

LACK OF FINDINGS IN THE ANSWERS TO THE INTERROGATORIES THAT THE DEFENDANT’S EMPLOYEE’S NEGLIGENCE WAS THE PROXIMATE CAUSE OF THE PLAINTIFF’S INJURIES

The plaintiff’s amended complaint describes the movement of the police car and the National Guard truck leading up to the accident at the intersection. It then claims in essence that the collision was due to the negligence of the defendant acting through Michael Sloan in one or more of the following ways: (1) he failed to grant the right of way at the stop light; (2) he operated the truck at a rate of speed that was unreasonable with regard to the prevailing conditions; (3) he failed to keep his vehicle under control; (4) he should have, but failed to see the police car in which the plaintiff was a passenger in time to avoid the collision; and (5) he drove his vehicle with defective or inadequate brakes or failed to apply his brakes to avoid colliding with the patrol car.

Based on this complaint, the record, and the jury’s response to the second interrogatory finding Sloan negligent in one or more of the respects set forth in the complaint, we could not say as a matter of law that a verdict was rendered for the plaintiff. The mere finding of the jury that Sloan was negligent in one or more of the respects alleged in the complaint does not, in and of itself, mandate the conclusion that this negligence was the proximate cause of the accident. We could formulate too many Belchak-type hypotheses to justify our invading the province of the jury on that basis. The jury’s response that Sloan “ran a red light,” however, establishes that there was negligence per se on Sloan’s part. As a matter of law, the jury could not reasonably have found that Sloan’s negligence was not a proximate cause of any injuries the plaintiff may have suffered.

When we also consider the evidence, as we must when reviewing the trial court’s decision on the plaintiff’s motion to set aside the verdict, the case is even stronger. An examination of the photographs in evidence shows substantial damage to the truck and the automobile. They also show the snowy conditions of the roads leading up to the intersection and illustrate that because of those conditions, each approach to the intersection was hemmed in on the sides by high sight-blocking piles of snow, giving the effect of two tunnels approaching each other. There is no doubt that under the snow emergency conditions shown by the evidence, Sloan’s negligence in running the red light must reasonably be found to have been a proximate cause of the accident. This ground does not, as the defendant claims, justify the upholding of the verdict.

B

WHETHER THE JURY COULD REASONABLY HAVE FOUND THAT THE PLAINTIFF HAD FAILED TO PROVE HIS DAMAGES

Because the jury did find negligence and had to, as a matter of law, find that the defendant’s negligence was the proximate cause of the accident, the decisive issue is whether the jury reasonably could have found that the plaintiff suffered no substantial injury or consequences from the accident. The plaintiff vigorously asserts that the jury had to find damages because he introduced evidence by experts as to certain injuries he received. He particularly refers to testimony of glass in his left eye and to testimony of two of his physicians attributing a certain amount of his back complaints to the accident. Because of the magnitude of the damages claimed by the plaintiff, and in order to afford a full measure of justice in the unusual circumstances of this case, we have meticulously examined the voluminous medical records and transcripts.

The face sheet of the plaintiffs admission record at Waterbury Hospital Health Center is signed by Dr. J. Michael Hogan, the plaintiffs attending physician. It describes the final diagnosis as acute cervical strain and abrasion of the eye. It describes the plaintiffs complaint that his head hit the window during the accident with resulting pain in the neck and low back. It relates that “he was seen in consultation by Dr. Jenusaitis, and also by Dr. Good, for complaints of irritation of the left eye. For this he was treated with ointment three times a day to the eye.” Hogan did not report any glass observed in the plaintiffs eye. He found nothing objective in the lumbro-sacral region. He noted a previous history of a herniated disc and resection at the level of the sixth and seventh cervical vertebrae, and previous lower back discomfort satisfactorily controlled by exercises. The emergency room record from 11:55 p.m. on February 7,1978, indicates: “[sjmall pieces of glass around . . . lashes.” No other injuries were noted.

In Jenusaitis' consultation report, dated February 13, 1978, he stated that the plaintiff was “still in pain . . . in his left eye. He apparently had some glass which was in the eye which he stated on pulling the lid, a piece of glass fell out. He also apparently had some glass embedded in the left arm.” Jenusaitis then described minor eye complaints made by the plaintiff and stated that there was a slight amount of conjunctivitis of the left eye. Good's consultation report, dated February 14, 1978, reported traumatic conjunctivitis and corneal abrasion, healed. The nursing note dated February 8, 1978, notes “has some glass in hair.”

