author: Hull, J.

text:
    Armando Valeriano v. George D. Bronson, Warden
    (5457)
    Dupont, C. J., Hull and Borden, Js.
    Argued June 5
    decision released September 15, 1987

      Patrice S. Noah, for the appellant (petitioner).

      Steven M. Sellers, assistant state’s attorney, for the appellee (respondent).
   Hull, J.

After a trial to a jury, the petitioner was convicted of felony murder in violation of General Statutes § 53a-54c. The crime involved a fire started by the petitioner on January 14,1977, as a result of which the victim died on April 27, 1978. The petitioner filed a direct appeal in our Supreme Court, which affirmed the conviction. State v. Valeriano, 191 Conn. 659, 469 A.2d 936 (1983), cert. denied, 466 U.S. 974, 104 S. Ct. 2351, 80 L. Ed. 2d 824 (1984).

The petitioner thereafter filed the present habeas corpus petition. He claimed that he did not receive the effective assistance of appellate counsel because his appellate counsel did not raise in his direct appeal the common law “year and a day” rule, which bars conviction for a homicide if the victim does not die within a year and a day of the defendant’s conduct which caused the death. After an evidentiary hearing, the habeas court denied the petition. Upon a grant of certification by the habeas court, this appeal followed.

The principal issue presented in this appeal is whether the traditional “deliberate bypass” standard should be applied to a habeas corpus petition when the failure to raise a particular issue on direct appeal resulted from a deliberate decision on the part of the petitioner’s appellate counsel. In the present case, the petitioner’s trial counsel, who was also his appellate counsel, raised the “year and a day” rule in the trial court, where it was rejected. The petitioner was not advised by his appellate counsel of the tactical decision to omit the issue regarding the applicability of the “year and a day” rule from his direct appeal. The decision to omit this issue was reached solely by his appellate counsel. The state argues, therefore, that the “deliberate bypass” rule is inapplicable to the facts of the present case. Although this precise issue has not been determined by this or any other Connecticut court, we are guided in our analysis by well settled precedent regarding the writ of habeas corpus as established by both Connecticut and federal courts.

The general proposition that a habeas corpus action cannot be used as an alternative to a direct appeal is well established in Connecticut law. See Cajigas v. Warden, 179 Conn. 78, 81, 425 A.2d 571 (1979); Blue v. Robinson, 173 Conn. 360, 369, 377 A.2d 1108 (1977); Vena v. Warden, 154 Conn. 363, 365, 225 A.2d 802 (1966). In Wojculewicz v. Cummings, 143 Conn. 624, 628, 124 A.2d 886 (1956), our Supreme Court held that an exception to this common law limitation should be made when the conviction which gave rise to the challenged detention was obtained in violation of the petitioner’s rights under the federal constitution. The court further modified this exception in Vena v. Warden, supra, by adopting the rationale of the United States Supreme Court in Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963), and holding that “a petitioner may collaterally raise federal constitutional claims in a habeas corpus proceeding even though he has failed to appeal his federal constitutional claims directly to [the court] if he alleges and proves, by a fair preponderance of the evidence, facts which will establish that he did not deliberately bypass the orderly procedure of a direct appeal.” (Emphasis added.) Vena v. Warden, supra, 366-67.

For over a decade, the “deliberate bypass” rule stemming from Fay v. Noia, supra, has been consistently applied by our courts without exception. The rationale of the “deliberate bypass” standard has been summarized by our Supreme Court as serving two important functions: (1) it prevents piecemeal litigation; and (2) it prevents a prisoner from deliberately deferring his claims until a time when a new trial, if required, would be impossible. See Paulsen v. Manson, 193 Conn. 333, 476 A.2d 1057 (1984); D’Amico v. Manson, 193 Conn. 144, 146-47, 476 A.2d 543 (1984). In applying this standard, a court must find that the record “ ‘affirmatively disclosefs] that the plaintiffs decision to waive his right to appeal was voluntarily, knowingly and intelligently made’ ” before it can conclude that there has been a deliberate relinquishment of the right to appeal. D’Amico v. Manson, supra, 148. It is clear, therefore, that the deliberate bypass rule focuses on whether the habeas corpus petitioner personally made, as a criminal defendant, a decision to bypass an appeal.

Subsequent to the holding in Fay v. Noia, supra, however, the United States Supreme Court developed a more restrictive standard, that of “cause” and “prejudice,” for access to federal habeas corpus relief by a state prisoner. In Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977), the United States Supreme Court held that a state prisoner could not bring his claims to a federal habeas court absent a showing of “cause” for his state procedural default, and actual “prejudice” resulting therefrom. Although the court chose not to define the precise contours of the “cause” and “prejudice” standard, it noted that the standard was narrower than the broad standard set forth in Fay v. Noia, supra. Wainwright v. Sykes, supra, 87. The court recently made clear that the “cause” and “prejudice” standard applies to procedural defaults on appeal as well as to those at trial. Murray v. Carrier, 477 U.S. 478, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986).

In the aftermath of Wainwright v. Sykes, supra, various courts have noted that it is unclear as to which cases are to be evaluated by the Fay v. Noia “deliberate bypass” standard, and which are to be evaluated by the Wainwright v. Sykes “cause” and “prejudice” standard. See, e.g., Frazier v. Czarnetsky, 439 F. Sup. 735, 737 (S.D.N.Y. 1977). Our Supreme Court, while consistently adhering to the “deliberate bypass” standard, has nevertheless acknowledged the emergence of the narrower “cause” and “prejudice” standard, and noted that such standard accomplishes the same important functions as those served by the “deliberate bypass” rule. See Paulsen v. Manson, supra, 338 n.5; D’Amico v. Manson, supra, 148. In McClain v. Manson, 183 Conn. 418, 428-29 n.15, 439 A.2d 430 (1981), the court noted the issue as follows: “It appears that the Supreme Court ‘is more apt to find a habeas petitioner bound by a bypass with respect to a strategic or tactical decision of the kind normally committed to counsel, than with respect to decisions of the sort entrusted to the defendant himself.’ . . . Included in this latter category would be decisions whether to plead guilty, to forego the assistance of counsel, or to refrain from an appeal.” The court implied, therefore, that the “deliberate bypass” standard is properly applicable only in those situations where the defendant himself had the ultimate responsibility for a tactical decision resulting in a procedural default.

In each of the cases which has been considered by our courts, the petitioner either failed to bring an appeal at all; see, e.g., Paulsen v. Manson, supra; D’Amico v. Manson, supra; or appeared on appeal pro se and therefore made all the tactical decisions regarding the presentation of the appellate issues himself. See, e.g., Galland v. Bronson, 204 Conn. 330, 527 A.2d 1192 (1987). In these situations, the defendant shouldered the ultimate responsibility for the tactical decisions of his case, and therefore was properly subject to a “deliberate bypass” inquiry. The court in McClain v. Manson, supra, left unresolved, however, the question of whether the “cause” and “prejudice” standard should be applied in those situations in which counsel did not raise an issue on appeal. In the present case, we are squarely confronted with this situation and must therefore resolve the question left open in McClain v. Manson, supra.

Where, as in this case, the petitioner had no part in the tactical decision which ultimately resulted in the procedural default, and where such a decision is normally and of necessity entrusted to counsel, the “deliberate bypass” standard requiring a showing of a “knowing and intelligent waiver” is inapplicable. See Wainwright v. Sykes, supra, 94 (Burger, C. J., concurring). The determination of which issues to present, and which issues not to present, on an appeal is by its nature a determination committed to the expertise of appellate counsel, and not to his client. Jones v. Barnes, 463 U.S. 745, 749, 103 S. Ct. 3308, 77 L. Ed. 2d 987 (1983). By that determination, appellate counsel seeks to focus the concern of the appellate court on those issues which he deems to be most persuasive, and thus does appellate counsel most effectively present his client’s appeal. Id., 751-52. Therefore, it simply does not make sense to ask whether a habeas corpus petitioner personally and deliberately bypassed the appellate process as to a tactical decision which was never his to begin with.

Indeed, it would be inconsistent with one of the principal purposes of the deliberate bypass rule to apply it in a case such as this. That rule seeks in part to prevent a prisoner from deliberately deferring his claim until it is too late to retry him effectively. Paulsen v. Manson, supra. It focuses on the interest of the state in prosecuting crimes while the evidence is still available. In a case such as this, however, the focus is on a tactical decision which belongs solely to counsel. A habeas corpus petitioner would always be able to establish that he had not deliberately bypassed an appeal, because he never would have had the final choice in the tactical appellate decision which he seeks to challenge. Thus, he could at any time, subsequent to his direct appeal, no matter how late, meet the threshold requirement for habeas corpus.

