text:
    Dominic Vincenzo v. Warden, State Prison
    (9593)
    Dupont, C. J., Nokcott and Heiman, Js.
    Argued September 19
    decision released November 12, 1991

      David L. Kent, for the appellant (petitioner).

      L. D. McCollum, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (respondent).
   Norcott, J.

This is an appeal from the dismissal of a habeas corpus petition that requires this court to explore the outer limits of jurisdiction relative to the ephemeral and complex boundaries of the Great Writ.

The petitioner claims that the habeas court improperly dismissed his petition because it failed to find that the state board of parole is subject to the rule-making provisions of the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq. The habeas court dismissed the petition upon determining that the petitioner’s claimed right to parole was not an interest sufficient to give rise to habeas relief. While the petitioner urges that we reach the merits of his claim, at oral argument we questioned counsel about the issue of the habeas court’s jurisdiction over the subject matter. We must resolve this issue before reaching the merits of this appeal. This court has jurisdiction to determine whether a trial court had jurisdiction. Drake v. Planning & Zoning Commission, 14 Conn. App. 583, 541 A.2d 1251 (1988) (en banc). Because we conclude that no liberty interest was implicated by the petitioner’s claim, the habeas court lacked jurisdiction over the subject matter. That court, therefore, properly dismissed the petition.

The pertinent facts are undisputed. The petitioner was convicted of murder in 1974 and sentenced to a term of imprisonment of twenty years to life. In 1977, he was sentenced to a consecutive term of one to four years for conspiring to bring unauthorized items into a penal institution. On August 25, 1986, the parole board conducted a hearing to determine whether the petitioner should be paroled to the consecutive sentence. At the time of the hearing, the board was operating under its own procedures and regulations, which had not been submitted to the state attorney general and the legislature for approval prior to implementation. General Statutes §§ 4-169 and 4-170. The board denied the petitioner release and gave him written notice of the reasons for its decision. The petitioner then sought a writ of habeas corpus, alleging that his confinement is illegal because the board’s regulations do not conform to the requirements for rule-making that it must follow as a state agency pursuant to the UAPA. After a trial to the court on March 27, 1989, the petition was dismissed on May 11,1990. This appeal followed.

The issue presented to this court requires us to determine whether a prisoner’s challenge to the parole board’s failure to adopt regulations pursuant to the UAPA constitutes a cognizable claim of illegal detention that gives the habeas court jurisdiction over the subject matter. Jurisdiction over the subject matter is the court’s power to hear and decide cases of the general class to which the proceedings at issue belong. Gurliacci v. Mayer, 218 Conn. 531, 542, 590 A.2d 914 (1991); LeConche v. Elligers, 215 Conn. 701, 709, 579 A.2d 1 (1990); Castro v. Viera, 207 Conn. 420, 427, 541 A.2d 1216 (1988); Shea v. First Federal Savings & Loan Assn. of New Haven, 184 Conn. 285, 288, 439 A.2d 997 (1981). A court has subject matter jurisdiction if it has the authority to hear a particular type of legal controversy. This jurisdiction relates to the court’s competency to exercise power. Castro v. Viera, supra; State v. Malkowski, 189 Conn. 101, 105-106, 454 A.2d 275 (1983); Monroe v. Monroe, 177 Conn. 173, 185, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979).

Unlike jurisdiction over the person, subject matter jurisdiction cannot be created through consent or waiver. Castro v. Viera, supra, 429-30; United States Trust Co. v. Bohart, 197 Conn. 34, 39, 495 A.2d 1034 (1985); Hayes v. Beresford, 184 Conn. 558, 562, 440 A.2d 224 (1981); State v. Jones, 166 Conn. 620, 627, 353 A.2d 764 (1974); Reed v. Reincke, 155 Conn. 591, 598, 236 A.2d 909 (1967). Once the question of lack of jurisdiction of a court is raised, “ ‘[it] must be disposed of no matter in what form it is presented.’ ” Carten v. Carten, 153 Conn. 603, 610, 219 A.2d 711 (1966); Castro v. Viera, supra, 429; Monroe v. Monroe, supra, 177; Browning v. Steers, 162 Conn. 623, 625, 295 A.2d 544 (1972). The court must “fully resolve it before proceeding further with the case.” Castro v. Viera, supra, quoting Valley Cable Vision, Inc. v. Public Utilities Commission, 175 Conn. 30, 32, 392 A.2d 485 (1978); Gurliacci v. Mayer, supra, 545; Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 245, 558 A.2d 986 (1989); Gimbelv. Gimbel, 147 Conn. 561, 566, 163 A.2d 451 (1960). Whenever a court finds that it has no jurisdiction, it must dismiss the case, without regard to previous rulings. Pet v. Department of Health Services, 207 Conn. 346, 351, 542 A.2d 672 (1988); Cahill v. Board of Education, 198 Conn. 229, 238, 502 A.2d 410 (1985); Chzrislonk v. New York, N.H. & H. R. Co., 101 Conn. 356, 358, 125 A. 874 (1924).

We begin by taking note of the basic purpose underlying what is one of the most extraordinary and unique legal remedies “in the procedural armory of our law.” Brown v. Allen, 344 U.S. 443, 512, 73 S. Ct. 397, 97 L. Ed. 469 (1953). Although it is true that the United States Supreme Court “has not 'always followed an unwavering line in its conclusions as to the availability of The Great Writ’ ”; McClesky v. Zant, 499 U.S. , 111 S. Ct. 1454, 113 L. Ed. 2d 517 (1991), quoting Fay v. Noia, 372 U.S. 391, 411-12, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963); from the time the writ originated in seventeenth century England, its central purpose has been to test the legality of detention. English legislation and common law have been recognized by the United States Supreme Court as authoritative guides in applying the writ in the federal courts. McNally v. Hill, 293 U.S. 131, 136-37, 55 S. Ct. 24, 79 L. Ed. 238 (1934), overruled on other grounds, Peyton v. Rowe, 391 U.S. 54, 88 S. Ct. 1549, 20 L. Ed. 2d 426 (1968).

In applying federal habeas statutes, the United States Supreme Court has said that ‘[t]he purpose of the proceeding defined by the statute was to inquire into the legality of the detention .... There is no warrant in either the statute or the writ for its use to invoke judicial determination of questions which could not affect the lawfulness of the custody and detention, and no suggestion of such a use has been found in the commentaries on the English common law.” McNally v. Hill, supra; see also Engle v. Isaac, 456 U.S. 107, 136, 102 S. Ct. 2286, 73 L. Ed. 2d 83 (1982) (Stevens, J., concurring in part and dissenting in part) (relief available to a prisoner only if he is held in custody in violation of the constitution or laws or treaties of the United States); Preiser v. Rodriguez, 411 U.S. 475, 484, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973) (“[i]t is clear, not only from the language of [the federal habeas statutes], but also from the common-law history of the writ, that the essence of habeas corpus is an attack by a person in custody upon the legality of that custody”); Fay v. Noia, supra, 402 (writ’s “root principle is that in a civilized society, government must always be accountable to the judiciary for a man’s imprisonment: if the imprisonment cannot be shown to conform with the fundamental requirements of law, the individual is entitled to his immediate release”); H. Hart and H. Wechsler, The Federal Courts and the Federal System (3d Ed.) 1468 (“Great Writ always serves the function of precipitating a judicial inquiry into a claim of illegality in the petitioner’s detention for the purpose of commanding his release, or other appropriate disposition.”); P. Bator, “Finality in Criminal Law and Federal Habeas Corpus for State Prisoners,” 76 Harv. L. Rev. 441, 444-45 (1963) (“[i]ts function, in the great phrase, is to test ‘the legality of the detention of one in the custody of another’ ”); accord Allen v. McCurry, 449 U.S. 90, 98 n.12, 101 S. Ct. 441, 66 L. Ed. 2d 308 (1980).

The history of our own jurisprudence is wholly in accord with these principles. “Habeas corpus provides a special and extraordinary legal remedy for illegal detention.” Reed v. Reincke, supra, 594; McClain v. Robinson, 189 Conn. 663, 668, 457 A.2d 1072 (1983); In re Juvenile Appeal (Docket No. 9208), 184 Conn. 157, 167, 439 A.2d 958 (1981); Mayock v. Superintendent, 154 Conn. 704, 705, 224 A.2d 544 (1966) (per curiam); Wojculewicz v. Cummings, 143 Conn. 624, 627, 124 A.2d 886 (1956); Bissing v. Turkington, 113 Conn. 737, 740, 157 A. 226 (1931). The deprivation of legal rights is essential before the writ may be issued. McPheters v. Pollard, 146 Conn. 509, 510, 152 A.2d 632 (1959). “ ‘Questions which do not concern the lawfulness of the detention cannot properly be reviewed on habeas corpus.’ ” Sanchez v. Warden, 214 Conn. 23, 33, 570 A.2d 673 (1990), quoting Flaherty v. Warden, 155 Conn. 36, 40, 229 A.2d 362 (1967). When a habeas petition is properly before a court, the remedies it may award depend on the constitutional rights being vindicated. Gaines v. Manson, 194 Conn. 510, 516, 481 A.2d 1084 (1984). Further, any remedy must be commensurate with the scope of the constitutional violations that have been established. Id., 528.

The gravamen of the petitioner’s claim is that his confinement is illegal because the parole board operates in violation of the UAPA’s rule-making provisions. For this type of claim of illegal detention to be cognizable in a habeas action, however, the petitioner would, at the very least, have to have some constitutional or statutorily created liberty interest in parole release. In Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979), and Board of Pardons v. Allen, 482 U.S. 369, 107 S. Ct. 2415, 96 L. Ed. 2d 303 (1987), the Supreme Court determined when such liberty interests arise and when they do not in the context of parole-release proceedings.