There is no doubt from consideration of the testimony of the various physicians and other medical evidence that, as reported by the plaintiff, he was treated for an acute cervical strain. He continued to be treated extensively by many physicians. His treatment included repeated hospitalization and surgical procedures, involving at different times both the cervical and lumbar areas. It is likewise clear that based on the plaintiffs complaints, he was treated briefly with medication for a slight amount of conjunctivitis in the left eye. We can find in the record no testimony, however, other than that based on the plaintiffs complaints, that there was a piece of glass in his left eye.

The plaintiff claims that the jury could not reasonably have disbelieved the evidence concerning his injuries. The answer to this argument lies in a massive and devastating attack on the plaintiffs credibility. A few major examples, among many others, follow: (1) The plaintiff claimed that his back was perfect as of the date of the accident, but the evidence showed that he had filed twenty-three workers’ compensation claims prior to the accident and that he had obtained permanent disability ratings for both the neck and back prior to the accident; (2) he had made claims in other litigation prior to the accident that he sustained permanent injuries to the neck and back; (3) he claimed he was impotent, but his girlfriend of three years indicated that he was not; (4) he claimed that he was totally disabled from employment, but told one of his physicians that he had three part-time jobs; (5) he claimed that he was totally disabled from performing basic movements such as walking, but there was testimony that he had engaged in snow shoveling, riding horses, yard work, dancing, and long automobile trips; (6) he claimed loss of life’s enjoyment, but admitted to owning and driving a limousine and owning horses; (7) he claimed his marriage was destroyed due to the accident, but his wife indicated that he was a gambler and a drug abuser before the accident; and (8) he claimed his drug dependency was a result of the accident, although his drug abuse apparently preceded the accident by some six years.

This court faced a claim similar to that raised here, in Preisner v. Illman, 1 Conn. App. 264, 470 A.2d 1237 (1984), on which both the plaintiff and the defendant rely. In Preisner, the plaintiff sought damages from the owner and operator of an automobile which rear-ended the plaintiff’s automobile when she was stopped at a stop sign. The jury returned a general verdict for the defendants, and the plaintiff appealed from the trial court’s denial of her motion to set aside the verdict. She claimed that the trial court erred because the operator of the other vehicle had acknowledged, on cross-examination, that at the scene of the accident he had admitted responsibility. The defendants’ medical expert testified, however, that in his opinion, the plaintiff’s chronic back pain and eventual surgery were not caused by the accident but were more likely brought about by some sort of degenerative process. The defendants argued that the plaintiff’s activities and her medical history raised serious questions as to the credibility of the claims that her injuries were caused by the accident.

In finding no error, the Preisner court summed up the law in this area as follows: '' 'The trial judge can sense the atmosphere of a trial and has an excellent vantage point for evaluating the factors that may have brought the jury to its verdict.’ Hearl v. Waterbury YMCA, 187 Conn. 1, 3, 444 A.2d 211 (1982); Darling v. Burrone Bros., Inc., 162 Conn. 187, 200, 292 A.2d 912 (1972); see also Kukanskis v. Jasut, 169 Conn. 29, 32-33, 362 A.2d 898 (1975). The credibility and weight to be attributed to any evidence offered is solely within the province of the jury. Riccio v. Abate, 176 Conn. 415, 418, 407 A.2d 1005 (1979); State v. Penland, 174 Conn. 153, 157-58, 384 A.2d 356, cert. denied, 436 U.S. 906, 98 S. Ct. 2237, 56 L. Ed. 2d 404 (1978); see Gallo v. Gallo, 184 Conn. 36, 38, 440 A.2d 782 (1981). The plaintiff had the burden of proving her claims by a fair preponderance of the evidence. It is the privilege of the jury to believe or disbelieve any evidence and to attribute to any evidence whatever weight it feels is merited. Hyde v. Pizzuto, 151 Conn. 701, 195 A.2d 53 (1963); Prizio v. Penachio, 146 Conn. 452, 152 A.2d 507 (1959).