We therefore conclude that the “cause” and “prejudice” test of Wainwright v. Sykes, supra, rather than the “deliberate bypass” test, applies to the strategic or tactical determination of whether to include a particular issue on appeal. That is precisely the sort of tactical decision which is left to counsel. Our conclusion is also based on our Supreme Court’s penchant for following the lead of federal precedent in habeas corpus actions, and on the clear holdings of recent decisions of the United States Supreme Court on this precise issue.

Although the United States Supreme Court has eschewed cataloging the circumstances that would and would not justify a finding of “cause,” it has stated that “the existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective facts external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” Murray v. Carrier, supra, 488. Recent cases have provided some elaboration on the “cause” requirement.

On one hand, the United States Supreme Court has held that the ignorance of or inadvertent failure to raise a substantive claim of error does not constitute cause. Id., 493-94. Nor does a deliberate and tactical decision not to pursue a particular claim on appeal constitute cause, as long as that decision does not itself amount to ineffective assistance of counsel. Smith v. Murray, 477 U.S. 527, 535, 106 S. Ct. 2661, 91 L. Ed. 2d 434 (1986). In fact, such a tactical decision “is the very antithesis of the kind of circumstance that would warrant excusing a defendant’s failure to adhere to a state’s legitimate rules for the fair and orderly disposition of its criminal cases.” Id.

On the other hand, the failure to raise a novel legal claim which was not reasonably available to counsel at the time of the default may constitute cause. Smith v. Murray, supra; Reed v. Ross, 468 U.S. 1, 104 S. Ct. 2901, 82 L. Ed. 2d 1 (1984). Additionally, ineffective assistance of counsel can constitute cause, even where the claim is based on a single tactical decision of the counsel. Murray v. Carrier, supra, 490.

In order to establish prejudice, the petitioner must show “not merely that the errors at . . . trial created a possibility of prejudice, but that they worked to actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” (Emphasis in original.) United States v. Frady, 456 U.S. 152, 170, 102 S. Ct. 1584, 71 L. Ed. 2d 816, reh. denied, 456 U.S. 1001, 102 S. Ct. 2287, 73 L. Ed. 2d 1296 (1982); see also D’Amico v. Manson, supra, 154-57. A finding that the petitioner has failed to carry his burden of showing cause for noncompliance with procedural rules and prejudice resulting therefrom does not end the inquiry. Smith v. Murray, supra, 537. The “cause” and “prejudice” standard will not apply in cases where there has been a “fundamental miscarriage of justice.” Id.; Murray v. Carrier, supra. “[I]n an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.” Murray v. Carrier, supra, 496.

The petitioner argues that because of his appellate counsel’s failure to raise the “year and a day” rule on direct appeal, he was rendered ineffective assistance of appellate counsel. He therefore claims that even under the narrower “cause” and “prejudice” standard, he has demonstrated sufficient cause. Whether counsel’s performance was constitutionally deficient is determined under the test of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); see also Smith v. Murray, supra, 533. That test requires a two component inquiry: first, it must be shown that the attorney’s performance was so deficient and his errors so serious that “counsel was not functioning as . . . ‘counsel’ ” and, second, that those errors functioned so “as to deprive the defendant of a fair [appeal], [an appeal] whose result is reliable.” Strickland v. Washington, supra, 687; see also Levine v. Manson, 195 Conn. 636, 640, 490 A.2d 82 (1985). In assessing the appellate attorney’s conduct, we “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under these circumstances, the challenged action ‘might be considered sound [appellate] strategy.’ ” United States ex rel. Roche v. Scully, 739 F.2d 739, 742 (2d Cir. 1984), quoting Strickland v. Washington, supra, 689. Moreover, “ ‘[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.’ ” Smith v. Murray, supra, 536. If the defendant is “represented by counsel whose performance is not constitutionally ineffective under [this] standard ... we discern no inequity in requiring him to bear the risk of attorney error that results in a procedural default.” Murray v. Carrier, supra, 488.

Applying this standard to the present case, we conclude that the petitioner has failed to demonstrate that his appellate counsel’s representation was ineffective. The record reveals that counsel carefully considered the “year and a day” rule, and concluded that the claim would be a weak argument on appeal. Although there are courts which have adopted the “year and a day” rule; see, e.g., State v. Williams, 247 Ga. 200, 275 S.E.2d 62 (1981); State v. Minster, 302 Md. 240, 486 A.2d 1197 (1985); Elliot v. Mills, 335 P.2d 1104 (Okla. Crim. App. 1959); Cole v. State, 512 S.W.2d 598 (Tenn. Crim. App. 1974); State v. Edwards, 104 Wash. 2d 63, 701 P.2d 508 (1985); there are also many courts which have rejected or refused to adopt the rule. See People v. Snipe, 25 Cal. App. 3d 742, 102 Cal. Rptr. 6 (1972); State v. Sandridge, 5 Ohio Op. 3d 419, 365 N.E.2d 898 (1977); Commonwealth v. Ladd, 402 Pa. 164, 166 A.2d 501 (1960); People v. Brengard, 265 N.Y. 100, 191 N.E. 850 (1934); People v. Legeri, 239 App. Div. 47, 266 N.Y.S. 86 (1933). Moreover, Connecticut has never expressly adopted or applied the rule. As the habeas court in this case found, the rule’s common law roots were in the inability of primitive medical science to determine the cause of death with reasonable certainty. Those roots may no longer be viable.

The petitioner’s appellate counsel chose to rely on arguments which reasonably competent counsel would have considered stronger than the “year and a day” rule. See footnote 1, supra. The process of winnowing out the weaker arguments of an appeal and focusing on those more likely to prevail does not constitute ineffectiveness. Rather, it is the “hallmark of effective appellate advocacy.” Smith v. Murray, supra, 536. We conclude that the record does not support the petitioner’s claim of ineffective assistance of counsel, and that the petitioner has therefore failed to demonstrate cause. In light of this failure, we need not reach the question of whether he was prejudiced by the failure of appellate counsel to raise the “year and a day” rule on appeal. Nor do we find a fundamental miscarriage of justice in this case necessitating a suspension of the application of the “cause” and “prejudice” standard.

There is no error.

In this opinion the other judges concurred.

       The petitioner raised three claims of error in his direct appeal. The claims were that the trial court erred (1) in its instruction on the phrase, “in furtherance of such crime,” in the felony murder statute, (2) in refusing to submit to the jury an affirmative defense available under the felony murder statute, and (3) in denying the defendant’s motion to exclude a witness as incompetent, in permitting that witness to invoke the privilege against self-incrimination, and in refusing to strike his testimony. State v. Valeriano, 191 Conn. 659, 661, 469 A.2d 936, cert. denied 466 U.S. 974, 104 S. Ct. 2351, 80 L. Ed. 2d 824 (1984).

       The habeas court considered the merits of the “year and a day” rule. In a fifteen page memorandum of decision, the court addressed the rule and concluded that the “ ‘year and a day’ rule, if it ever did exist here, has not evolved; it has atrophied. Appellate counsel was correct, not ineffective.”

       We note that Turcio v. Manson, 186 Conn. 1, 439 A.2d 437 (1982), involved such a situation. In that case, the petitioner directly appealed his conviction but failed to raise a claim that his jury instructions violated the rule of Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979). Sandstrom was decided five months after oral argument in the petitioner’s direct appeal and eight days before the release of our Supreme Court’s opinion on that direct appeal. Our Supreme Court, in the subsequent habeas corpus action, held that there had been no deliberate bypass of the orderly procedure of direct appellate review. The Sandstrom issue was in the nature of a novel legal claim which was not reasonably available to counsel at the time of the default. Smith v. Murray, 477 U.S. 527, 533, 106 S. Ct. 2661, 91 L. Ed. 2d 434 (1986).
      We note that in Turdo our Supreme Court applied the “deliberate bypass” standard, although the tactical decision of which issues to present on appeal was made by counsel. That case, however, was decided prior to Murray v. Carrier, 477 U.S. 478, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986), in which the United States Supreme Court extended the “cause” and “prejudice” standard of Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977), to apply to tactical decisions made on appeal.


source: Caselaw Access Project

author: Daly, J.

license: Public Domain

text:
    State of Connecticut v. Richard A. Siller
    (4856)
    Borden, Daly and Bieluch, Js.
    Argued June 9
    decision released September 15, 1987

      James M. Connolly, for the appellant (defendant).

      Carolyn K. Longstreth, deputy assistant state’s attorney, with whom was Gerald Eisenman, assistant state’s attorney, for the appellee (state).
   Daly, J.

The defendant appeals from the judgment of conviction rendered against him in accordance with the jury’s verdict of guilty of the crime of attempt to commit sexual assault in the fourth degree, in violation of General Statutes §§ 53a-49, and 53a-73a (a) (1) (A) and (a) (2). He was found not guilty of risk of injury to a child. The defendant claims that the trial court’s interruption of the direct examination of the defendant, its chastising of his counsel, and its limiting of the cross-examination of the victim denied him a fair trial. We find no error.