“In Greenholtz the Court held that, despite the necessarily subjective and predictive nature of the parole-release decision . . . state [parole-release] statutes may create liberty interests in parole release that are entitled to protection under the Due Process Clause.” Board of Pardons v. Allen, supra, 371. The court also held that the mere “presence of a parole system by itself does not give rise to a constitutionally protected liberty interest in parole release.” Id., 373. “The Nebraska statute involved in Greenholtz provides as follows: ‘Whenever the Board of Parole considers the release of a committed offender who is eligible for release on parole, it shall order his release unless it is of the opinion that his release should be deferred because: (a) There is a substantial risk that he will not conform to the conditions of parole; (b) His release would depreciate the seriousness of his crime or promote disrespect for law; (c) His release would have a substantially adverse effect on institutional discipline; or (d) His continued correctional treatment, medical care, or vocational or other training in the facility will substantially enhance his capacity to lead a law-abiding life when released at a later date.’ Neb. Rev. Stat. § 83-1, 114 (1) (1981) (emphasis added).” Board of Pardons v. Allen, supra, 374. The statute also lists fourteen factors the Nebraska parole board must consider in reaching a decision. Id. In finding an infrangible liberty interest, “the Court found significant [the statute’s] mandatory language—the use of the word ‘shall’—and the presumption created—that parole release must be granted unless one of four designated justifications for deferral is found.’’(Emphasis added.) Id., citing Greenholtz v. Nebraska Penal Inmates, supra, 11-12.

Similarly, in Board of Pardons v. Allen, the court found that the state of Montana’s parole statute also gives rise to a liberty interest in parole release based on its use of the “mandatory language (‘shall’) to ‘creat[e] a presumption that parole release will be granted’ when the designated findings are made.” Id., 377-78, citing Greenholtz v. Nebraska Penal Inmates, supra, 12. The court also noted that both the Montana statute in Allen and the Nebraska statute in Greenholtz contained the “substantive predicates” of parole release. Board of Pardons v. Allen, supra, 379, citing Hewitt v. Helms, 459 U.S. 460, 472, 103 S. Ct. 864, 74 L. Ed. 2d 675 (1983). Both statutes require an assessment of the effect of release on the inmate and the community, with the focal point being on whether the prisoner can live in society according to law. Board of Pardons v. Allen, supra, 379-80.

In deciding whether our parole statute, § 54-125, also gives rise to a protected liberty interest in parole release, we scrutinize it under the standards set forth in Greenholtz. We note at the outset that § 54-125 states that an inmate “may be allowed to go at large in the discretion of the panel of the board of parole for the institution in which the person is confined, if (1) . . . there is reasonable probability that such inmate will live and remain at liberty without violating the law and (2) such release is not incompatible with the welfare of society.” (Emphasis added.) Although § 54-125 is similar to the statutes at issue in Greenholtz and Allen in that it, too, contains the “substantive predicates” of parole release, it is unmistakably distinguishable.

Our statute contains no language providing that an inmate shall be released if the two statutory criteria are met. It vests broad discretion in the judgment of the parole board. The statute does not give an inmate any right to demand or even apply for parole. It does not require that a parole board actually consider any inmate’s eligibility for parole, even if he has fulfilled the statute’s two requirements. “The only statutory limits upon the discretion of the board of parole are the requirement that the inmate serve his minimum sentence, that it appear that the inmate will remain at liberty without violating the law, and that the release of the inmate not be incompatible with the welfare of society.” Taylor v. Robinson, 171 Conn. 691, 697-98, 372 A.2d 102 (1976). Our analysis is consistent with our Supreme Court’s view in McLaughlin v. Bronson, 206 Conn. 267, 271, 537 A.2d 1004 (1988), that our commutation statute, § 18-26, “creates no right or entitlement that may be claimed by any prison inmate . . . and [bears] no mandates giving rise to a duty to commute a sentence or grant a pardon, or creating a constitutional entitlement to an exercise of clemency.” (Citations omitted.) Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 466-67, 101 S. Ct. 2460, 69 L. Ed. 2d 158 (1981).

Similar claims against the United States Board of Parole also have proven to be unavailing. In dismissing a habeas challenge to that board’s parole release process as violative of the federal Administrative Procedure Act; 5 U.S.C. 701 et seq. (A.P.A.), the United States Court of Appeals for the Fifth Circuit acknowledged that if the parole board is subject to the A.P.A., then its procedures must comport with those required by the act. Brown v. Lundgren, 528 F.2d 1050, 1053 (5th Cir.), cert denied, 429 U.S. 917, 97 S. Ct. 308, 50 L. Ed. 2d 283 (1976). The Fifth Circuit held, however, that “a prisoner challenging the decision of the board or the process by which that decision was reached must show that the action of the board was so unlawful as to make his custody in violation of the laws of the United States. There must be a sufficient nexus between the allegedly illegal action and the legality of his custody for habeas corpus to lie. A prisoner has no right to release on parole; he has only a statutory right to have the board comply with the A.P.A. and its own rules and guidelines. A departure by the board does not necessarily make his custody illegal.” Id., 1054-1055.

In light of these factors, we hold that § 54-125 also creates no protected constitutional or statutory liberty interest in parole release that gives rise to a claim of illegal confinement in a habeas action. Although the petitioner alleged that his confinement was illegal because the parole board did not adhere to the UAPA’s procedures for rule-making, no such liberty interest can arise. The habeas court therefore lacked subject matter jurisdiction. Indeed, it would be utterly incongruous to dismiss an inmate’s habeas petition for lack of any right or entitlement to commutation, as in McLaughlin v. Bronson, supra, while on the other hand permitting a habeas challenge to a parole proceeding by that same inmate, now armed with a protected liberty interest. That the petitioner in this case does not challenge the propriety of his convictions only heightens the absurdity of his claim: One lawfully convicted of a crime, lacking any protected liberty interest in parole release, may nevertheless win his freedom by asserting in a habeas action that his confinement has been made illegal because a parole board allegedly failed to promulgate regulations in accordance with state law. In this respect, the action before us today is not unlike Nash v. Reincke, 156 Conn. 339, 346-47, 240 A.2d 877, cert. denied, 393 U.S. 884, 89 S. Ct. 192, 21 L. Ed. 2d 159 (1968), where our Supreme Court held that intrastate transfer of an inmate from one prison to another does not constitute illegal detention so as to warrant release. To expand the boundaries of habeas jurisdiction by recognizing a claim such as the one before us today would swallow the writ’s central purpose and, as Justice Jackson warned nearly four decades ago, sanction its “progressive trivialization” with even further “farfetched or borderline petitions.” Brown v. Allen, supra, 536 (Jackson, J., concurring in the result).

Since it is clear that an inmate has no liberty interest in or right to parole release, it follows a fortiori that he cannot invoke a court’s subject matter jurisdiction in a habeas action by claiming his confinement is illegal based on a parole board’s failure to adhere to rule-making procedures. Unless a liberty interest in parole exists, the procedures followed in the parole determination are not required to comport with standards of fundamental fairness. Brandon v. District of Columbia Board of Parole, 823 F.2d 644, 648 (D.C. Cir. 1987); Slocum v. Georgia State Board of Pardons & Paroles, 678 F.2d 940, 942 (11th Cir.), cert. denied, 459 U.S. 1043, 103 S. Ct. 462, 74 L. Ed. 2d 612 (1982). The petitioner’s contention that he has a right to parole release because the board failed to adhere to the UAPA’s rule-making provisions is utterly lacking in support, in either law or logic, and is “analytically indefensible.” Shango v. Jurich, 681 F.2d 1091, 1100 (7th Cir. 1982); Brandon v. District of Columbia Board of Parole, supra, 648; accord Taylor v. Robinson, supra, 698-99.

While we remain mindful of the unique and critically important role of habeas corpus in our jurisprudence, we cannot permit litigants who have no cognizable claim of illegal detention to leapfrog into court by ignoring the threshold element of a habeas action in order to surmount our jurisdictional requirements.

The judgment is affirmed.

In this opinion the other judges concurred.

       Discussing the difficulties in defining the scope of habeas, Justice Frankfurter noted that “the writ has potentialities for evil as well as for good. . . . The circumstances and conditions for bringing into action a legal remedy having such potentialities obviously cannot be defined with a particularity appropriate to legal remedies of much more limited scope. To attempt rigid rules would either give spuriously concrete form to wide-ranging purposes or betray the purposes by strangulating rigidities. . . . The fact that we cannot formulate rules that are absolute or of a definiteness almost mechanically applicable does not discharge us from the duty of trying to be as accurate and specific as the nature of the subject permits.” Brown v. Allen, 344 U.S. 443, 512-13, 73 S. Ct. 397, 97 L. Ed. 469 (1953).

       Although the Supreme Court in Peyton rejected McNally’s view of “custody,” commentators have observed that “the link between the writ and restraints on liberty has never been severed.” L. Yackle, “Explaining Habeas Corpus,” 60 N.Y.U. L. Rev. 991, 999 n.26 (1985).

       28 U.S.C. § 2241 et seq.

       Although some of our courts have expanded the scope of prisoners’ claims that are cognizable in a habeas action, the well established precepts of illegal detention and deprivation of constitutional rights remain the touchstones of jurisdiction. See, e.g., Schaffer v. Steinert, 40 Conn. Sup. 251, 252, 490 A.2d 555 (1985) (doubt may be cast on the legality of confinement when there is a deprivation of constitutional rights); Ciaramelia v. Brownell, 35 Conn. Sup. 117, 118, 399 A.2d 843 (1978) (“the only rights with which the court is concerned are those founded in the constitution or thought to be of a substantial character”); Dukuly v. Warden, 34 Conn. Sup. 88, 93, 377 A.2d 1344 (1977) (“[i]f the nonjudgmental aspects of restraint lead to restraint that has unconstitutional qualities and properties, a question is raised as to the legality of the detention”).