“ Tf the jury could reasonably have reached their conclusion the verdict must stand.’ Novella v. Hartford Accident & Indemnity Co., 163 Conn. 552, 555, 316 A.2d 394 (1972). ‘The concurrence of the judgments of the judge and the jury, who saw the witnesses and heard the testimony, is a powerful argument for sustaining the action of the trial court. Giambartolomei v. Rocky DeCarlo & Sons, Inc., 143 Conn. 468, 474, 123 A.2d 760 [1956].’ Novella v. Hartford Accident & Indemnity Co., supra, quoting Chanosky v. City Building Supply Co., 152 Conn. 642, 643, 211 A.2d 141 (1965). . . .

“The plaintiff relies principally on Pappaceno v. Picknelly, 135 Conn. 660, 663, 68 A.2d 117 (1949), wherein the Supreme Court, in a 3-2 decision finding error in the trial court’s denial of a motion to set aside a verdict for the defendants, concluded that the jury could not reasonably have found that the defendant bus driver was not guilty of negligence which was the proximate cause of the plaintiff’s injuries. There was no claim made in that case, however, concerning the plaintiff’s credibility.

“We conclude that the Pappaceno case rests on its own facts and is not controlling here where the slight or negligible impact at the scene and the plaintiff’s medical history over many years raised very substantial questions of her credibility. This case is more properly controlled by the dissenting opinion in that case which states that ‘the jury may disbelieve any witness, leaving the plaintiff without the necessary preponderance of the evidence.’ Id., 666 (Jennings, J., dissenting).” Preisner v. Illman, supra, 266-67.

This case is obviously a much more difficult one than Preisner. In Preisner, there was no evidence of automobile damage and the credibility question was a relatively modest one. In this case, there was substantial damage to the vehicles. The plaintiff’s credibility, however, was substantially and drastically impeached and there was nothing in the evidence that required the jury to believe any one of the plaintiff’s complaints wholly or in part. Most significantly, there was nothing in the evidence that, either in law or common sense, required the jury to believe that the plaintiff’s complaints, to the extent the jury found them to be valid, were caused by the accident in question. To put it colloquially, it may well be that the jury just did not “buy” the plaintiff’s testimony, and his supporting medical evidence, that he was injured at all in the accident. This was its prerogative.

It is only in a rare case that it can be said, as a matter of law, that the jury must accept as true evidence offered before it. Fox v. Mason, 189 Conn. 484, 489, 456 A.2d 1196 (1983). This is not such a case as concerned damages. Under the general verdict rule, the verdict must be sustained on this ground.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 52-556 provides: “Any person injured in person or property through the negligence of any state official or employee when operating a motor vehicle owned and insured by the state against personal injuries or property damage shall have a right of action against the state to recover damages for such injury.”

       In Gesualdi v. Connecticut Co., 131 Conn. 622, 41 A.2d 771 (1945), the court considered the two pronged relief of entering judgment or granting a new trial. There is language in that case; id., 631-32; that may be held to require that for either form of relief, only the pleadings and not the evidence may be considered. The Supreme Court’s reference to the source of this rule in Belchak v. New York, N. H. & H. R. Co., 119 Conn. 630, 179 A.2d 95 (1935), however, makes it clear that the rule applies only to the entry of judgment. The issue of setting aside the verdict and ordering a new trial is tested by the evidence before the trier. See, e.g., Pappaceno v. Picknelly, 135 Conn. 660, 661, 68 A.2d 117 (1949).

       Concerning the medical records, we have made allowances for the traditional difficulty of deciphering medical handwriting. Presumably, the jury labored under the same handicap.

       It should also be pointed out that the plaintiffs complaint did not allege aggravation of a pre-existing condition of the cervical spine. He claimed that all of his back problems after the accident were caused by it.

       The defendant purported to cross appeal claiming six “errors.” Its “claims” however, are merely alternate grounds for upholding the verdict which should have been raised in accordance with Practice Book § 3012 (a). In view of our disposition of the case, we do not consider the defendant’s claims.


text:
    Roger P. Menard et al. v. Louis A. Gentile et al.
    (3593)
    Hull, Daly and Bieluch, Js.
    Argued February 11 —
    decision released April 29, 1986

      C. Michael Budlong, with whom was Terence S. Ward, for the appellants (plaintiffs).

      Steven B. Fisher, for the appellees (defendants).
   Hull, J.