The jury could reasonably have found the following facts. On March 30, 1984, the victim, then thirteen years old, spent the night at a girlfriend’s (hereinafter Kelly) house in Stratford. During that evening and into the early morning hours of the next day, Kelly’s mother was working in a nearby restaurant. The defendant, a friend of Kelly’s mother, was also on the premises. The defendant and the mother were involved in a stormy relationship and the defendant lived with the mother at her home on an intermittent basis. The two frequently quarrelled over a 1982 red Corvette which had been purchased by the defendant with substantial financial assistance from the mother. At approximately 2:30 a.m., on March 31, 1984, the victim and Kelly retired to Kelly’s bedroom where they occupied a large waterbed. At approximately 2:45 a.m., prank telephone calls for the girls commenced. The defendant knocked on the girls’ bedroom door and asked Kelly to speak to the callers and to tell them to stop. The calls persisted. At approximately 3:30 a.m., the defendant went again to Kelly’s bedroom and asked her to call her mother at the restaurant, using the downstairs telephone, to inform her that the telephone was being taken off the hook. While Kelly complied with this request, the defendant entered Kelly’s bedroom, attempted to fondle the victim, and left a short time later. Upon Kelly’s return to the bedroom, the victim asked Kelly not to leave her alone again and then locked the bedroom door. Some time after 5 a.m., the defendant unlocked the bedroom door with an ice pick and again attempted to touch the victim. She rolled across the bed in an effort to elude the defendant’s touch. Kelly remained asleep. Kelly’s mother’s return home a short time later caused the defendant to leave the bedroom. Later in the morning, the victim informed Kelly what had occurred, and, at approximately 9:30 a.m., the victim informed Kelly’s mother of the early morning events. Charges were filed against the defendant one month later.

In his first claim, the defendant argues that the trial court’s repeated interruptions of his testimony and its chastisement of his counsel throughout the course of the proceedings violated his right to a fair trial and an impartial jury. Although not objected to at trial, these claims are properly reviewable under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). See State v. Jenkins, 8 Conn. App. 35, 41, 510 A.2d 1370 (1986).

Due process requires that a defendant be given a fair trial. A fair trial is one conducted with substantial conformity with the law, before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm. State v. Jenkins, supra, 42; see U.S. Const., amend. XIV; Conn. Const., art. I, § 8; Lisenba v. California, 314 U.S. 219, 62 S. Ct. 280, 86 L. Ed. 166 (1941); Wojculewicz v. Cummings, 145 Conn. 11, 19, 138 A.2d 512, cert. denied, 356 U.S. 969, 78 S. Ct 1010, 2 L. Ed. 2d 1075 (1958).

‘“No more elementary statement concerning the judiciary can be made than that the conduct of the trial judge must be characterized by the highest impartiality. If he departs from this standard, he casts serious reflection upon the system of which he is a part. A judge is not an umpire in a forensic encounter. . . . He is a minister of justice. ... He may, of course, take all reasonable steps necessary for the orderly progress of the trial. ... In whatever he does, however, the trial judge should be cautious and circumspect in his language and conduct.’ ... Tt is his responsibility to have the trial conducted in a manner which approaches an “atmosphere of perfect impartiality which is so much to be desired in a judicial proceeding.” ’ ” (Citations omitted.) Cameron v. Cameron, 187 Conn. 163, 168-69, 444 A.2d 915 (1982); State v. Hardwick, 1 Conn. App. 609, 611, 475 A.2d 315, cert. denied, 193 Conn. 804, 476 A.2d 145 (1984). The court should never assume a position of advocacy, whether real or apparent, and should avoid any appearance of hostility or skepticism toward the defendant’s case or the state’s case. State v. Smith, 200 Conn. 544, 549, 512 A.2d 884 (1986); State v. Drouin, 12 Conn. App. 101, 104-105, 529 A.2d 740 (1987).

The defendant does not claim that any single interruption of him or rebuking of his counsel was so prejudicial as to deprive him of a fair trial, but that all of the trial court’s comments taken together infringed upon his right to a fair trial. State v. Jenkins, supra, 41.

The defendant never moved for a mistrial. Appellate courts are “reluctant to award a new trial where those most concerned, better placed than we to assess the courtroom atmosphere, did not view the remarks to be so prejudicial as to warrant a new trial and preferred to stake the outcome on the trial under way. ‘We have made it clear that we will not permit parties to anticipate a favorable decision, reserving a right to impeach it or set it aside if it happens to be against them, for a cause which was well known to them before or during the trial.’ Krattenstein v. G. Fox & Co., 155 Conn. 609, 616, 236 A.2d 466 (1967).” State v. Mack, 197 Conn. 629, 642, 500 A.2d 1303 (1985).

The record does not disclose what occurred at bench conferences. Some of the allegedly improper remarks were made outside the presence of the jury and, therefore, did not affect the defendant’s right to a fair trial. State v. Jenkins, supra, 42-43. In addition, after a careful review of the entire transcript we find no impropriety in the court’s comments which were made in the presence of the jury.

Our review of the transcript discloses that the allegedly improper conduct of the trial court was directed at eliminating leading questions, having the witness respond to the questions asked and avoiding irrelevant testimony.

The judge took no position of advocacy regarding the outcome of the case, and made no improper comments on the significance of the evidence presented. At no time did the judge convey to the jury his opinion as to the guilt or innocence of the defendant. Further, neither the judge’s comments nor his questions impugned the defendant’s credibility. See State v. Day, 12 Conn. App. 129, 136-37, 529 A.2d 1333 (1987); State v. Drouin, supra. The trial judge’s actions do not appear to have thwarted the defendant’s counsel’s ability to defend his client. State v. Gordon, supra, 425.

The comments to which the defendant alludes were interspersed over a ten day trial. Furthermore, in its charge to the jury, the trial court complimented both counsel on doing an excellent job during the trial and stated: “If I have made any reference to the position of the state or the accused I assure you it is not my intention to convey to you, directly or indirectly, how the court feels as to what should be the outcome of the case. The decision rests in your hands and yours alone.” Such a curative instruction is entitled to great weight and will usually prevent a finding of reversible error by a reviewing court. State v. Jenkins, supra, 44. On the basis of our careful examination of the trial transcript, we conclude that the trial court’s comments did not deprive the defendant of a fair trial or an impartial jury.

The defendant also argues that the trial court improperly limited his cross-examination of the victim. The defendant duly excepted at trial to the limitation. The defendant sought to inquire into the victim’s alleged hostility toward men and boys in general and, in particular, toward her own father. The defendant claims that this hostility was relevant to the issue of her credibility concerning the accusations made against him.

This claim has not been properly preserved because the defendant presented nothing for this court to review. “The [defendant] failed to observe the requirements of Practice Book 3060F (c) (3) [now § 4065 (d) (3)] which requires that an appellant’s brief include, inter alia, the question, the objection and its ground, the claimed ground of admissibility, the ruling and the exception. The bare assertion in a brief that the evidence was improperly excluded, coupled with transcript page references, will not suffice. . . . It is our strong policy that rulings claimed as evidentiary errors to be reviewed by this court be provided and printed in the briefs as required and outlined by the Practice Book.” (Citation omitted.) Osborne v. Osborne, 2 Conn. App. 635, 641, 482 A.2d 77 (1984).

There is no error.

In this opinion the other judges concurred.

       The trial court’s comments included the following during direct examination of the defendant.
      “The Court: You answered the question.
      “Q. Did you spend any time—
      “The Court: I don’t want to pick on you, only answer Mr. — you’ve got a very good lawyer, he’ll ask you all the questions necessary to get your story. Don’t keep going. Just answer the questions asked you. Okay.
      “The Witness: Okay. . . .

        “The Court: What was — were the living — he asked you what were the living conditions — living arrangements. Answer his question if you can. If you can’t tell him you can’t. . . .
      “The Court: Excuse me, you must respond to the question. Wlhen was the next time you had a personal relationship, your answer is about cards. You’re editorializing. Answer the question, please. If you don’t understand the question tell your counsel you don’t understand the question.
      “The Witness: Okay. . . .
      “Q. Richard, what is it?
      “A. A stop payment order.
      “Q. For what purpose?
      “A. She repossessed the car.
      “Q. She, who do you mean?
      “A. The police officers came to 906 Judson Place—
      “The Court: WTiat were you stopping payment on?
      “The Witness: The August car payment.
      “The Court: To whom?
      “The Witness: G.M.A.C. . . .
      “Q. Can you identify this document?
      “A. Yeah.
      “Q. What is it?
      “A. Money order.
      “Q. What was the purpose of the money order?
      “The Court: He cannot testify from a document not in evidence.
      “Mr. Connolly: I am not asking him to testify from the document, I am asking him to further identify it, if he can.
      “The Court: Can you identify it further?
      “The Witness: Yes.
      “The Court: Go ahead.
      “The Witness: It was to cover the check for the August payment. “Mr. Connolly: I’ll offer it as an exhibit.
      “The Court: Any objections?