       The Montana statute provides in pertinent part: “ ‘Prisoners eligible for parole. (1) Subject to the following restrictions, the board shall release on parole . . . any person confined in the Montana state prison or the women’s correction center . . . when in its opinion there is reasonable probability that the prisoner can be released without detriment to the prisoner or to the community ....
      “(2) A parole shall be ordered only for the best interests of society and not as an award of clemency or a reduction of sentence or pardon. A prisoner shall be placed on parole only when the board believes that he is able and willing to fulfill the obligations of a law-abiding citizen.’ Mont. Code Ann. § 46-23-201 (1985) (emphasis added).” Board of Pardons v. Allen, 482 U.S. 369, 376-77, 107 S. Ct. 2415, 96 L. Ed. 2d 303 (1987).

       The United States Supreme Court has noted that “statutes or regulations that provide that a parole board ‘may’ release an inmate on parole do not give rise to a protected liberty interest. See Dace v. Mickelson, 797 F.2d 574, 576 ([8th Cir.] 1986) (South Dakota statute); Parker v. Corrothers, [750 F.2d 653, 657 (8th Cir. 1984)] (Arkansas statute); Gale v. Moore, 763 F.2d 341, 343 ([8th Cir.] 1985) (amended Missouri statute); Dock v. Latimer, 729 F.2d 1287, 1288 ([10th Cir.] 1984) (Utah statute); Irving v. Thigpen, 732 F.2d 1215, 1216 ([5th Cir.] 1984) (Mississippi statute); Candelaria v. Griffin, 641 F.2d 868, 869 ([10th Cir.] 1981) (New Mexico statute); Williams v. Briscoe, 641 F.2d 274, 276 ([5th Cir.]) (Texas statute), cert. denied, 454 U.S. 854 [102 S. Ct. 299, 70 L. Ed. 2d 147] (1981); Schuemann v. Colorado State Board of Adult Parole, 624 F.2d 172, 174 ([10th Cir.] 1980) (Colorado statute); Shirley v. Chestnut, 603 F.2d 805, 806-807 ([10th Cir.] 1979) (Oklahoma statute); Wagner v. Gilligan, 609 F.2d 866, 867 ([6th Cir.] 1979) (Ohio statute).” Board of Pardons v. Allen, 482 U.S. 369, 379 n.10, 107, S. Ct. 2415, 96 L. Ed. 2d 303 (1987); see also Brandon v. District of Columbia Board of Parole, 631 F. Sup. 435, 439-40 (D.D.C. 1986), aff’d, Brandon v. District of Columbia Board of Parole, 823 F.2d 644 (D.C. Cir. 1987) (District of Columbia Code).


source: Caselaw Access Project

author: Norcott, J.

license: Public Domain

text:
    State of Connecticut v. Rodney Rembert
    (9693)
    O’Connell, Norcott and Heiman, Js.
    Argued September 27
    decision released November 12, 1991

      Marjorie Allen Dauster, deputy assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Linda Howe, assistant state’s attorney, for the appellant (state).

      Joseph G. Bruckman, assistant public defender, for the appellee (defendant).
   Norcott, J.

The state of Connecticut appeals, with the permission of the trial court, from the judgment of the court granting the defendant’s motion for acquittal after he was convicted by a jury of evading responsibility in violation General Statutes § 14-224 (a) and (d). The defendant also was convicted of one count of assault in the first degree in violation of General Statutes § 53a-59 (a) (1), one count of assault in the second degree in violation of General Statutes § 53a-60 (a) (2), and one count of reckless endangerment in the first degree in violation of General Statutes § 53a-63 (a). He was sentenced to a term of imprisonment of ten years, suspended after five, for a total effective sentence of five years imprisonment.

On appeal, the state offers a two-pronged attack on the trial court’s judgment. The state claims that the trial court improperly construed the term “accident” in § 14-224 to encompass only unintentional conduct. In the alternative, the state urges that even if the term “accident” means only unintentional conduct, sufficient evidence existed for the jury to find the defendant guilty and therefore the trial court should not have granted his motion for acquittal.

The facts relevant to this appeal are as follows. On June 3,1989, at about 9:30 p.m., the defendant and his girl friend, Elizabeth Marrero, became involved in a violent encounter with a group of teenagers outside a market on a Bridgeport street. During the incident, the defendant was able to get into his car, whereupon he drove it onto the sidewalk toward the teenagers. The youths ran onto a nearby porch, and the defendant’s car instead struck a five year old boy, Jason Marrero, and his mother, Emilia Rodriguez, who, along with Jason’s father, Miguel Ramirez, and other family members, was returning from dinner at a local pizzeria. The defendant then drove forward again, striking Jason and his mother a second time. The defendant was able to drive away despite an attempt by Jason’s father to prevent him from leaving. He did not stop to offer help, nor did he identify himself or report the incident to police.

The defendant testified that he had been stabbed and robbed by one of the teenagers before reaching his car. He testified that while inside the car he looked out and saw another youth pointing a gun at him, whereupon he ducked down and drove off to his mother’s house. He also testified that he did not become aware he had struck anyone until his girl friend told him so at his mother’s house. She persuaded him to go to a hospital for treatment, where he gave police a false identity and told them he had been robbed at a location other than the market.

As a result of the incident, Jason’s mother suffered back and knee injuries, and needed a crutch to walk for one month afterward. Jason suffered multiple compound leg fractures and needed six weeks of hospital care and several surgeries.

The state claims that the trial court improperly granted the defendant’s motion for acquittal on the basis of its interpretation of § 14-224 as being applicable only to unintentional conduct. Because we agree with the state’s alternative contention that, even under such an interpretation, sufficient evidence existed to find the defendant guilty, we need not engage in the exercise of defining the term “accident” within the meaning of the statute.

When reviewing claims of evidentiary sufficiency, this court employs a two part analysis. “First, we review the trial evidence, construing it in the most favorable manner reasonably possible to support the jury’s verdict. Second, we ascertain whether any jury could reasonably have concluded that the cumulative effect of the established evidence, and the inferences reasonably drawn from those evidentiary facts, established guilt beyond a reasonable doubt.” State v. Bowens, 24 Conn. App. 642, 646, 591 A.2d 433, cert. denied, 220 Conn. 906, 593 A.2d 97 (1991); State v. King, 216 Conn. 585, 600-601, 583 A.2d 896 (1990). Further, each essential element of the crime must be proven beyond a reasonable doubt. In re Winship, 397 U.S 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. King, supra; State v. Bowens, supra. The jury may not engage in speculation or conjecture, but may draw only reasonable, logical inferences from the proven facts. State v. King, supra; State v. Bowens, supra.

Here, based on the testimony at trial, ample evidence existed permitting the jury to find that the defendant drove his car at the teenagers, intending to injure them, and that he instead unintentionally struck Jason. Contrary to the requirements of § 14-224 (a), the defendant failed to stop and render assistance, and did not identify himself to anyone at the scene or report the incident to police. Because Jason suffered multiple compound leg fractures and needed extensive hospital care and repeated surgery, it is clear that the defendant caused “serious physical injury,” as contemplated by the statute. Moreover, since the defendant actually intended to strike the teenagers with the car, hitting Jason instead constituted an “accident” under any definition of the word. The evidence in this case was clearly sufficient to support the jury’s decision to convict.

The judgment granting the motion for acquittal is reversed and the case is remanded with direction to render judgment on the jury’s verdict of guilty of evading responsibility and to resentence the defendant in accordance with that conviction.

In this opinion the other judges concurred.

       General Statutes § 14-224 provides in pertinent part: “evasion of RESPONSIBILITY IN OPERATION OF MOTOR VEHICLES. RACING, (a) Each person operating a motor vehicle who is knowingly involved in an accident which causes serious physical injury, as defined in section 53a-3, to or results in the death of any other person shall at once stop and render such assistance as may be needed and shall give his name, address and operator’s license number and registration number to the person injured or to any officer or witness to the death or serious physical injury of any person . . . .”


author: Per Curiam.

text:
    James E. Hackett v. Suellen Hackett et al.
    (9663)
    Norcott, Foti and Landau, Js.
    Argued October 4
    decision released November 12, 1991

      M. J. Daly III, for the appellant (named defendant).

      Karen E. Souza, for the appellee (plaintiff).
   Per Curiam.

This is an appeal by the named defendant from a supplemental judgment of distribution in an action for partition by sale of real estate, rendered pursuant to General Statutes § 52-502 (b), in which the trial court ordered that the plaintiff be compensated out of the proceeds from the sale of the parties’ jointly owned property for his past payments for mortgage, insurance, taxes, improvements and repairs. The sole issue on appeal is whether the state trial referee correctly found the facts and applied them to the law as required by Vesce v. Lee, 185 Conn. 828, 441 A.2d 556 (1981).

Our examination of the record and the briefs, as well as the oral arguments presented to this court, persuades us that the state trial referee’s judgment was correct and should be affirmed. The trial court’s memorandum of decision thoughtfully and comprehensively addresses both the factual questions and the legal issue raised by the defendants. Hackett v. Hackett, 42 Conn. Sup. 36, 598 A.2d 1112 (1991). Because that memorandum of decision fully states and meets the arguments raised in the present appeal, we adopt the trial court’s well reasoned decision as a statement of the facts and the applicable law. It would serve no useful purpose for us to further address the discussion contained therein.

The judgment of the trial court is affirmed.

       In addition to the named defendant, the action originally also named as defendants First Federal Savings and Loan Corporation of New Haven and Household Finance Company, the holders of first and second mortgages. The action was withdrawn as to First Federal, and the mortgage to Household Finance was paid off during this action.

       General Statutes § 52-502 (b) provides: “On any such complaint, the court may appoint a committee to make the sale, who shall pay into court all proceeds therefrom. The proceeds from the sale, after deducting such reasonable costs and expenses as the court directs, shall be distributed by order of court among all persons interested in the property, in proportion to their interests.”