The plaintiffs, Roger and Claire Menard, appeal from the judgment the trial court rendered against them in their breach of contract suit against the defendants. They claim error in certain of the trial court’s factual findings and in one of its legal conclusions. We have determined that the trial court’s conclusion was legally and logically correct and its findings not clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980). Accordingly, we find no error.

In October of 1978, the defendants, Louis and Lisa Gentile, purchased three parcels of land which contained a two family house, a garage, two tobacco sheds and two barns. Shortly after purchasing the property, the defendants hired Roger Menard to maintain it and to complete certain repairs on one of the barns. At about the same time, the plaintiffs negotiated with the defendants to purchase a section of the land. When the defendants refused to convey the property, the plaintiffs sued them claiming breach of an express oral sales contract and unjust enrichment. The defendants counterclaimed in three counts alleging: (1) that the plaintiffs breached a contract under which they agreed to build a home for the defendants; (2) that the plaintiffs damaged the defendants’ property; and (3) that the plaintiffs misrepresented their ability to construct a home for the defendants.

The trial court found the following facts. While the plaintiffs and the defendants discussed the sale of the land, the defendants never agreed to sell. In spite of this, and without the defendants’ knowledge or permission, the plaintiffs moved into the house in December of 1978 and remained there, rent free, until the summer of 1980. They made extensive changes to the house. Some of the alterations increased the value of the house, while others were poorly done or unsafe and decreased the value. The net effect of all the changes was a $9500 increase in value. The extent to which the increase was due to the plaintiffs’ efforts could not be determined from the evidence since the increase was attributable to an indeterminable extent to improvements made by a third party and paid for by the defendants. Although the plaintiffs hoped that the defendants would sell the property to them, they had no reasonable expectation that the defendants would pay them for the work, and in fact the defendants were unaware that the work was being done. On the basis of these findings, the court rendered judgment for the defendants on the complaint and for the plaintiffs on the counterclaim.

The plaintiffs now appeal and assign as their first claim of error the trial court’s finding that the defendants did not make an oral contract to convey the property. The plaintiffs acknowledge that “it might be argued that the [alleged] contract was not enforceable due to the Statute of Frauds or due to indefiniteness of terms” and, accordingly, they do not claim that the court should have rendered judgment in their favor on this basis. Rather, they argue that the court’s incorrect determination that no oral contract was made led it to conclude erroneously that the doctrine of unjust enrichment should not be applied.

“Whether a contractual commitment has been undertaken is ultimately a question of the intention of the parties. ‘Intention is an inference of fact, and the conclusion is not reviewable unless it was one that the trier could not reasonably make.’ Hydro-Hercules Corporation v. Gary Excavating, Inc., 166 Conn. 647, 653, 353 A.2d 714 (1974); Bianco v. Darien, 157 Conn. 548, 557, 254 A.2d 898 (1969); Finlay v. Swirsky, 98 Conn. 666, 671, 120 A. 561 (1923).” Otto Contracting Co. v. S. Schinella & Son, Inc., 179 Conn. 704, 709, 427 A.2d 856 (1980). The plaintiffs assert that because the trial court found that they “gave [the] defendants a check for $100 as some sort of deposit for the $30,000 cash payment contemplated in the discussions [about the possible sale of the land]” and also found that the defendants retained the money, it could not reasonably have concluded that an oral contract for the sale of the parcel was not formed.

The language relied on by the plaintiffs could, as they claim, be interpreted as a finding by the trial court that the $100 constituted partial payment for the land, and such a finding could support an inference that there was an oral sales contract between the parties. The trial court’s finding is not, however, so inclusive as to mandate that inference. The court did not, for example, find that the defendants accepted the $100 as a deposit, but found only that the plaintiffs gave it as a deposit. Merely because the plaintiffs thought that an agreement had been reached, and that the $100 would serve as partial consideration for that agreement, does not mean that the defendants had the same understanding when they accepted the money. Additionally, the court’s statement could be read to mean something entirely different from the interpretation urged by the plaintiffs. For example, by characterizing the $100 as “some sort of deposit,” the court may have been trying to indicate that the parties created an option, not a final contract.