        “Mr. Eisenman: I object. It is not dated, it could cover any payment.
      “The Court: The jury is excused. Don’t discuss this matter by, among or between yourselves or accept, receive any evidence. . . .
      “The Court: The jury is directed to disregard that last part. I caution you once again.
      “The Witness: Okay.
      “The Court: I don’t want to have to caution you again.
      “The Witness: All right.
      “The Court: Self serving statements which are not part of the examination. . . .
      “Q. What did he tell you?
      “The Court: All right. Now, the jury—
      “Mr. Connolly: I’ll withdraw the question.
      “The Court: The jury is excused. Don’t discuss this matter by, among, between yourselves. In fact, we will take a recess now. . . .
      “The Court: Counsel all this testimony is designed, I suppose, to test the credibility of [the mother] and becomes important if it’s contrary to something — [the mother’s] testimony and I don’t recall any testimony of [the mother] about all this.
      “Mr. Connolly: Well, your Honor, I’m not claiming it solely on that basis. I’m also—
      “The Court: What other basis are you asking the question of this accused regarding the Corvette if it’s not — doesn’t go to credibility of [the mother],
      “Mr. Connolly: It goes to the relationship.
      “The Court: The relationship is not relevant, it’s the credibility.
      “Mr. Connolly: Your Honor. I think it ties together in that—
      “The Court: No it doesn’t. The jury is excused. . . .
      “The Court: I don’t want to keep cautioning you. When was the first time you started dating her and you came back with, the first time she invited me out.
      “I don’t know why you’re doing what you’re doing and caution you, don’t do it. Answer the question. ...”


author: Borden, J.

text:
    State of Connecticut v. Earle Allen, Jr.
    (5543)
    Borden, Daly and Bieluch, Js.
    Argued June 10
    decision released September 15, 1987

      Donald D. Dakers, public defender, for the appellant (defendant).

      Michael E. O’Hare, assistant state’s attorney, with whom, on the brief, was John Waddock, assistant state’s attorney, for the appellee (state).
   Borden, J.

The defendant appeals from the judgment of the trial court denying his motion for correction of an illegal sentence. His sole claim is that, where the information to which he pleaded nolo contendere charged him with risk of injury to a minor “on divers dates 1980 through March 5, 1984,” the court was required to sentence him pursuant to General Statutes § 53a-35, which applies to felonies committed prior to July 1,1981, rather than pursuant to General Statutes § 53a-35a, which applies to felonies committed on or after July 1,1981, even though his plea bargain called for an agreed recommendation to the court for a sentence pursuant to § 53a-35a. We find no error.

The defendant’s crimes involved repeated sexual intercourse with his two children, a daughter and a son. On September 4,1984, he pleaded nolo contendere to two counts of the crime of risk of injury to a minor child in violation of General Statutes § 53-21. Each count charged that the defendant “on divers dates 1980 through March 5, 1984 ... did commit certain acts likely to impair the health or morals of a minor child . . . .” There was an agreed recommendation to the court for concurrent sentences of seven and one-half years on both counts.

In the course of the plea canvass, the state represented to the court that the factual bases for the pleas were that, as to his thirteen year old daughter, “she had been the victim of sexual [intercourse] with her father for the past three years or so dating back to 1980 on,” and, as to his fifteen year old son, “that he had had sexual [intercourse] with [the defendant] over a period going back to 1980 and through roughly 1983.” At the time of the pleas, the defendant indicated that there was some question as to whether he should be sentenced pursuant to the statutes governing felonies committed prior to July 1,1981, or felonies committed on or after July 1,1981. The purpose of this discussion was to determine how the defendant’s statutory credits toward his sentence should be calculated, not which statute should apply to the actual sentence. The defendant had arranged with the appropriate officer of the department of correction to have his credits computed on the basis of the pre-July 1, 1981 statute, because that would be more favorable to him, even though he was going to be sentenced pursuant to the post-July 1, 1981 statute. The state agreed to this procedure, and the defendant specifically requested the court to include such a provision in the mittimus.

The court accepted the pleas and, on July 22, 1985, in accordance with the agreed recommendation, imposed a definite sentence of seven and one-half years on each count, to run concurrently for an effective sentence on both counts of seven and one-half years. These sentences were imposed pursuant to General Statutes § 53a-35a, which governs the sentences for felonies committed on or after July 1, 1981.

Subsequently, the defendant filed, pursuant to Practice Book § 935, a motion for correction of his sentence. He claimed that his sentence was illegal because the crimes for which he was convicted occurred both before and after July 1, 1981, and that the court was without a rational basis to determine whether his sentence should have been determined by General Statutes § 53a-35 or by General Statutes § 53a-35a. The significance of the defendant’s claim is that a sentence imposed pursuant to § 53a-35, for felonies committed prior to July 1,1981, would have been an indeterminate sentence. See General Statutes § 53a-35 (a) and (c) (3). Because the crime of risk of injury to a minor child in violation of General Statutes § 53-21, for which the defendant was sentenced, is an unclassified felony, the court would have been required to impose a minimum term “in accordance with the sentence specified in the section of the general statutes that defines the crime.” General Statutes § 53a-35 (c) (3). The sentence of the court in this case, however, was imposed pursuant to § 53a-35a, for felonies committed on or after July 1, 1981, and was a definite sentence.

It is axiomatic that “it is the date of the crime which controls the possible punishment for the offense.” State v. Millhouse, 3 Conn. App. 497, 502, 490 A.2d 517 (1985). The defendant claims, however, that the trial court, faced with an information which did not divide his crimes between those committed before and after July 1, 1981, had no rational basis on which to select the applicable sentencing statute and was, therefore, required to select the one which was more lenient toward him, namely, § 53a-35. We disagree.

First, where a sentencing statute which is applicable to a continuing offense is amended during the course of the commission of that offense, and where the offense is not completed until after the effective date of the amended statute, the defendant is subject to the penalties provided by that amended statute. State v. Hayes, 127 Conn. 543, 604-606, 18 A.2d 895 (1941); State v. Kemp, 126 Conn. 60, 85, 9 A.2d 63 (1939). The information filed in this case charged that “on divers dates 1980 through March 5,1984 . . . the said [defendant] did commit certain acts likely to impair the health or morals of a minor child ... in violation of Section 53-21 of the Connecticut General Statutes.” General Statutes § 53-21 defines a crime which, depending on the facts of the case, may be a continuing offense or may be an offense which is completed upon the happening of a single event. This information was treated by the court and the parties as a continuing offense, beginning in 1980 and not ending until 1984. The court therefore was entitled to sentence the defendant, pursuant to § 53a-35a, for the continuing offense to which he had pleaded nolo contendere.

Second, the court had before it (1) an agreed recommendation for a definite sentence pursuant to § 53a-35a, (2) the state’s statement of facts made at the time of the entry of the plea, and (3) an awareness by both the state and the defendant that, although there was some question as to the applicable sentencing statute, he would be sentenced pursuant to the statute governing criminal conduct which postdated July 1, 1981. The statement of facts indicated to the court that the acts of sexual intercourse with the victims were part of a course of conduct which began in 1980 and continued through 1984. Thus the court was entitled to infer, and the defendant does not claim otherwise, that most of the acts of sexual intercourse occurred after July 1, 1981. The defendant was aware of, and did not object to, the fact that his sentence was for a course of criminal conduct which spanned the periods covered by the two sentencing statutes. Under this unique coalescence of circumstances, the court was justified in treating as surplusage the reference in the information to the defendant’s pre-July 1,1981 conduct, and in accepting the agreed recommendation for a definite sentence pursuant to General Statutes § 53a-35a.

There is no error.

In this opinion the other judges concurred.

       The defendant also pleaded nolo contendere to, and was ultimately given a suspended sentence on, two counts of sexual assault in the second degree. At oral argument before this court, he made clear that he does not challenge those sentences.

       The defendant does not dispute, however, the state’s assertion that the minimum term would not have been limited to one half of the maximum imposed, and could have been anything less than the maximum imposed. Cf. General Statutes § 53a-35 (c) (2).


text:
    State of Connecticut v. Frederick Payne
    (4876)
    Borden, Daly and Bieluch, Js.
    Argued June 11
    decision released September 15, 1987

      John F. Kavanewsky, Jr., for the appellant (defendant).

      Robert J. O’Brien, assistant state’s attorney, with whom, on the brief, -were Arnold Markle, state’s attorney, and Margot Rubin and William K. Lietzau, legal interns, for the appellee (state).
   Borden, J.

The defendant appeals from the judgment of conviction, after a jury trial, of larceny in the second degree in violation of General Statutes (Rev. to 1981) §§ 53a-119 (8) and 53a-123 (a) (l). The sole issue raised on this appeal is whether the trial court erred by failing to instruct the jury on each essential element of the crime with which the defendant was charged. We find error.