       The Vesce court held that when contributions of money to defray the costs of owning the real estate “ ‘were made for the joint benefit of both [parties] without expectation of reimbursement from the contributing parties’ . . . there is a presumption that when one party vacates the commonly owned family residence, future expenditures will continue to be made for the joint benefit of the cotenants. In other words, the single fact that the plaintiff vacated the family home, leaving the defendant in possession, was not sufficient to rebut the presumption that the parties intended that all expenditures made after the separation, even if only made by one of them, would continue to accrue for the benefit of both parties without any future accounting or contribution.” Vesce v. Lee, 185 Conn. 328, 336, 441 A.2d 556 (1981).


author: Landau, J.

text:
    State of Connecticut v. Robert Watson, Sr.
    (9142)
    Foti, Landau and Cretella, Js.
    Argued September 26
    decision released November 19, 1991

      John W. O’Meara, special public defender, for the appellant (defendant).

      Carolyn K. Longstreth, assistant state’s attorney, with whom were Elpedio Vitale, assistant state’s attorney and, on the brief, Michael Dearington, state’s attorney, for the appellee (state).
   Landau, J.

This is an appeal by the defendant, Robert Watson, Sr., from a judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70. On appeal, the defendant claims that the trial court (1) improperly permitted a state’s witness to testify as an expert, and (2) denied him his constitutional right to present a defense by excluding evidence to support his assertion that the victim falsely accused him of sexual assault. We disagree.

The jury could reasonably have found the following facts. The defendant first met the victim, the girl friend of his son, Robert Watson, Jr., in early November, 1988, soon after the defendant’s release from prison. The defendant and the victim began working together to raise bond money to secure Robert, Jr.’s release from prison. Shortly before Thanksgiving of that year, the defendant unexpectedly visited the victim at her apartment. An argument and physical struggle ensued. The defendant grabbed the victim’s wrists. She fell backwards; the defendant pinned her to the floor and sexually assaulted her. Afterward, the defendant instructed the victim to tell no one about what had just occurred, and threatened that if she did he would tell Robert, Jr., that they had been having an affair and would have her baby taken away from her. These threats continued over the course of the next few weeks.

The victim told Robert, Jr., about the sexual assault in early January, 1989, and, upon his urging, reported it to the Meriden police on January 8, 1989, approximately six weeks after the incident had occurred. When confronted by Robert, Jr., the defendant’s response was that he could not control himself because he had been away from “girls” for a long time. The defendant was subsequently arrested and charged with sexual assault in the first degree.

I

The defendant first claims that the trial court improperly permitted a state’s witness, Tina Haurd, to testify as an expert. The question of whether a witness is qualified as an expert is largely a matter within the trial judge’s discretion. State v. Kemp, 199 Conn. 473, 476, 507 A.2d 1387 (1986); State v. Ortiz, 198 Conn. 220, 228, 502 A.2d 400 (1985); 2 B. Holden & J. Daly, Connecticut Evidence (1988) § 118 (a). The general standard for admissibility of expert testimony in Connecticut is that the expert must demonstrate “ ‘a special skill or knowledge, beyond the ken of the average juror, that, as properly applied, would be helpful to the determination of an ultimate issue.’ ” Davis v. Margolis, 215 Conn. 408, 416, 576 A.2d 489 (1990), quoting Siladi v. McNamara, 164 Conn. 510, 513, 325 A.2d 277 (1973); see also State v. Spigarolo, 210 Conn 359, 376, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989); State v. Rodgers, 207 Conn 646, 651, 542 A.2d 1136 (1988); In re Noel, 23 Conn. App. 410, 423, 580 A.2d 996 (1990). An examination of the record reveals adequate evidence to support the trial court’s actions and we conclude that the trial court did not abuse its discretion in permitting the witness to provide an expert opinion.

The witness testified that she worked at the Women’s Center of Southeastern Connecticut as a victim’s advocate and as a counselor. As part of her job, she regularly attends court as an advocate for victims of domestic violence, counsels individuals and runs support groups for battered women and for survivors of physical and emotional abuse. Haurd further testified that she had been working with the battered women’s project for approximately one year and counseled approximately fifty to sixty people per week. She was then asked: “In your experience, is it unusual for there to be a delay between the actual rape and the reporting of that?” Defense counsel objected on the ground that a proper foundation had not yet been laid for the question. The trial court sustained the objection. Upon further examination, the witness testified that she has been working in her field for one year since receiving a bachelor’s degree in psychology from Connecticut College and “see[s] about sixty people a week.” She was again questioned regarding her opinion of the frequency in the occurrence of delay in reporting a sexual assault. The question was again objected to on the same ground as the previous objection. The objection was again sustained.

The jury was then excused and the state’s attorney attempted to qualify the witness as an expert “in treatment of battered women and attendant fields.” On voir dire, the witness testified that in addition to her college education, she has taken a course in counseling battered women at the New London Women’s Center and has counseled “around 300 women . . . about a third of [whom] . . . were victims of various types of sexual assault.” The trial court overruled defense counsel’s objection stating that the testimony goes to the weight of the witness’ opinion rather than to the admissibility. The trial court further found that the witness possessed knowledge superior to that of the average layperson and permitted the witness to respond to the question.

In light of the evidence adduced at trial, we conclude that the trial court did not abuse its discretion in permitting the witness to testify as she did. See State v. Sandberg, 406 N.W.2d 506, 511 (Minn. 1987) (admitting as expert testimony opinion of police officer that sexually abused children delay reporting incidents); State v. Hicks, 148 Vt. 459, 461-62, 535 A.2d 776 (1987) (witness with masters degree in social work and experience as caseworker with sexually abused children qualified to testify that it is common for victims to delay reporting).

II

The defendant’s second claim is that the trial court violated his right to present a defense by excluding evidence that Rozzda Eggleston, the defendant’s daughter, told Robert, Jr., that the victim and the defendant had discussed sex on the telephone. The state objected on grounds of hearsay arguing that the witness was told of this conversation by her mother, Karen Eggleston, who had overheard the conversation. The trial court sustained the state’s objection to this question, concluding that such testimony could not be introduced as an inconsistent statement, the purpose for which it was offered, because defense counsel had failed to ask Robert, Jr., during his testimony about the alleged conversation with Eggleston and thus there was nothing to contradict.

Later that same day, the defendant attempted to recall this witness. Defense counsel explained that he intended to offer her testimony regarding her conversation with Robert, Jr., not to prove the truth of the matter asserted therein, but rather to demonstrate that the conversation took place and its effect on the hearer, Robert, Jr. The court concluded that this evidence was irrelevant because defense counsel had failed to establish that Robert, Jr., and the victim had ever discussed either the telephone conversation between her and the defendant, or more generally, any sexual relationship between her and the defendant. We agree with the trial court.

The first criteria of admissibility is that the evidence must be relevant. “We have often stated that [e]vidence is admissible when it tends to establish a fact in issue or to corroborate other direct evidence in the case. . . . One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable.” (Internal quotation marks omitted.) State v. Alvarez, 216 Conn 301, 304, 579 A.2d 515 (1990). The trial court has broad discretion on questions of relevance. State v. Echols, 203 Conn. 385, 393, 524 A.2d 1143 (1987). Moreover, it is the court’s right and, indeed, its duty to exclude irrelevant evidence. State v. Daniels, 8 Conn. App. 190, 194, 512 A.2d 936 (1986). The party offering the evidence bears the burden of demonstrating the relevance of the evidence it seeks to introduce. State v. Franko, 199 Conn. 481, 487, 508 A.2d 22 (1986). While it is certainly true that the fifth amendment to the United States constitution, which guarantees a criminal defendant the right to present a defense, includes the right of the defendant to present witnesses on his behalf; Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967); an accused, in exercising this right, is still bound by the rules of evidence. State v. Kelly, 208 Conn. 365, 375-76, 545 A.2d 1048 (1988).

The jury is permitted to draw inferences from the evidence adduced at trial. State v. Weinberg, 215 Conn. 231, 255, 575 A.2d 1003 (1990). These inferences, however, must be reasonable. Id. Here, the inferences the defendant asks us to draw from the trial testimony, (1) that Robert, Jr., believed that the victim and the defendant were involved in a consensual sexual relationship, (2) that he confronted the victim with this belief, and (3) that the victim fabricated the sexual assault to placate him, are not reasonable in light of the testimony adduced at trial.

In order for the jury to draw such inferences regarding the victim’s motive to accuse the defendant falsely, the jury would necessarily have to find (1) that, as a result of Robert, Jr.’s conversation with Eggleston, he believed the victim was engaged in a sexual relationship with the defendant, (2) that Robert, Jr., was either jealous or upset by this information, (3) that Robert, Jr., confronted the victim with this information, (4) that the victim was motivated to dispel Robert, Jr.’s suspicions, and (5) that rather than offering Robert, Jr., an explanation for the conversation, she falsely accused the defendant of sexual assault. In the absence of any evidence to support such inferences, we find the defendant’s reasoning to be based on impermissible speculation. Because the defendant failed to fill the missing evidentiary link, he has failed in his burden to establish the reasonableness of the above inferences. We conclude that the evidence was properly excluded and that the defendant was not denied his constitutional right to present a defense.

The judgment of the trial court is affirmed.

In this opinion the other judges concurred.


author: Heiman, J.

text:
    George Lombardi v. City of Groton et al.
    (9741)
    Daly, Landau and Heiman, Js.

      Argued September 25
    decision released November 19, 1991

      Raymond L. Baribeault, Jr., with whom were Timothy D. Bates and, on the brief, Richard A. Schatz, for the appellants (defendants).

      Gilbert Shasha, with whom was Barry J. Ward, for the appellee (plaintiff).
   Heiman, J.

The defendants, David Bailey, Ronald Jenkins and Cindy Grenier, appeal from a judgment rendered on a verdict against them for compensatory and punitive damages. The action arose out of the plaintiffs allegations of excessive use of force in effecting his arrest, false arrest, extreme and outrageous conduct, a violation of his civil rights and unlawful restraint.