Given the ambiguous character of the trial court’s language we can only speculate as to its meaning. We will not, on the basis of such speculation, say that the court’s clear finding that no contract was formed is one it could not reasonably have made. Hughes v. Contemporary Mission, Inc., 180 Conn. 150, 152, 429 A.2d 827 (1980). We are especially unwilling to do so since that finding is amply supported by the court’s findings that the plaintiffs moved into the house and began working on it before giving the defendants the $100, that the plaintiffs never paid the real estate property taxes nor the fire insurance premiums, and that while at least two drafts of a contract for the sale of the parcel were written, none was executed. In these circumstances, we see no basis for disturbing the court’s finding that no contract was made.

We now turn to the plaintiffs’ claim that the trial court erred in finding that they were not entitled to recover under a theory of unjust enrichment. “Unjust enrichment is a legal doctrine to be applied when no remedy is available pursuant to a contract. 5 Williston, Contracts (Rev. Ed.) § 1479. In order for the plaintiffs] to recover under the doctrine, it must be shown that the defendants were benefited, that the benefit was unjust in that it was not paid for by the defendants, and that the failure of payment operated to the detriment of the plaintiff s].” A & C Corporation v. Pernaselci, 2 Conn. App. 264, 265, 477 A.2d 166 (1984).

Here, there was no finding that the defendants were benefited by the plaintiffs’ actions. The trial court found that the improvements to the property made by the plaintiffs increased the value of the property $9500 minus that portion of the increase which was caused by the paving of a concrete patio, an improvement that was neither made by nor paid for by the plaintiffs. The court expressly stated that it could not be determined from the evidence the extent to which the increase was caused by the plaintiffs’ activities and the extent to which it was caused by the paving. Although it appears unlikely that the entire $9500 increase resulted from the paving, we have no basis on the record for reaching a conclusion that it was not. Accordingly, the plaintiffs did not meet their burden of showing that their actions benefited the defendants. See Nicastro Associates, Inc. v. C. F. Wooding Co., 5 Conn. App. 244, 249, 497 A.2d 1020 (1985). While the trial court did not reach its decision on this ground, we may, of course, sustain its judgment on different bases than those it employed. Groton v. Commission on Human Rights & Opportunities, 169 Conn. 89, 101, 362 A.2d 1359 (1975).

There is no error.

In this opinion the other judges concurred.

       The defendants assert that the claim of error should not be reviewed because the plaintiffs never amended their complaint to include a count of unjust enrichment. While the defendants are correct that as a general principle a plaintiff’s right to recover is limited to the allegations of his complaint; Matthews v. F.M.C. Corporation, 190 Conn. 700, 705, 462 A.2d 376 (1983); the trial court noted in its memorandum of decision that the case was tried on a theory of unjust enrichment. We review the case on the theory on which it was tried and decided by the trial court. Fuessenich v. DiNardo, 195 Conn. 144, 151, 487 A.2d 514 (1985).

       While the plaintiffs did move for and receive an articulation on certain aspects of the trial court's decision, they did not ask the court to clarify this portion of its decision. Accordingly, the plaintiffs did not meet their burden of providing a record adequate to show that the trial court erred. In re Juvenile Appeal (85-1), 3 Conn. App. 158, 161, 485 A.2d 1355 (1985).

       The trial court did state in its memorandum of decision that it “would find for the plaintiffs in the sum of $9,500.00 if this case met the guidelines for an unjust enrichment award.” The court, however, also clearly-stated that because it found “a substantial amount of Roger Menard’s testimony not credible [it could not] arrive at a dollar value for the work he and the others did on the property.”