The defendant was charged by an information which stated in pertinent part as follows: “On or about the 7th day of April, 1981, between 12:00 p.m. and 1:00 p.m. the said FREDDY PAYNE was in possession of property, to wit: a Kawasaki motorcycle stolen from 320 Alden Avenue on April 6, 1981, knowing that it had probably been stolen or believing that it had probably been stolen, in violation of Section 53a-123 (a) (1) of the Connecticut General Statutes.”

The evidence supported a finding that sometime between 6 p.m. on April 6, 1981, and 8:30 a.m. on April 7, 1981, an orange-red Kawasaki motorcycle belonging to James Thibault was taken from its parked position in front of his residence in New Haven. At about noon on April 7, 1981, Detective John Sirocco of the Hamden police department observed two black men aboard a motorcycle. When he began to pursue it in order to view the registration number, it took off at a high rate of speed. He continued pursuit, and during the chase the hat of the passenger blew off and was later retrieved by another officer. It was determined to contain a tag bearing the name of Douglas Antrum. Sirocco soon lost sight of the motorcycle in the Dix-well Avenue and Orchard Street vicinity of New Haven. Meanwhile, Detective William White of the New Haven police department, who had been advised to look out for a motorcycle with two black males aboard, proceeded to the area of Dickerman Street in New Haven. When he arrived, he found behind a house a motorcycle which fit the description of the one Sirocco had chased. A concerned citizen advised White that he had seen two black males jump off the motorcycle and run to the second floor of a house at 45 Dickerman Street. White went to 45 Dickerman Street and discovered the defendant and Antrum on the third floor, and placed them under arrest. Shortly thereafter, Sirocco arrived on the scene and identified the defendant and Antrum as the two he had seen on the motorcycle. Additionally, he identified the motorcycle as the one on which he had earlier seen them. Moreover, latent fingerprints removed from the motorcycle were identified as belonging to the defendant. Thibault identified the motorcycle as the one that was taken from his house.

The defendant presented evidence that he had been at his girlfriend’s apartment at 45 Dickerman Street since the evening of April 6 and until the time the police arrived. Antrum testified on the defendant’s behalf and stated that he had been a passenger on the motorcycle in question which was driven not by the defendant, but by a person known as Dezzel. Antrum further testified that he and Dezzel abandoned the motorcycle on Dickerman Street, and that he proceeded to the defendant’s girlfriend’s apartment where he and the defendant were later arrested.

The trial court instructed the jury that “[a] person is guilty of larceny in the second degree when the property consists of a motor vehicle. A motorcycle is considered a motor vehicle under the statute.” Thereafter, the court charged the jury on the general definition of larceny under General Statutes § 53a-119, see footnote 1, supra; and defined various terms including “property,” “owner,” “deprive,” “appropriate,” “intent,” “wrongful,” “withhold.” The court’s final summary to the jury with regard to the larceny charge was as follows: “Thus, to find the defendant guilty of larceny in the second degree, the state must prove that the property consisted of a motor vehicle; secondly, the state must prove that the defendant had the intent to deprive the owner of the motor vehicle permanently or he intended to appropriate that motor vehicle to himself or a third person on a permanent basis who was not the owner; thirdly, the state must prove beyond a reasonable doubt that the defendant did in fact wrongfully take, obtain or withhold such motor vehicle from the rightful owner.”

The defendant claims that the information charged him with larceny by receiving stolen property in violation of General Statutes (Rev. to 1981) § 53a-119 (8) and that the trial court erred by failing to instruct the jury on the essential elements of that statute. We view this as a claim that the defendant was denied his right not to be convicted except upon proof beyond a reasonable doubt as to each element of the crime charged, under the due process clause of the federal constitution. U.S. Const., amend. XIV; see In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Vessichio, 197 Conn. 644, 500 A.2d 1311 (1985), cert. denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed. 2d 187 (1986). The defendant did not raise this claim at trial, and seeks review under State v. Evans, 165 Conn. 61, 326 A.2d 576 (1973). The defendant’s claim clearly implicates a fundamental constitutional right adequately supported by the record, and is reviewable. State v. Vessichio, supra, 648-49; State v. Smith, 194 Conn. 213, 217, 479 A.2d 814 (1984); State v. Griffin, 175 Conn. 155, 162, 397 A.2d 89 (1978).

The information filed by the state charged the defendant with larceny by receiving, even though it did not specifically enumerate General Statutes (Rev. to 1981) § 53a-119 (8). The language in the information was virtually identical to the language contained in the statute. The comments to § 53a-119 point out that it contains both a broad definition of larceny and an enumeration of ten specific ways of committing the offense, including larceny by receiving. Moreover, the comments state that “the receiver is treated, not as a principal to the theft itself, but as a separate offender. Thus, he must be charged as such.” Commission to Revise the Criminal Statutes, Penal Code Comments, Connecticut General Statutes (West), p. 39. In this case, by adopting the language of subsection (8) for use in the information, it must be assumed that the state intended to charge the defendant as a receiver.

Having elected to charge the defendant as a receiver, the state was required to present proof on the following elements: (1) the receipt or retention by the defendant of a motorcycle; (2) knowing that it has probably been stolen or believing that it has probably been stolen; and (3) that the property is not received or retained for the purpose of restoring it to its owner. General Statutes § 53a-119 (8). See D. Borden & L. Orland, Connecticut Criminal Jury Instructions, § 13.2; see generally, State v. Anonymous (83-FG), 190 Conn. 715, 463 A.2d 533 (1983). Our review of the jury charge leads us to conclude that the trial court entirely failed to instruct the jury on these essential elements.

“In a criminal case, the state must prove, and the trial court must instruct the jury on, each essential element of the crime charged. See Patterson v. New York, 432 U.S. 197, 204, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977); Mullaney v. Wilbur, 421 U.S. 684, 698, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975); In re Winship, [supra, 364]; see also Screws v. United States, 325 U.S. 91, 107, 65 S. Ct. 1031, 89 L. Ed. 1495 (1945); State v. Griffin, [supra, 162-63]. A trial court’s failure to instruct on any of these elements warrants reversal regardless of whether the defendant objected at trial. See State v. Kurvin, 186 Conn. 555, 561, 442 A.2d 1327 (1982).” State v. Harman, 198 Conn. 124, 133-34, 502 A.2d 381 (1985). “It cannot be considered harmless error for a jury ‘to find an accused guilty without even knowing what are the essential elements of the crimes charged.’ State v. Griffin, supra, 162-63 .... Put another way, the failure to instruct a jury on an essential element of a crime charged is error because it deprives the defendant of the right ‘to have the jury told what crimes he is actually being tried for and what the essential elements of those crimes are.’ United States v. Natale, 526 F.2d 1160, 1167 (2d Cir. 1975), cert. denied, 425 U.S. 950, 96 S. Ct. 1724, 48 L. Ed. 2d 193 (1976), citing United States v. Fields, 466 F.2d 119, 121 (2d Cir. 1972). Of course, any such error is not cured just because an appellate court is satisfied after the fact of conviction that sufficient evidence was before the jury so that it would or could have found that the state proved the missing element had the jury been properly instructed. After all, ‘when [the defendant] exercised his constitutional right to a jury, he put the [state] to the burden of proving the elements of the crimes charged to a jury’s satisfaction, not to ours. . . . ’ ” State v. Gabriel, 192 Conn. 405, 414, 473 A.2d 300 (1984).

It is clear that the trial court erred by failing to instruct the jury on all the essential elements of the crime charged. It is beyond peradventure that it was reasonably possible that the jury was misled by the court’s instructions. This is because the jury was not provided with the pertinent principles of substantive law to apply to the facts of the case and, therefore, could not have found each essential element proven beyond a reasonable doubt. State v. Griffin, supra, 163. This case is unlike others which have involved a defective instruction rather than no instruction on an essential element. See Henderson v. Kibbe, 431 U.S. 145, 97 S. Ct. 1730, 52 L. Ed. 2d 203 (1977); State v. Vessichio, supra, 648-49. State v. Smith, 194 Conn. 213, 216-20, 479 A.2d 814 (1984); State v. Griffin, supra, 160-65. Nor is it similar to cases which involve a claim that the court erred in failing to define an essential element. See State v. Vessichio, supra, 650-51; State v. Grant, 6 Conn. App. 24, 27-32, 502 A.2d 945 (1986). In those cases, a reviewing court was able to determine that it was not reasonably possible that the jury was misled by the trial court’s instructions, because the jury had at least been instructed to some extent on the applicable substantive law. This case, by contrast, requires no speculation as to the presence of jury confusion, because the complete omission of any instruction on larceny by receiving under General Statutes (Rev. to 1981) § 53a-119 (8) guaranteed that the jury was unable to perform its task properly.