On appeal, the defendants assert that the trial court improperly (1) admitted into evidence prior acts of police misconduct on the part of the defendant Bailey when that evidence was extremely prejudicial and was not offered to impeach his credibility, which was the only basis upon which it could be admitted, (2) refused to admit evidence of the plaintiffs prior criminal record when it was offered to show bias, prejudice, habit or custom, and (3) refused to admit evidence of the plaintiffs prior criminal record on the issue of the plaintiffs claim of emotional damages, mental distress and humiliation. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. For several years, the plaintiff operated as a catering vendor in the vicinity of the Electric Boat Division of General Dynamics in Groton. On June 9,1987, at about 7:50 a.m., he was operating a catering truck near Electric Boat.

At that time, Grenier, Bailey and Jenkins were employed by the town of Groton as uniformed police officers and were patrolling the area surrounding Electric Boat. Grenier and Bailey were riding together in a marked police car when they stopped the plaintiffs vehicle. When the plaintiff stopped, he, Grenier and Bailey exited their vehicles. The plaintiff asked Bailey why he was being stopped, and Bailey told him that it was because he was not displaying an emissions sticker.

Bailey then asked the plaintiff to produce his license. When the plaintiff attempted to remove it from his wallet, Bailey slapped the wallet to the ground and shoved the plaintiff against his truck. At that time, Grenier and Jenkins, a third Groton police officer who had arrived át the scene, leaped into the fray and, with Bailey, threw the plaintiff to the ground and landed on top of him. Bailey then handcuffed the plaintiff, pulled him up, and put him in a police car. The plaintiff was then transported to the Groton police station. Upon arrival, Bailey threw the plaintiff against the steel plate of a cell. Later, the plaintiff was given a motor vehicle summons for having an expired emissions sticker. At no time was he advised of his constitutional rights.

As a consequence of the defendants’ conduct, the plaintiff suffered bruises and contusions to the lower back and legs and a fracture of the L3 transverse process of the lumbar spine, which caused physical pain and required medical treatment.

The plaintiff was arrested and charged with breach of peace, assault on a police officer, interfering with a police officer and engaging an officer in pursuit. After a jury trial, he was acquitted of all charges. The plaintiff subsequently commenced a civil action against the defendants based on their alleged excessive use of force in effecting his arrest, false arrest, extreme and outrageous conduct, violation of his civil rights and unlawful restraint.

The jury awarded the plaintiff $125,000 in compensatory damages against the defendants, and punitive damages of $400 against Grenier, $2400 against Bailey, and $1200 against Jenkins. In addition, the court awarded the plaintiff attorney’s fees of $35,731.25.

I

As stated in the statement of issues in their brief, the defendants first assert that the trial court incorrectly permitted “evidence of prior police misconduct on the part of the defendant Bailey to be presented to the jury when that evidence was extremely prejudicial to the defendant police officer and when that evidence was not offered to impeach the credibility or veracity of said defendant and when said evidence was not otherwise admissible under the applicable rules of evidence.” Because this issue was not properly preserved for appellate review, we do not reach the merits of this claim. Saradjian v. Saradjian, 25 Conn. App. 411, 418-19, 595 A.2d 890 (1991).

The trial transcript reveals that a conference was held in chambers during which the admissibility of evidence of a prior civil rights action against the defendant Bailey was discussed. The transcript further reveals that, upon returning to the courtroom, the trial court heard further argument on the issue, but the defendants’ counsel failed to state succinctly the grounds on which objection was made. Practice Book § 288. At the conclusion of the arguments, the trial court indicated that it would permit testimony concerning the prior case. The defendants took an exception.

Bailey was then called to the witness stand and testified concerning a prior lawsuit brought against him by another individual. Defense counsel did not object to any of the questions addressed to Bailey concerning the prior lawsuit, nor did he object to the plaintiff’s counsel’s attempt to refresh Bailey’s recollection by showing him the prior complaint.

Because the defendants did not properly object and except to any of the questions relating to the prior suit, the issue of their admissibility was not properly preserved for appellate review. We cannot, therefore, consider them here. Friedkmder v. Friedlander, 191 Conn. 81, 90 n.12, 463 A.2d 587 (1983).

II

Because the remaining issues concern the same trial court ruling, we shall address them together.

The defendants complain that the trial court improperly excluded evidence of the plaintiff’s prior criminal record when that evidence was admissible (1) on the issues of bias, prejudice, habit or custom, and (2) on the claim of mental distress and humiliation. We disagree.

The defendants sought to introduce into evidence the fact that the plaintiff had been convicted of breach of the peace on March 25, 1965, May 7, 1966, and January 25,1977, of assault in the third degree on December 4, 1971, and disorderly conduct on December 21, 1978. The trial court sustained the plaintiffs relevancy objection to these questions. The defendants then advised the trial court that they would attempt to reintroduce this evidence when the expert medical witnesses testified for the purpose of disputing the plaintiff’s claim of psychological and emotional injury. When physician Alan J. Greenwald testified on behalf of the plaintiff, the defendants conducted a voir dire examination on the issue of prior arrests and convictions as it related to psychological and emotional injury. Upon completion of the voir dire of Greenwald, the defendants indicated to the trial court that they would not pursue that line of questioning before the jury.

We first note that the defendants did not and could not claim that the plaintiff’s prior convictions were admissible for the purposes of impeaching his credibility because all of the convictions were for misdemeanors and, thus, are not crimes punishable by more than one year in prison. General Statutes § 52-145; Heating Acceptance Corporation v. Patterson, 152 Conn. 467, 471-72, 208 A.2d 341 (1965); see also State v. Martin, 201 Conn. 74, 86, 513 A.2d 116 (1986) (reaffirming Heating Acceptance Corporation).

As to the defendants’ claims, trial courts are vested with liberal discretion in determining the relevancy of evidence. Delott v. Roraback, 179 Conn. 406, 414, 426 A.2d 791 (1980); Pagani v. BT II, Limited Partnership, 24 Conn. App. 739, 748, 592 A.2d 397 (1991). Evidence is relevant if “it tends to establish a fact in issue or to corroborate other direct evidence in the case.” Federated Department Stores, Inc. v. Board of Tax Review, 162 Conn. 77, 82, 291 A.2d 715 (1971). “Because there is no precise and universal test of relevancy, however, the question must ultimately be addressed on a case-by-case basis in accordance with the teachings of reason and judicial experience.” (Internal quotation marks omitted.) Metropolitan District v. Housing Authority, 12 Conn. App. 499, 508, 531 A.2d 194 (1987). We will set aside rulings on evidentiary matters only upon a clear showing of an abuse of discretion. Id.

The trial court did not abuse its discretion in ruling that the proffered evidence was inadmissible. None of the prior instances of misconduct involved the defendants in this case. Only one of the five instances involved an act directed against a police officer. The acts of misconduct occurred between eleven and twenty-five years prior to this trial, and involved only misdemeanors. In addition, the court noted that to admit the proffered evidence would result in diverting the inquiry from the ultimate issues presented.

In light of these factors, the trial did not abuse its discretion in refusing to admit the proffered evidence. Even if the evidence had been marginally relevant, “[i]t is a reasonable exercise of judicial discretion to exclude . . . evidence the relevancy of which appears to be so slight and inconsequential that to admit it would distract attention which should be concentrated on vital issues of the case.” State v. Moynahan, 164 Conn. 560, 589, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S. Ct. 291, 38 L. Ed. 2d 219 (1973); State v. Plaza, 23 Conn. App. 543, 549, 583 A.2d 925 (1990), cert. denied, 217 Conn. 811, 587 A.2d 153 (1991).

The defendants’ alternative claim of relevance was that the evidence of prior convictions was probative of the extent of emotional damage suffered by the plaintiff. Specifically, the defendant hoped to establish that a person who had been arrested on a number of occasions would be less traumatized by an additional arrest than one who had never been arrested. This attempt, however, died aborning during the defendants’ offer of proof, when Greenwald testified that he could not reach such a conclusion because of the number of variables. After failing to establish a factual basis for this testimony, the defendants abandoned their offer of proof on this issue. See Stephanofsky v. Hill, 136 Conn. 379, 384-85, 71 A.2d 560 (1950). Thus, we need not decide whether the trial court properly excluded the proffered testimony on the issue of damages, because the defendants have failed to demonstrate that they suffered probable harm as a result of such ruling. See Starzec v. Kida, 183 Conn. 41, 49, 438 A.2d 1157 (1981).

The judgment is affirmed.

In this opinion the other judges concurred.

       The city of Groton is named as an appellant in the case. The trial court file, however, reveals that a motion to strike the complaint against that defendant or, in the alternative, for a directed verdict in favor of the defendant city was granted by the trial court. The judgment file fails to disclose any verdict or judgment rendered for or against the city of Groton. For purposes of this appeal, the use of the word defendants refers only to David Bailey, Ronald Jenkins and Cindy Grenier.

       See 42 U.S.C. § 1983.

       All of the criminal convictions sought to be introduced were at that time and are now misdemeanors. See General Statutes (1958 Rev.) § 53-174 and General Statutes §§ 53a-181, 53a-182 and 53a-61.


text:
    State of Connecticut v. Jack Scuilla
    (9697)
    Dupont, C. J., Norcott and Heiman, Js.
    Argued October 1
    decision released November 19, 1991

      Robert G. Golger, special public defender, with whom, on the brief, was Howard T. Owens, Jr., for the appellant (defendant).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Henry Lyons, assistant state’s attorney, for the appellee (state).
   Norcott, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3) and using a motor vehicle without the owner’s permission in violation of General Statutes § 53a-119b. The defendant claims that the trial court improperly (1) determined there was sufficient probable cause to put him on trial on a charge of murder, (2) admitted into evidence certain gruesome photographs of the victim, and (3) limited the scope of voir dire of prospective jurors, all of which prejudiced him. We affirm the trial court’s judgment.