       Even if the plaintiffs had met their burden of showing that their actions benefited the defendants, we would not have found in their favor. “[A] claim [of unjust enrichment] must be adjudicated ‘[w]ith no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable.’ Cecio Bros., Inc. v. Greenwich, 156 Conn. 561, 564-65, 244 A.2d 404 (1968).” Montanaro Bros. Builders, Inc. v. Snow, 190 Conn. 481, 489, 460 A.2d 1297 (1983). The trial court determined that the plaintiffs moved into the defendants’ house without permission, lived there rent free for approximately two years, and made alterations to the house without the defendants’ knowledge or permission. Given these findings, coupled with the court’s findings that the plaintiffs’ sole intent was to benefit themselves if they were able to persuade the defendants to sell, we cannot say that “justice requires compensation to be made.” Brighenti v. New Britain Shirt Corporation, 167 Conn. 403, 407, 356 A.2d 181 (1974).

       The plaintiffs claim, in a footnote in their brief, that the defendants made certain allegations in their special defenses and counterclaims which, in essence, amount to an admission that they gave the plaintiffs permission to make improvements on the property. The plaintiffs did not, however, argue this claim but merely made a bald assertion that “[t]he trial court should have held the Defendants’ allegations binding on them.” “Assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court.” Rodriguez v. Mallory Battery Co., 188 Conn. 145, 149, 448 A.2d 829 (1982).


text:
    State of Connecticut v. James R. DelVecchio
    (2786)
    Hull, Spallone and Daly, Js.
    Argued January 15 —
    decision released April 29, 1986

      Suzanne Zitser, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      StevenM. Sellers, deputy assistant state’s attorney, with whom, on the brief, were Mary Galvin and John M. Massameno, assistant state’s attorneys, for the appellee (state).
   Daly, J.

The defendant was convicted by a jury of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4). On appeal, the defendant claims that the trial court erred (1) in permitting the state to impeach him by the use of a prior robbery conviction, (2) in instructing the jury concerning the testimony of the.defendant’s alibi witnesses, and (3) in denying the defendant’s request to personally address the jury along with his counsel during the closing argument.

The jury found the following facts. On May 9,1978, while William Kopf and Mischelle Bennett were employed at the self-service Xtra Gas Station on Washington Avenue in North Haven, a white male walked on to the station grounds and entered the station booth at about 9 p.m. After using the pay phone, he brandished what appeared to be a handgun and said “give me all the money.” The robber proceeded to stuff into his pocket the money from the register and the contents of a drop envelope used to deposit cash in $100 increments into a floor safe. The North Haven police department was notified and the police arrived within minutes. Both employees provided the police with virtually identical descriptions of the perpetrator. Kopf identified the defendant from an array of six photographs while Bennett selected two of them, including the defendant’s, as resembling the robber. The defendant was arrested approximately two months later.

The defendant first claims that the trial court erred in denying his motion in limine in which he sought to prevent his impeachment by the use of his prior conviction for conspiracy to commit robbery in the first degree. The defendant maintained that the probative value of this evidence on the issue of credibility was far outweighed by the risk of unfair prejudice.

We look to certain established guidelines for direction in ruling on a motion in limine. “There is, of course, no per se rule prohibiting impeachment of a defendant by proof of a prior conviction of a crime similar to that for which he is being tried when that prior conviction is offered to attack his credibility.” State v. Binet, 192 Conn. 618, 622, 473 A.2d 1200 (1984). “It is well established that when a defendant takes the stand and testifies in his own behalf he may be cross-examined concerning prior convictions for the purpose of impeaching his credibility as a witness in the same manner as any other witness.” State v. Marquez, 160 Conn. 47, 52-53, 273 A.2d 689 (1970).

Evidence of prior criminal convictions of a criminal defendant is generally not admissible. State v. Amaral, 179 Conn. 239, 244, 425 A.2d 1293 (1979); McCormick, Evidence (2d Ed. 1972) § 190, An exception to this general rule, however, allows the state, in particular situations, to introduce evidence of a criminal defendant’s prior convictions for the purpose of impugning the credibility of his testimony after the defendant has testified. General Statutes § 52-145; State v. Geyer, 194 Conn. 1, 6, 480 A.2d 489 (1984). Section 52-145 (a) provides in pertinent part that “[a] person shall not be disqualified as a witness in any action because of . . . his interest in the outcome of the action as a party or otherwise ... or ... his conviction of a crime.” Subsection (b) of that section provides further that “[such] interest in the outcome . . . or his conviction of crime may be shown for the purpose of affecting his credibility.”