We also decline to apply a harmless error analysis to this type of instructional error. We recognize that in Chapman v. California, 386 U.S. 18, 22, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied, 386 U.S. 987, 87 S. Ct. 1283, 18 L. Ed. 2d 241 (1967), the United States Supreme Court rejected the notion that all federal constitutional errors necessarily require reversal of criminal convictions. In that case, the court set forth the principle that a constitutional error may be held to be harmless if the reviewing court concludes that it was harmless beyond a reasonable doubt. In Chapman, however, and in the more recent case of Rose v. Clark, 478 U.S. 570, 577, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986), the court also recognized that some constitutional errors can never be treated as harmless. “[S]ome errors ‘are so fundamental and pervasive that they require reversal without regard to the facts or circumstances of the particular case.’ Delaware v. Van Arsdall, 475 U.S. 673, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986).” Young v. United States, 481 U.S. 787, 107 S. Ct. 2124, 2138-39, 95 L. Ed. 2d 740 (1987). “An error is fundamental if it undermines confidence in the integrity of the criminal proceeding. Rose v. Clark, [supra].Id.

Examples of constitutional errors that can never be considered harmless were enumerated in Rose v. Clark, supra, and include the use of a coerced confession; Payne v. Arkansas, 356 U.S. 560, 78 S. Ct. 844, 2 L. Ed. 2d 975 (1958); the complete denial of counsel; Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963); and the lack of an impartial judge. Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749 (1927). The Supreme Court also stated in Rose v. Clark, supra, that “harmless-error analysis presumably would not apply if a court directed a verdict for the prosecution in a criminal trial by jury . . . ‘regardless of how overwhelming the evidence.’. . . This rule stems from the Sixth Amendment’s clear command to afford jury trials in serious criminal cases. See Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968). Where that right is altogether denied, the State cannot contend that the deprivation was harmless because the evidence established the defendant’s guilt; the error in such a case is that the wrong entity judged the defendant guilty.” We conclude that the total failure in this case to instruct on the essential elements of the crime charged is analogous to a directed verdict.

The trial court, by its failure to instruct the jury on the essential elements, effectively deprived the jury of the opportunity to consider whether those elements were proven. The defendant, however, had elected a trial by jury and was entitled to have that entity apply the substantive law to the facts of the case. The United States Supreme Court warned that the error in Rose v. Clark, supra, was “ ‘distinguishable from other instructional errors that prevent a jury from considering an issue.’ ” Id., 580 n.8. It would therefore be inappropriate for this court to make the determination of whether the evidence supported a finding on each element of larceny by receiving. This is especially so since we must work with a cold record and have not had the opportunity to observe and assess the credibility of live witnesses.

This conclusion is consistent with the only case we have found which squarely faced the issue of whether “a trial court’s failure to instruct on an essential element of an offense can ever be harmless error.” Hoover v. Garfield Heights Municipal Court, 802 F.2d 168, 175 (6th Cir. 1986). The Sixth Circuit concluded, as do we, that such an error is one of the exceptional constitutional errors to which the Chapman harmless error analysis does not apply. Hoover v. Garfield Heights Municipal Court, supra, 178.

There is error, the judgment is set aside and the case is remanded for a new trial.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1981) § 53a-119 provides in relevant part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner.” This portion of the statute is unchanged.
      General Statutes (Rev. to 1981) § 53a-123 (a) (1) provides: “A person is guilty of larceny in the second degree when: (1) The property consists of a motor vehicle.” Subdivision (1) has been revised to provide: “(1) The property consists of a motor vehicle, the value of which exceeds five thousand dollars.” General Statutes § 53a-123 (a) (1).

       We note that the trial court failed to instruct on the value element of General Statutes (Rev. to 1981) § 53a-123 (a) (1). See footnote 1, supra. The defendant has not, however, raised any claim in this regard. See General Statutes § 53a-121 (a) (3) (when value of stolen property not ascertained, its value deemed to be less than fifty dollars).

       Subdivision (8) of General Statutes (Rev. to 1981) § 53a-119 provides, in relevant part “Receiving stolen property. A person is guilty of larceny by receiving stolen property if he receives, retains or disposes of stolen property knowing that it has probably been stolen or believing that it has probably been stolen, unless the property is received, retained or disposed of with purpose to restore it to the owner.” This part of the statute is unchanged.


text:
    State of Connecticut v. Edward Bondi State of Connecticut v. Jack Parascondola
    (5390)
    (5391)
    (5410)
    Dupont, C. J., Hull and Spallone, Js.
    Argued June 3
    decision released September 22, 1987

      Kenneth Wynne Bohonnon, with whom, on the brief, was R. William Bohonnon, for the appellants (defendants).

      Mitchell S. Brody, deputy assistant state’s attorney, with whom, on the brief, was Robert Katz, assistant state’s attorney, for the appellee (state).
   Hull, J.

After a trial to the court, the defendants were found guilty of operating their vessels in Connecticut waters for more than sixty days without being properly numbered and registered, in violation of General Statutes § 15-144 (h). Each was fined one hundred dollars. The cases were consolidated for appeal. From the judgment rendered, the defendants have appealed, claiming (1) that the evidence presented was insufficient to find violations of the statute, (2) that the defendants were not afforded their sixth amendment rights, (3) that General Statutes § 15-142 et seq. is “not fairly apportioned,” (4) that federally documented vessels are not subject to state imposed requirements of payment of local taxes as a precondition to registration, (5) that the tax imposed by General Statutes § 15-142 et seq. is violative of the United States constitution as a tonnage tax, (6) that the imposition of a use tax in this instance is an ad valorem tax, and (7) that administrative remedies need not be exhausted in this case.

The pertinent facts are as follows. The defendant Edward Bondi was at all relevant times the president of Bondi Partners, a Delaware corporation. That corporation purchased the vessel Bachelor Three in April, 1985, in Boston, Massachusetts, for $260,000. Neither sales nor use tax was paid on the boat. The Bachelor Three was documented for pleasure by the federal government on November 13, 1985.

Bruce Gagliardi, a boat patrol officer for the department of environmental protection (DEP), recorded in his official record that the Bachelor Three was docked in Connecticut waters for more than sixty days without proper numbering and registration. On August 4, 1985, and August 11,1985, a DEP boat patrol officer issued summonses to Bondi for violations of General Statutes § 15-144 (h). Bondi was tried separately for each violation.

The defendant Jack Parascondola was at all relevant times the president of Lady, Inc., a Delaware corporation. The corporation purchased the vessel Tender Lady in New York for $69,000. Neither sales nor use tax was paid on the boat. The Tender Lady was documented for pleasure by the federal government on February 14, 1984. Gagliardi recorded that the Tender Lady was docked in Connecticut waters for more than sixty days. A DEP boat patrol officer issued a summons to Parascondola on August 4, 1985, for violating General Statutes § 15-144 (h).

I

The defendants’ first claim challenges the sufficiency of different portions of the evidence. They assert that the evidence was insufficient to prove that the vessels had been “in operation” as required by General Statutes § 15-144 (h). The defendants, however, failed to preserve this portion of their sufficiency of the evidence claim by neglecting to raise it at trial or claim it for review under the narrow “exceptional circumstances” doctrine of State v. Evans, 165 Conn. 61, 69-71, 327 A.2d 576 (1973). We therefore decline to review the defendants’ claim of error. See State v. Vasquez, 9 Conn. App. 648, 654, 520 A.2d 1294 (1987).

The defendants also claim that the evidence was insufficient to establish that their vessels were present in Connecticut waters for more than sixty days in a calendar year. They maintain that their vessels were not subject to the numbering and registration requirements of General Statutes § 15-142 because of the insufficiency of the evidence concerning the amount of time their vessels were in Connecticut waters.

With respect to Bondi’s boat, a determination that the evidence in this area was insufficient would have no effect. The sixty day presence in Connecticut waters rule is significant only when the boat in question already has been issued a valid certificate of number either by the federal government or by another state. Without such documentation and a certificate of number, the mere presence of a vessel in Connecticut waters, regardless of the duration, would require proper registration with numbering by the state. See General Statutes § 15-142. Bondi’s boat had no documentation and no certificate of number, and thus was in violation of General Statutes §§ 15-142 and 15-144 (h) regardless of the amount of time it was actually in Connecticut waters.

With respect to Parascondola’s boat, we find that there is sufficient evidence in the record to sustain the court’s finding that his vessel was present in Connecticut waters for more than sixty days. “[T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt ‘does not require a court to “ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt.” ’ ... ‘Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . . .’” (Emphasis in original; citation omitted.) State v. Scielzo, 190 Conn. 191, 197, 460 A.2d 951 (1983), quoting Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).

Boat patrolman Gagliardi testified for the state that he visited various marinas daily and recorded the presence of unregistered vessels. His records and testimony establish that Bondi’s boat was in Connecticut waters for seventy-six days in 1984, and that Parascondola’s boat was present for sixty-six days during that same period.