The jury reasonably could have found the following facts. Early on the morning of September 24, 1989, Alfred Allen got out of his car at Main and John Streets in Bridgeport to use a public telephone. While using the telephone, Allen, who had left the car running, saw someone get into the car and drive away. Allen gave chase but was unable to catch up to the car. After returning home, he and his wife, Audra, called police and resumed the search in her car. Near Hamilton Street and Martin Luther King Drive, they saw the defendant in the car talking with a man who was leaning into the car on the passenger side. The defendant then sped away with the victim hanging from the passenger compartment. Allen followed and saw the defendant swerve the car from side to side, apparently attempting to throw the victim off. Allen estimated that the defendant was traveling at a speed of sixty to sixty-five miles per hour while going onto an entrance ramp to Interstate 95.

While on the ramp, the defendant repeatedly swerved the car against the guardrail, shearing off the victim’s legs, after which the victim fell from the car. Two other drivers who had been traveling on the highway that morning also testified that they saw the incident on the entrance ramp. Medical evidence showed that the vietim died as a result of multiple blunt force injuries and that both his legs had been crushed or tom off. A small amount of cocaine was found in his system.

At trial, the defendant testified that the victim had precipitated the incident by leaning into the car and demanding money and drugs. He testified that the victim had a gun and was threatening to kill him while trying to get into the car. The defendant testified that he was in fear for his life and swerved the car to get the victim off of it. The defendant also testified that he had ingested alcohol and numerous drugs prior to the incident. Finally, a forensic psychiatrist testified that the defendant was intoxicated on the morning of the incident and that the amounts of drugs and alcohol he had ingested would have impaired his judgment and ability to think rationally.

Although the defendant was charged, in a substitute information in the first count, with murder, he was convicted of the lesser included offense of manslaughter in the first degree, as well as the motor vehicle offense. He was sentenced to a term of imprisonment of twenty years, suspended after twelve years.

Prior to trial, the court conducted a hearing in which it found sufficient probable cause to permit the defendant to be tried on the murder charge. At the hearing, the court refused to allow defense counsel to introduce medical testimony in an effort to negate probable cause through a showing that the defendant was intoxicated at the time of the crime and thus lacked the requisite intent to commit murder. During voir dire of prospective jurors, the court also limited defense counsel regarding questions concerned with narcotics and self-defense. At trial, despite defense counsel’s repeated objections, the court admitted into evidence several photographs of the victim’s body and severed legs that depicted his injuries in graphic detail, including one picture showing a gash that exposed the inside of his head and another showing the victim lying naked on an autopsy table. The jury also heard testimony from a deputy chief medical examiner for the state who graphically described the victim’s injuries.

I

The defendant first claims that the court improperly construed the purpose of our probable cause statute, General Statutes § 54-46U, thereby denying him an opportunity to introduce medical testimony that would have led to a finding that no probable cause existed to try him for murder. He claims that the court wrongly concluded that rebuttal evidence could be used only to show that the defendant was not the person who committed the crime. As a result, he claims, the court improperly prohibited testimony by a forensic psychiatrist that would have shown the defendant lacked the capacity to form the intent to commit murder and the ability to appreciate the consequences of his actions. The state argues that, even if the defendant is correct in his allegations, any error in the conduct of the hearing is harmless beyond a reasonable doubt because the defendant was acquitted of the murder charge, although he was found guilty of the lesser included offense of manslaughter in the first degree. We agree.

Our disposition of this issue is governed by State v. Timmons, 7 Conn. App. 457, 509 A.2d 64 (1986), appeal dismissed, 204 Conn. 120, 526 A.2d 1340 (1987). In Timmons, we determined that deprivation of a defendant’s constitutional right to a probable cause hearing was harmless beyond a reasonable doubt when the defendant was acquitted of murder but convicted of the lesser included offense of manslaughter in the first degree. Lack of probable cause “to charge the defendant with murder would not have precluded the state from proceeding to trial against the defendant on the lesser included offense of manslaughter in the first degree .... Charged only with manslaughter, the defendant would have had no right to a probable cause hearing . . . .’’Id., 462. The defendant’s claim here that he was prejudiced by the finding of probable cause for murder is thus without merit in light of the fact that the jury acquitted him of murder and found him guilty of the lesser included offense of manslaughter in the first degree. Although the defendant’s counsel claimed at oral argument that, “had he not been charged with murder, he would have had a different trial” because different strategies, witnesses and trial tactics would have been employed, it is almost always the case when a lesser included offense is involved that counsel would have proceeded differently had the greater offense not been charged in the first place. The existence of this situation by itself does not mean that prejudice resulted which adversely affected the integrity of the trial.

Further, we disagree with the defendant’s argument that the finding of probable cause to go forward on the murder charge meant the trial and subsequent proceedings were void ab initio. “For a criminal proceeding to be void ab initio, there must be some defect as to the court’s jurisdiction over the subject matter or the person charged.” Id. When the state charges a defendant with murder, it may prosecute him for manslaughter because the information serves to give him notice of all lesser included charges. Id. Here, the defendant, charged by substitute information with murder, had notice of all lesser included offenses, including manslaughter in the first degree, for which he was convicted. We conclude that any error in construing the purpose of our probable cause statute was harmless beyond a reasonable doubt.

II

The defendant next claims that the trial court should not have admitted into evidence certain photographs of the victim because they were cumulative of prior oral testimony, as well as being grisly, inflammatory and highly prejudicial.

It is well established that where photographs have a reasonable tendency to prove or disprove a material element of a crime charged or shed light on a material inquiry, they are not inadmissible simply because they may be regarded as “gruesome.” State v. Haskins, 188 Conn. 432, 452, 450 A.2d 828 (1982); State v. Piskorski, 177 Conn. 677, 700, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979); State v. Suarez, 23 Conn. App. 705, 711, 584 A.2d 1194 (1991). To the contrary, photographs are admissible where they have “ ‘a reasonable tendency to prove or disprove a material fact in issue . . . .’ ” State v. Doehrer, 200 Conn. 642, 649, 513 A.2d 58 (1986); State v. DeJesus, 194 Conn. 376, 381, 481 A.2d 1277 (1984); State v. Lopez, 14 Conn. App. 536, 540, 541 A.2d 902 (1988).

When the trial court determines that possibly gruesome photographs may have a tendency to prejudice or inflame the jury, the court must decide if their probative value outweighs their possibly prejudicial effect. State v. Piskorski, supra, 700-701; State v. Smith, 174 Conn. 118, 122, 384 A.2d 347 (1977). The test for determining the admissibility of potentially inflammatory evidence is not whether it is “absolutely essential to the state’s case” but whether it is relevant. State v. King, 216 Conn. 585, 603, 583 A.2d 896 (1990); State v. Piskorski, supra, 701; State v. Haskins, supra, 453; State v. Lopez, supra. The trial court has broad discretion where evidence is challenged as inflammatory and highly prejudicial, and its finding that probative value outweighs prejudicial effect will not be disturbed on appeal unless there is a clear abuse of discretion. State v. King, supra; State v. Piskorski, supra; State v. Smith, supra, 122; State v. Suarez, supra. This is true even where the state presents other testimony or exhibits that could be seen as rendering such photographs unnecessary. State v. Piskorski, supra. Because the prosecution has the “ ‘burden of establishing guilt beyond a reasonable doubt, [it] is not to be denied the right to prove every essential element of the crime by the most convincing evidence it is able to produce.’ ” Id., 701-702, quoting State v. Jensen, 209 Or. 239, 280, 296 P.2d 618, appeal dismissed, 352 U.S. 948, 77 S. Ct. 329, 1 L. Ed. 2d 241 (1956).

The photographs in this case were relevant to the issue of whether the defendant intended to kill the victim. Viewing the photographs, the jury could properly draw inferences to this effect in order to establish the requisite state of mind needed to convict the defendant of murder. Moreover, the photographs corroborated the testimony of Allen and the two witnesses who saw the incident while driving on the highway, as well as the medical examiner’s explanation of the cause of death. We conclude the photographs were properly admitted.

Ill

Finally, the defendant claims that the trial court improperly restricted the scope of voir dire by limiting counsel’s questions pertaining to prospective jurors’ feelings about narcotics and whether an individual has the right to use force in self-defense.

During voir dire, the defendant’s counsel attempted to ask several prospective jurors if they personally believed they would have the right to use self-defense to protect themselves in any instance in which they felt threatened. Counsel also asked if they would give equal weight to the testimony of all witnesses, regardless of whether such witnesses have used narcotics, and whether this would prevent the prospective jurors from reaching a fair and just verdict. The state objected to these questions, and the court sustained the objections, asserting that defense counsel had injected collateral issues into the case. The court warned counsel to stay within the parameters of its rulings, stating, “We’re trying to try a collateral issue and it’s going to stop. . . . This man is charged with a homicide. Possession of a stolen car. We’re not going to try the narcotics case in this case. . . . Genetically, we’ll treat the subject; but we’re not getting into the evidence. . . . [T]hat isn’t going to fly, and it won’t be allowed again.”