It has been established that if a defendant testifies and, afterward, evidence of a prior conviction is offered on the issue of credibility in a criminal trial, its admissibility should then be determined by the exercise of a sound judicial discretion in which probative and prejudicial value are weighed. State v. Geyer, supra, 11; State v. Nardini, 187 Conn. 513, 521-22, 447 A.2d 396 (1982); State v. Marquez, supra, 53. “Every reasonable presumption in favor of its correctness must be made.” State v. Hamele, 188 Conn. 372, 383, 449 A.2d 1020 (1982). The danger of unfair prejudice is far greater when the accused, as opposed to other witnesses, testifies, because the jury may be prejudiced on the ultimate question of guilt or innocence and not merely on the issue of credibility. State v. Binet, supra, 623. “Where the prior crime is quite similar to the offense being tried, a high degree of prejudice is created and a strong showing of probative value would be necessary to warrant admissibility.” State v. Nardini, supra, 522.

Prior convictions which are admissible for purposes of impeachment have been divided in two categories: (1) those crimes which by their nature indicate a disposition toward dishonesty or a tendency to make false statements, which include the obvious violations such as perjury and false statement, but which also include, more recently, crimes involving larcenous intent; and (2) those crimes which do not reflect directly on the credibility of one who has been convicted of them. State v. Schroff, 3 Conn. App. 684, 687, 492 A.2d 190 (1985). “A prior conviction of robbery with violence is inextricably interwoven with the crime of larceny and implies a lack of veracity. It, therefore, is directly relevant to a determination of the credibility of a defendant-witness.” State v. Kuritz, 3 Conn. App. 459, 461, 489 A.2d 1053 (1985); State v. Geyer, supra, 15-16 n.9. The court, therefore, did not conclude, unreasonably, that these convictions were probative of the defendant’s credibility to an extent sufficient to outweigh the prejudice arising from the similarity of these crimes to the robbery charge in this case. State v. Carter, 189 Conn. 631, 643, 458 A.2d 379 (1983).

“In moving to bar introduction of prior convictions a defendant in a criminal case bears the burden of demonstrating the specific harm that will occur if the convictions are introduced. . . . Here, the record indicates that the defendant’s argument in support of his motion amounted to little more than a perfunctory recitation of the prior conviction, a conclusory statement as to its prejudicial effect, and a request for a ruling.” State v. Braswell, 194 Conn. 297, 308, 481 A.2d 413 (1984), cert. denied, 469 U.S. 1112, 105 S. Ct. 793, 83 L. Ed. 2d 786 (1985). In his motion in limine, the defendant had the burden to demonstrate, but failed to do so, the nature of the prejudice that would have entitled him to a ruling in his favor. State v. Binet, supra, 624.

The defendant next claims that since the court had previously charged on the credibility of witnesses, it was error specifically to charge on the credibility of the defendant’s alibi witnesses. It has been held that a defendant is entitled to have the jury correctly and adequately instructed. State v. Stepney, 191 Conn. 233, 247, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984). In assessing any portion of a jury’s charge, the test is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. The charge must be read as a whole and individual instructions should not be judged in isolation from the overall charge. Id. The court’s instructions, read as a whole, were fair and balanced, and the instruction on the credibility of witnesses was well within the court’s discretion. Id., 248.

The defendant finally claims that he was denied the right to hybrid representation as afforded by article first, § 8 of the Connecticut constitution when the court denied his request to share with his attorney part of the time allotted to him for closing argument. An arrangement of hybrid representation involves the joint presentation of a defense by a defendant and his counsel. In State v. Gethers, 197 Conn. 369, 382-94, 497 A.2d 408 (1985), our Supreme Court held that article first, § 8 of the Connecticut constitution does not guarantee the right of hybrid representation.

There is no error.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. General Statutes § 51-199 (c).

       The constitution of Connecticut, article first, § 8, provides in pertinent part that “[i]n all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel . . . .”


text:
    Oakland Heights Mobile Park, Inc. v. Wilfred Lemieux et al.
    (3949)
    Dupont, C. J., Borden and Daly, Js.
    Argued April 8 —
    decision released April 29, 1986

      Michael A. Blanchard, for the appellants (defendants).

      Edward E. Moukawsher, for the appellant (plaintiff).
   Per Curiam.

There is no error.