We cannot review the credibility of a witness’ testimony. That prerogative rests within the exclusive purview of the trier of fact. State v. Crump, 201 Conn. 489, 491, 518 A.2d 378 (1986). The trial judge chose to accept Gagliardi’s accounting of the events. Thus, there is a sufficient evidentiary basis in the record to support the trier’s determination that Parascondola’s vessel was present in Connecticut waters for more than sixty days.

II

The defendants’ second claim is that their sixth amendment right to cross-examine witnesses was abridged because they were not afforded the opportunity to cross-examine Gagliardi concerning his refusal to testify in three trials that occurred subsequent to the close of the present cases. The defendants did cross-examine Gagliardi, but did not, and could not cross-examine him regarding testimony he did not give.

The defendants cite no authority for the proposition that their sixth amendment rights extend to proceedings against other defendants that have not yet transpired. In light of the defendants’ complete failure to provide any legal precedent for their claim, we will not review it.

III

The defendants’ next claim is that General Statutes §§ 15-142 through 15-144 are unconstitutional because boat registration is made contingent upon payment of a use tax that violates the commerce clause and supremacy clause of the federal constitution.

With respect to the defendants’ commerce clause claim, we need not reach the question of the statute’s constitutionality because the defendants did not prove that their vessels were engaged in interstate commerce.

The defendants cite State v. Zach, 198 Conn. 168, 502 A.2d 896 (1985), and Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 97 S. Ct. 1076, 51 L. Ed. 2d 326, reh. denied, 430 U.S. 976, 97 S. Ct. 1669, 52 L. Ed. 2d 371 (1977), in support of their contention. In Complete Auto Transit, Inc., the United States Supreme Court set out a four-prong analysis to aid in the determination of whether there exists an impermissible burden on interstate commerce. The analysis cannot be done, however, without some showing that interstate commerce exists in this case. The only evidence in the record concerning the use of the vessels was that they were used exclusively for pleasure. Bondi never asserted that his vessel was engaged in any form of interstate commerce. Parascondola stated at trial that his vessel was chartered for pleasure fishing. He offered no evidence, however, in support of that contention. “We believe that more than a bald assertion is necessary to sustain the [burden of proving] that these vessels were engaged in interstate commerce.” State v. Zach, supra, 181; see also Container Corporation of America v. Franchise Tax Board, 463 U.S. 159, 165-66, 103 S. Ct. 2933, 77 L. Ed. 2d 545, reh. denied, 464 U.S. 909, 104 S. Ct. 265, 78 L. Ed. 2d 248 (1983). Absent such evidence, we will not consider a claim that the commerce clause was violated.

IV

The defendants’ next argument is that federally documented vessels are not subject to state imposed requirements of payment of use tax as a precondition to registration. As the record indicates that only Parascondola’s vessel was federally documented at the time the summonses were issued, we will consider this claim only as to him.

The defendants presume, in making their argument, that the payment of the use tax must be made before registration can be obtained. An analysis of the statutory scheme makes evident, however, that payment of the use tax may not be required before registration is permitted. The defendants are obliged to file a use tax return pursuant to General Statutes § 12-414 (2). Even if the defendants considered that the use tax was not warranted, the return should have been filed. The use tax provisions then furnish two avenues for contesting payment. First, the defendants had the option of filing a use tax return detailing the reasons that no tax was payable. If the commissioner then determined, to the contrary, that a deficiency assessment was warranted; see General Statutes § 12-415; the defendants could seek reassessment; see General Statutes § 12-418 (1); and appeal a further adverse decision directly to the Superior Court. General Statutes § 12-422.

The second option would be to file a return, pay the use tax, and then seek a refund. General Statutes § 12-425 (2). If the commissioner refused to refund the amount paid, the decision could be appealed to the Superior Court. General Statutes § 12-422.

In light of that statutory scheme, it is evident that the payment of local taxes is not necessarily a precondition to registration of a vessel. The defendants’ claim must therefore fail.

V

The defendants next claim that the application of a use tax against their boats is tantamount to the imposition of an impermissible tonnage tax. Article one, § 10, clause 3, of the United States constitution provides that “[n]o State shall, without the Consent of Congress, lay on Duty of Tonnage . ...” In Clyde Mallory Lines v. Alabama, 296 U.S. 261, 265-66, 56 S. Ct. 194, 80 L. Ed. 215 (1935), the United States Supreme Court defined the duty on tonnage as follows: “[T]he prohibition against tonnage duties has been deemed to embrace all taxes and duties regardless of their name or form, and even though not measured by the tonnage of the vessel, which operate to impose a charge for the privilege of entering, trading in, or lying in a port. ...” (Citations omitted.)

Once again the defendants ignore the statutory scheme involved here. They have not proved that they will ever have to pay that tax. The statutory scheme provides for exceptions to the requirement that use tax be paid on vessels in Connecticut waters for more than sixty days. “ ‘Determination of the scope and constitutionality of legislation in advance of its immediate adverse effect in the context of a concrete case involves too remote and abstract an inquiry for the proper exercise of the judicial function.’ International Longshoremen’s & Warehousemen’s Union, Local 37 v. Boyd, 347 U.S. 222, 224, 74 S. Ct. 447, 98 L. Ed. 650 (1954). In the absence of weighty countervailing circumstances, facial invalidation of a statute is improvident. Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 501-502, 105 S. Ct. 2794, 86 L. Ed. 2d 394 (1985).” Motor Vehicle Manufacturing Assn. of the United States, Inc. v. O’Neill, 203 Conn. 63, 75, 523 A.2d 486 (1987).

As the defendants have not paid the tax, and have not shown that they will ever be required to pay the tax, this claim is not ripe and will not be considered by this court.

For the same reason, we do not address the defendants’ claim that imposition of a use tax in this instance is an ad valorem tax.

There is no error.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1985) § 15-144 provides in pertinent part: “(a) Any owner desiring to obtain a vessel registration number or registration decal shall apply to the commissioner of motor vehicles and shall file evidence of ownership by affidavit or document. Upon receipt of an application in proper form and the numbering fee, the commissioner of motor vehicles shall assign a registration number or registration decal and provide the owner with a temporary certificate of number or temporary certificate of decal. The commissioner of motor vehicles shall issue two registration decals and a permanent certificate. A registration decal shall be displayed on each side of the vessel at the bow in a manner prescribed by the commissioner of environmental protection. The certificate shall state the name of the owner, his address, a description of the vessel, its hull identification number, the expiration date of the certificate and such other information as the commissioner of environmental protection may prescribe by regulations. Such certificate shall be carried aboard and shall be available for inspection upon the vessel for which it is issued whenever the owner or any person authorized by him is aboard such vessel, except that the certificate of number for a vessel which is less than twenty-six feet and which is rented for noncommercial purposes for less than twenty-four hours may be retained on shore by the owner of such vessel or his agent at the place where such vessel departs or returns. If such certificate is retained on shore, a rental agreement signed by the owner or his agent and by the person renting the vessel shall be carried aboard such vessel and shall be available for inspection. Such rental agreement shall contain the vessel number which appears on the certificate of number and the length of time for which such vessel is rented.
      * * #
      “(h) Any person who operates or any owner who permits the operation of a vessel on the waters of this state which has not been numbered or registered in accordance with the provisions of this chapter and any other applicable section of the general statutes, shall have committed a violation and shall be fined not less than twenty-five nor more than two hundred dollars.”
      General Statutes § 15-142 provides in pertinent part: “(a) Every vessel used upon the waters of this state shall be numbered, except as otherwise provided in this section and section 15-143. For purposes of this section and said section 15-143, any launching, mooring or operation of a vessel upon the waters of this state shall be deemed to be a use of such vessel upon the waters of this state. No person shall launch, moor or operate and no owner shall permit the launching, mooring or operation of any vessel unless (1) the owner holds a valid, effective certificate of number awarded by this state or by the United States or by another state pursuant to the provisions of the Federal Boat Safety Act of 1971 and the identification number set forth in such certificate is displayed on each side of such vessel at the bow, (2) the owner holds a valid marine document issued by the United States Coast Guard or (3) such vessel is otherwise not required to be numbered in this state under the provisions of said section 15-143.
      “(b) Each vessel with respect to which the owner holds a valid marine document issued by the United States Coast Guard, a valid certificate of number awarded by the United States pursuant to the provisions of the Federal Boat Safety Act of 1971 or a valid certificate of number awarded by another state, which vessel is used upon the waters of this state for more than sixty days in any calendar year, shall be required to display a Connecticut registration decal. No person shall launch, moor or operate and no owner shall permit the launching, mooring or operation of any such vessel unless (1) the owner holds a valid, effective certificate of registration awarded by this state and (2) the registration decal is displayed as directed by the commissioner of environmental protection, provided the requirements of this subsection shall not be applicable, in the period commencing on the first day of October in any year to and including the thirteenth day of April next succeeding, to any such vessel in use upon the waters of this state exclusively for purposes of delivery of such vessel to a facility in this state for storage, including dry storage and storage in water by means of apparatus preventing ice damage to the hull, maintenance or repair or the actual process of storage, maintenance or repair of such vessel.”