Our state constitution provides that in all civil and criminal actions tried before a jury, the parties shall have the right to challenge jurors peremptorily, with the number of such challenges to be established by law. Conn, const., art. I, § 19, as amended by art. IV of the amendments to the constitution. There also is a statutory right to a voir dire examination of each prospective juror in a criminal action. See General Statutes § 54-82f. It is settled law in Connecticut that “[t]he right to question each juror individually by counsel shall be inviolate.” Conn, const., art. I, § 19, as amended by art. IV of the amendments to the constitution; see, e.g., State v. Couture, 218 Conn. 309, 318, 589 A.2d 343 (1991); State v. Dolphin, 203 Conn. 506, 511, 525 A.2d 509 (1987); Lamb v. Burns, 202 Conn. 158, 162, 520 A.2d 190 (1987); State v. Hill, 196 Conn. 667, 671-72, 495 A.2d 699 (1985); State v. Barnes, 16 Conn. App. 333, 338, 547 A.2d 584 (1988). Although the extent of the voir dire rests largely within the discretion of the trial court, and the exercise of such discretion will not constitute reversible error unless it clearly has been abused or harmful prejudice appears to have resulted; State v. Couture, supra; State v. Dolphin, supra, 512; State v. Rogers, 197 Conn. 314, 318, 497 A.2d 387 (1985); State v. Haskins, 188 Conn. 432, 447, 450 A.2d 828 (1982); State v. Anthony, 172 Conn. 172, 176-77, 374 A.2d 156 (1976); in exercising such discretion the court should grant such latitude as is reasonably necessary to accomplish the two-fold purpose of voir dire: to permit the trial court to determine whether a prospective juror is qualified to serve, and to aid the parties in exercising their right to peremptory challenges. State v. Couture, supra; State v. Rogers, supra; State v. Haskins, supra, 446. Therefore, “ ‘if there is any likelihood that some prejudice is in the juror’s mind which will even subconsciously affect his decision of the case, the party who may be adversely affected should be permitted questions designed to uncover that prejudice. This is particularly true with reference to the defendant in a criminal case.’ State v. Higgs, 143 Conn. 138, 142, 120 A.2d 152 (1956).” State v. Rogers, supra; State v. Fritz, 204 Conn. 156, 161, 527 A.2d 1157 (1987).

Although the defendant claims that the court so severely restricted the scope of questioning as to force him to go forward without having been able effectively to ferret out possible prejudices of the jury, our review of the record does not support such a view. Prospective jurors told counsel they would be able to evaluate witnesses’ testimony fairly and objectively, and would follow the court’s instructions in accordance with the law, despite any negative feelings they may have had about narcotics or self-defense. Although the court limited inquiries in certain areas, we cannot say it did not allow counsel sufficient latitude to expose possible prejudices.

It is clear that the court acted within the bounds of its broad discretion in limiting voir dire for the purpose of preventing an inquisition into matters it believed were far afield of the relevant issues. We conclude that the court did not abuse its discretion in restricting the scope of defense counsel’s voir dire.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 54-46a provides in pertinent part: “(a) No person charged by the state, who has not been indicted by a grand jury prior to May 26,1983, shall be put to plea or held to trial for any crime punishable by death or life imprisonment unless the court at a preliminary hearing determines there is probable cause to believe that the offense charged has been committed and that the accused person has committed it.”

       At the probable cause hearing, the court stated: “I can’t lose sight of the purpose of this—the statute. The purpose of this statute is to protect those defendants against the possibility of the state going forward with a murder case without sufficient evidence. The purpose of allowing the defensive material, and the statute is quite clear on this, it should only be allowed if it is conclusive in the court’s mind that it would negate any possibility that he could be the person who committed a crime.”


author: Foti, J.

text:
    Craig M. Plikus v. Anthony J. Plikus
    (9336)
    Daly, Foti and Lavery, Js.
    Argued October 1
    decision released November 19, 1991

      William E. McCoy, for the appellant (defendant).

      Kevin E. Booth, with whom, on the brief, was James E. Mattern, for the appellee (plaintiff).
   Foti, J.

In this action for conversion of assets, the defendant appeals from the judgment of the trial court accepting the report of the attorney trial referee and ruling in favor of the plaintiff. The defendant claims that the trial court improperly (1) limited his discretion as the custodial parent, (2) disallowed a claimed credit, (3) ordered a reconveyance of the stock at issue, (4) imposed on him an obligation to support the plaintiff beyond the age of eighteen, (5) found a portion of his divorce agreement to be for the benefit of the plaintiff, and (6) awarded attorney’s fees to the plaintiff. We reverse the judgment of the court only as to the award of attorney’s fees.

The plaintiff, Craig Plikus, is the son of the defendant, who was divorced from the plaintiffs mother in 1981. The plaintiff was a minor at the time of the divorce, and is one of two issue of the marriage. During the marriage, the defendant and his wife transferred 150 shares of stock in the Southern New England Telephone Company to each son under the Uniform Gifts to Minors Act. Prior to the dissolution of their marriage, the defendant and his wife entered into a separation agreement that made no mention of the stock. The divorce was uncontested and the decree provided in part: “The defendant shall continue to hold the Southern New England Telephone Company stock on which he is presently trustee for the benefit of the children and shall disburse the same in payment for the educational needs of Craig Plikus. In the event that Craig Plikus does not opt to incur educational expenses, the defendant shall convey to Craig Plikus on his 22nd birthday, the aforesaid stock on which he is now trustee.” After the dissolution, the defendant transferred all of the stock into his own name. The stock has since split two for one, and the defendant has retained legal title to the 600 shares.

In his appeal, the defendant challenges several factual findings. In his first claim, the defendant points out that the Uniform Gift to Minors Act affords a custodian of property broad discretion in handling property and expending moneys for the benefit of a minor. He claims that the trial referee and the court improperly limited his discretion as a custodial parent. He claims that he spent approximately $12,000 on high school tuition, uniforms, sports equipment and transportation for the plaintiff. The attorney trial referee found, however, that the defendant did not use the stock for the plaintiffs benefit and that the facts do not support the defendant’s claim.

The referee found that the defendant told the plaintiff that he could afford to send the plaintiff to a private high school only if the plaintiff left his mother’s custody and resided with the defendant. The plaintiff did so. Thus, the referee concluded that the $12,000 expenditure was part of the defendant’s legal duty to support his child under General Statutes §§ 46b-215 and 46b-84. The referee also found that by the time the defendant had transferred the stock into his own name he had expended only a nominal amount for his son’s educational needs, and had not made payments equal in value to the stock.

In addressing a challenge to the facts found by the trial referee and adopted by the trial court, this court’s function is to determine whether those findings were clearly erroneous. Practice Book § 4061. Because the resolution of conflicting factual claims falls within the province of the trial court, we can reverse the judgment only if the findings are clearly erroneous. Nor’easter Group, Inc. v. Colossale Concrete, Inc., 207 Conn. 468, 473, 542 A.2d 692 (1988). We cannot retry the facts or pass on the credibility of the witnesses. Id. The referee’s findings are not clearly erroneous.

In his second claim, the defendant alleges that, at a minimum, he is entitled to a credit for amounts spent on the plaintiff’s education. The referee found, however, that the defendant did not use custodial funds for his son’s benefit and that the defendant had an obligation to support his son at that time. Here again, the defendant questions the factual findings of the trial referee. It is well settled that the factfinder determines with finality the credibility of witnesses and the weight to be given their testimony. State v. Speers, 17 Conn. App. 587, 592, 544 A.2d 769, cert. denied, 211 Conn. 808, 559 A.2d 1142, cert. denied, 493 U.S. 851, 110 S. Ct. 150, 107 L. Ed. 2d 108 (1989). Thus, we leave undisturbed the findings of fact made by the referee.

The defendant next claims that the court improperly ordered a reconveyance of the stock to the plaintiff because (1) the plaintiff did not seek injunctive relief, (2) the plaintiff did not show immediate and irreparable injury, and (3) the attorney trial referee lacked jurisdiction over a matter involving injunctive relief. While the plaintiff did not seek injunctive relief, he did seek “such other relief as the court deems appropriate.” The trial referee found that the defendant converted the stock that belonged to the plaintiff, and that the stock was still in the defendant’s possession.

At common law, if the converted property remained in the hands of the converter, the return of the identical property was allowed. The general rule is that the measure of damages in a conversion is the value of the goods at the date of the conversion; Kuzemka v. Gregory, 109 Conn. 117, 122, 146 A. 17 (1929); although this is not an exclusive determination. Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co., 193 Conn. 208, 222, 477 A.2d 988 (1984). Additionally, a wrongdoer should not be allowed to benefit from his misdeed. See Cohen v. Cohen, 182 Conn. 193, 205, 438 A.2d 55 (1980). He should not be allowed to retain a converted item, which may have greatly increased in value, and pay a lesser amount. Under the general rule, damages totaling the value of the item at the time of conversion plus consequential damages and interest may still be less than the value of the item itself. Additionally, in the case at hand, the defendant did not raise the issue of the measure of damages specifically on appeal or in his objection to the acceptance of the attorney trial referee’s report. Thus, we conclude that the order of reconveyance of the converted stock from the defendant to the plaintiff was proper under the circumstances of this case.

The defendant next challenges what he maintains was the referee’s finding that the parties’ divorce decree required the defendant to pay for the plaintiff’s college education. The defendant claims that, if the decree limited the use of the stocks to payments for postsecondary education, then, in substance, the dissolution court was ordering postmajority support. He maintains that a dissolution court cannot order post-majority support without a signed, written agreement of the parties formulated prior to the dissolution orders. While he argues that he “is not at this time strenuously pressing the issue of postmajority support,” the defendant asks us to view it in light of the result of the trial court’s ruling. He also argues that the court improperly enforced the dissolution judgment by allowing it into evidence as proof of an agreement between the parties to the dissolution.

The defendant’s arguments once again must fail because of the referee’s factual findings. The referee found that the defendant had not expended custodial funds for the plaintiff’s benefit. Therefore, the issue of whether the meaning of the word education in the divorce decree was limited to college education never arose. The trial referee was free to accept the clear meaning of the words in the decree as the agreement of the parties, intended for the benefit of their son, the plaintiff.

Finally, the defendant argues that the trial court improperly awarded attorney’s fees. We agree with this contention. The plaintiff sought relief that included monetary damages, interest, punitive damages and “such other relief as the court deems appropriate.” In approving the proposed decision of the attorney trial referee, the court awarded $5300 in attorney’s fees, without statutory or contractual authority to do so.

Absent statutory or contractual authorization, attorney’s fees are not recoverable. Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 280, 297, 472 A.2d 306 (1984). An exception to this general rule, however, is that a court may award attorney’s fees as a component of punitive damages. O’Leary v. Industrial Park Cor poration, 211 Conn. 648, 651, 560 A.2d 968 (1989). Punitive damages may be awarded upon a showing of fraud. See Markey v. Santangelo, 195 Conn. 76, 77, 485 A.2d 1305 (1985). In this case, however, the attorney trial referee did not find fraud.

Fraud is not a necessary part of a conversion. Conversion occurs when one assumes and exercises the right of ownership over property belonging to another, without authorization and to the exclusion of the owner’s rights. Falker v. Samperi, 190 Conn. 412, 419, 461 A.2d 681 (1983). The intent required for a conversion is merely an intent to exercise dominion or control over an item even if one reasonably believes that the item is one’s own. Luciani v. Stop & Shop Co., 15 Conn. App. 407, 411-12, 544 A.2d 1239, cert. denied, 209 Conn. 809, 548 A.2d 437 (1988).

The plaintiff argues that common law punitive damages are permissible when a plaintiff prevails in conversion, and that punitive damages may include attorney’s fees. The plaintiff fails to recognize, however, that the attorney trial referee did not award punitive damages in this case. The court accepted the referee’s report and then rendered a judgment that included attorney’s fees. Because the court lacked statutory or contractual authority to award attorney’s fees, however, and because there was no award of punitive damages, the court improperly awarded attorney’s fees.

The judgment, insofar as it allows an award of attorney’s fees, is reversed and the case is remanded with direction to vacate the award of attorney’s fees. In all other respects, the judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff brought this action in four counts alleging breach of contract, conversion, fraud and breach of a fiduciary duty.

       General Statutes §§ 45a-546 through 45a-556 (formerly §§ 45-101 through 45-109b).


text:
    Audubon Parking Associates Limited Partnership v. Barclay and Stubbs, Inc., et al.
    (9631)
    Norcott, Foti and Heiman, Js.
    Argued October 1
    decision released November 19, 1991

      William F. Gallagher, with whom, on the brief, were Elizabeth A. Gallagher and Barbara L. Cox, for the appellants-appellees (defendants).

      Margaret A. Little, with whom, on the brief, was Emily R. Levin, for the appellee-appellant (plaintiff).
   Foti, J.

The defendants appeal from the judgment rendered in favor of the plaintiff. The plaintiff has cross appealed claiming that the trial court improperly denied its request for costs and attorney’s fees.

The plaintiff brought an action against the defendants for breach of a commercial lease, and the defendants filed a counterclaim. The trial commenced on May 15,1990, and after two days of jury selection the parties reported to the trial judge that the matter had been settled for $50,000 with an exchange of releases between the parties. The court asked the parties if they fully understood and agreed with the terms of the settlement. After receiving an affirmative response, the court asked the attorneys to withdraw the complaint and the counterclaim for administrative reasons. As an incentive for compliance with this request, the court indicated that it would reinstate the case without costs or prejudice if the parties subsequently decided not to abide by the settlement.

When the defendants did not tender payment in accordance with the settlement agreement, the plaintiff moved to restore the case to the docket. The plaintiff also reserved its right to enforce the settlement agreement. On August 15,1990, the court reinstated the matter to the trial docket and ordered jury selection to commence on August 21,1990. On August 20, 1990, the plaintiff filed a motion entitled “Motion for Judgment In Accordance with and Enforcement of Contract of Settlement.” On October 1,1990, the court granted the motion and rendered judgment for the plaintiff in accordance with the contract of settlement.

The defendants appeal from that judgment claiming that (1) the court’s offer to reinstate the matter without costs or prejudice gave them the right to withdraw unilaterally from the settlement, (2) the plaintiff did not elect to enforce the settlement agreement properly because it did not move for judgment on the contract of settlement until after the matter had been reinstated to the docket for trial, and (3) the court violated the defendants’ constitutional right to a trial by jury by both reinstating the matter to the docket and rendering judgment on the settlement agreement. We reverse the judgment of the trial court.

“(1) An accord is a contract under which an obligee promises to accept a stated performance in satisfaction of the obligor’s existing duty. Performance of the accord discharges the original duty.

“(2) Until performance of the accord, the original duty is suspended unless there is such a breach of the accord by the obligor as discharges the new duty of the obligee to accept the performance in satisfaction. If there is such a breach, the obligee may enforce either the original duty or any duty under the accord.” 2 Restatement (Second), Contracts § 281; see W.H. McCune, Inc. v. Revzon, 151 Conn. 107, 109, 193 A.2d 601 (1963).

The settlement agreement at issue was accompanied by and conditioned upon the withdrawal of both the action and counterclaim. At the time of the breach of the settlement agreement, because there was no longer an action pending, the plaintiff had alternative rights. The plaintiff could have proceeded on either the original claim or the subsequent contract. See Montgomery v. Smith, 40 Conn. Sup. 358, 360-61, 499 A.2d 444 (1985). A plaintiff, as a creditor under a default in the performance of an accord may “sue either on the original cause of action, or ... on the contract of accord.” 15 S. Williston, Contracts (3d Ed. Jaeger) § 1848; see Air-Care N.O. Nelson Co. v. Ratchet, 5 Conn. App. 203, 206, 497 A.2d 771 (1985).

The court’s statement that if the parties chose not to proceed on the settlement it would allow the matter to be reinstated without costs or prejudice was directed to both parties, not merely to the plaintiff. The court’s remark was an offer to restore the parties to the status quo should the settlement agreement not be completed. The status quo was the position of the parties prior to the settlement agreement. When the agreement was not carried out by the defendants, the plaintiff had two options: The plaintiff could have (1) elected to proceed to trial, or (2) instituted a separate action based on the breached contract of accord. In either case, the defendants would have had the right to a trial by jury. The court, however, allowed the plaintiff to pursue both remedies in a single motion, rather than requiring the plaintiff to elect one remedy. In the context of the action for breach of the lease, the motion for judgment on the settlement agreement does not lie. In rendering judgment for the plaintiff in accordance with the contract of settlement without a trial, the court deprived the defendants of a right to a jury trial. The plaintiff must elect either to proceed to trial on the pending claim, or to bring suit on the settlement agreement.

On the appeal, the judgment is reversed and the case is remanded with direction to deny the plaintiffs motion for judgment in accordance with the contract of settlement. The cross appeal is dismissed.

In this opinion the other judges concurred.

       In addition to the named corporate defendant, there is a second defendant, Benjamin S. Morris, the president and principal shareholder, and a guarantor of the lease.

       Both the order that granted the motion and the judgment file indicate that the court granted attorney’s fees. A motion to rectify was granted by the court on February 11,1991, correcting the record to show that the plaintiff was denied attorney’s fees. While the cross appeal appears to be proper; Practice Book § 4005; we find it unnecessary to decide the cross appeal in view of our decision on the appeal.

       The court did not render judgment on the agreement but rather stated after hearing the terms of the agreement:
      “I would ask counsel to supply withdrawals of the complaint and the counterclaim now before they leave the courtroom.
      “Should this matter unravel and the parties choose not to proceed on the settlement on the underlying action, I will allow the matter to be reinstated without costs and without prejudice.”

       The plaintiff filed a motion to open asking that “the case be set down for immediate trial” and “[fjurther ... for the award of all attorneys fees, costs and expenses in connection with this motion . . . and for attorneys fees and costs in connection with any subsequent proceeding to enforce the contract of settlement or to further prosecute this action.”

       On July 16, 1990, the plaintiff, through counsel, sent a letter to the defendants’ counsel that stated in part:
      “This Motion to Reopen does not constitute an election on our part that we will only pursue the case in chief. It simply constitutes the first action we intend to take to resolve this matter. We reserve the right at all times to either sue upon the contract of settlement or to reopen the original claim. As to either action, we are seeking all attorneys’ fees so expended.”


text:
    Robert Fromer v. Boyer-Napert Partnership et al.
    (9769)
    Daly, Foti and Lavery, Js.
    Argued October 3
    decision released November 26, 1991

      Robert Fromer, pro se, the appellant (plaintiff).

      Francis J. Pavetti, for the appellee (named defendant).
   Per Curiam.

The plaintiff appeals to this court from the trial court’s dismissal of his administrative appeal to it. In February, 1989, the defendant Waterford conservation commission granted the named defendant a permit to conduct certain activities in connection with the development of an office park on land abutting inland wetlands. The plaintiff intervened pursuant to General Statutes § 22a-19 (a), and appealed the commission’s decision to the trial court. The plaintiff claimed that the named defendant’s conduct was likely to produce unreasonable water pollution.

After our plenary analysis of the record, transcripts and briefs submitted with this appeal, and after affording the plaintiff’s claims the appropriate scope of review, we determine that the factual findings of the trial court are not clearly erroneous and that its decision conforms to the applicable law.

The trial court filed a complete, legally sound memorandum of decision incorporating the facts and setting forth legal conclusions made in conformity with applicable law. Because the trial court’s decision completely articulates the issues involved and adequately explains the legal basis for its conclusions, it may be referred to for a detailed discussion of the facts and applicable law. See Faith Center, Inc. v. Hartford, 192 Conn. 434, 436, 472 A.2d 16, cert. denied, 469 U.S. 1018, 105 S. Ct. 432, 83 L. Ed. 2d 359 (1984); Hinchliffe v. American Motors Corporation, 192 Conn. 252, 253, 470 A.2d 1216 (1984); Koehm v. Kuhn, 18 Conn. App. 313, 315, 557 A.2d 933 (1989).

Accordingly, the trial court’s memorandum of decision, reported in Fromer v. Boyer-Napert Partnership, 42 Conn. Sup. 57, 599 A.2d 1074 (1991), should be referred to for a detailed discussion of the facts and legal conclusions in the case.

The judgment is affirmed.

       The trial court cites Fee v. Carothers, 23 Conn. App. 435, 580 A.2d 1244 (1990), for the proposition that the statute in effect at the time that an appeal from an administrative ruling is commenced controls the action. We note, however, that Vernon Village, Inc. v. Carothers, 217 Conn. 130, 585 A.2d 76 (1991), which was decided after the trial court’s decision in this case, established that the statute in effect at the time that the administrative proceedings are commenced controls the action.