         We agree that the defendants have presented a colorable constitutional challenge to General Statutes § 15-142 et seq., and thus are not required to exhaust administrative remedies. LaCroix v. Board of Education, 199 Conn. 70, 80, 505 A.2d 1233 (1986).

       The statutory scheme can be summarized as follows: General Statutes § 15-142 (a) requires every vessel operating in Connecticut waters to display a valid registration number, issued by the state of Connecticut, another state or the United States. Vessels bearing a valid registration number issued by another state or the United States are expressly exempted from the Connecticut vessel registration numbering system. General Statutes § 15-143 (a) (6). Such vessels, however, if used in Connecticut waters for more than sixty days in any calendar year, must display a valid Connecticut registration decal. See General Statutes § 15-142 (b). A registration number and a registration decal are obtained in the same manner. The registrant must file the proper application form and pay a registration fee to the commissioner of motor vehicles. General Statutes § 15-144 (a).The failure to display a proper registration number or decal in accordance with the statute is punishable by a fine of not less than $25 nor more than $200. General Statutes § 15-144 (h).

       Bondi’s boat was federally documented on November 13, 1985, some three months after the summonses were issued to him.

       The same evidentiary basis was also sufficient to determine that Bondi’s boat was present in Connecticut waters for sixty days.

       Section 8 of article first of the United States constitution provides in relevant part: “The Congress shall have Power ... To regulate Commerce with foreign Nations, and among the Several States, and with the Indian Tribes . . . .”

       Clause 2 of article six of the United States constitution provides in relevant part: “This Constitution, and all the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

       In Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 97 S. Ct. 1076, 51 L. Ed. 2d 326, reh. denied, 430 U.S. 976, 97 S. Ct. 1669, 52 L. Ed. 2d 371 (1977), the Mississippi tax on the privilege of doing business in the state was held not to violate the commerce clause when it applied to an interstate activity with a substantial nexus with the taxing state (here the transportation by motor carrier in Mississippi to Mississippi dealers of cars manufactured outside the state), is fairly apportioned, does not discriminate against interstate commerce, and is fairly related to the services provided by the state.


author: Dupont, C. J.

text:
    State of Connecticut v. Gary M. Taylor
    (4557)
    Dupont, C. J., Hull and Daly, Js.
    Argued May 13
    decision released September 22, 1987

      Hubert J. Santos, for the appellant (defendant).

      Michael E. O’Hare, assistant state’s attorney, with whom, on the brief, was Terrence A. Sullivan, state’s attorney, for the appellee (state).
   Dupont, C. J.

The defendant entered a plea of nolo contendere to the charge of operating a motor vehicle while under the influence of intoxicating liquor, in violation of General Statutes § 14-227a (a). As provided in General Statutes § 54-94a, the defendant appeals from the trial court’s denial of his amended motion to suppress two breathalyzer tests. The purpose of the defendant’s plea of nolo contendere, according to his counsel at the time the plea was entered, was to contest on appeal “those issues raised by our Motion to Suppress and our Memorandum in support thereof.”

The parties stipulated to certain relevant facts. In the early morning of February 15, 1985, the defendant was operating a motor vehicle on a state highway. A state trooper who observed the defendant’s operation of the motor vehicle stopped him because the trooper believed the defendant’s car was being operated erratically. The trooper administered a field test for sobriety, concluded that the defendant had failed it, and then arrested the defendant for operating his vehicle while under the influence of intoxicating liquor. He advised the defendant of his constitutional rights in accord with the holding of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and as required by General Statutes § 14-227b (b).

The officer then requested that the defendant consent to a blood, breath or urine test and advised him, pursuant to § 14-227b (b), that if he did not submit to the test his motor vehicle operator’s license would be suspended for six months and that evidence of such refusal would be admissible and might be used against him in any criminal prosecution. As a result of the trooper’s warning concerning loss of license for failure to take the test, the defendant agreed to submit to the breath test because he feared the loss of his license, and for no other reason. After the first test was administered, the defendant requested a second test. The results of both tests were probative of the fact that the defendant was driving while under the influence of intoxicating liquor.

The defendant filed a pretrial motion to suppress the results of the two breathalyzer tests. At the hearing on the motion, the defendant claimed that the results of the tests were inadmissible on two grounds. The first ground was that the defendant’s consent to the tests after being warned of the consequences of refusal did not constitute the voluntary consent to a search required by the fourth amendment to the United States constitution; the second ground was that § 14-227b (b) is unconstitutional because it violates both the United States and the Connecticut constitutions. The second claim, insofar as it relates to the state constitution, has not been briefed by the defendant and is not considered by this court.

On appeal, the defendant claims that the trial court erred in failing to grant his motion to suppress because his consent to the tests was not voluntary as is required by the fourth amendment. He further argues, for the first time, that § 14-227a (c) affords greater protection to a defendant than the fourth amendment to the United States constitution. The latter argument was not made to the trial court and will not be considered by this court.

The issue on appeal, thus, is whether the motion to suppress was erroneously denied because the evidence of the breathalyzer test results was not acquired with the voluntary consent required for a lawful search in accord with fourth amendment principles. See Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). Although the defendant does not expressly argue in his brief that § 14-227b (b) is unconstitutional, he claims that because he took the tests for the sole reason that, under the statute, he would lose his driver’s license if he did not, his consent to the test was not voluntary and, therefore, violative of the fourth amendment. He argues, in essence, that the consent implied in § 14-227b (b) is prohibited by the fourth amendment because it is obtained through coercion and the threat of loss of a driver’s license. On review, we must therefore determine whether the taking of the tests was an “unreasonable search and seizure” prohibited by the fourth amendment, and, whether that protection can only be overcome by either the defendant’s voluntary consent, unfettered by § 14-227b (b), or a warrant authorizing the search.

It is beyond dispute that searches conducted without a warrant are per se unreasonable under the fourth amendment, subject only to a few specifically established and well delineated exceptions. Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S. Ct. 2022, 29 L. Ed. 2d 564, reh. denied, 404 U.S. 874, 92 S. Ct. 26, 30 L. Ed. 2d 120 (1971). Consent is one of these exceptions. State v. Harris, 10 Conn. App. 217, 223-24, 522 A.2d 323 (1987). Exigent circumstances is another. Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966).

The defendant claims that the searches were not lawful because they did not fall under the consent exception to the fourth amendment prohibition against unreasonable searches and seizures. The defendant makes no claim of impropriety with respect to the actions of the arresting officer or the testing procedure itself. The record shows that the arresting officer followed the steps mandated by § 14-227b (b) with exactitude, in that the defendant was apprised of his constitutional rights, informed of his right to contact an attorney prior to the performance of the test, requested to submit to the test, and informed that his license would be suspended if he refused to submit to such test and that evidence of such refusal would be admissible and might be used against him in any criminal prosecution.

The defendant disingenuously argues that his consent was not free and voluntary, notwithstanding the fact that it was obtained by following, to the letter, the mandate of § 14-227b (b). Connecticut “has declined to authorize its police officers to administer a blood-alcohol test against the suspect’s will. Rather, to avoid violent confrontations, the . . . statute permits a suspect to refuse the test, and indeed requires police officers to inform the suspect of his right to refuse. . . . This permission is not without a price, however. [Connecticut] law authorizes the [commissioner of motor vehicles], after providing the person who has refused the test an opportunity for a hearing, to revoke for [six months] . . . the person’s license to drive .... Such a penalty ... is unquestionably legitimate, assuming appropriate procedural protections. See Mackey v. Montrym, [443 U.S. 1, 17-19, 99 S. Ct. 2612, 61 L. Ed. 2d 321 (1979)].” (Citations omitted.) South Dakota v. Neville, 459 U.S. 553, 559-60, 103 S. Ct. 916, 74 L. Ed. 2d 748 (1983). Section 14-227b (b) contains appropriate procedural protections. See Buckley v. Muzio, 200 Conn. 1, 8, 509 A.2d 489 (1986); Commissioner v. Funk, Pa. Super. 233, 385 A.2d 995 (1978).

The defendant’s dilemma was that if he consented to the search, the analysis would almost certainly precipitate a conviction, but that if he did not consent to the search, he would suffer a loss of license. Such a choice does not vitiate apparent consent if no force, deception or coercion is used or threatened. See United States v. Piet, 498 F.2d 178, 182 (7th Cir. 1974); Gorman v. United States, 380 F.2d 158, 165 (1st Cir. 1967). Nor does the choice vitiate the implied consent of § 14-227b (a). See Commissioner v. Funk, supra.

The defendant himself produced the situation which made it difficult for him to avoid giving his apparent or implied consent. See Gorman v. United States, supra. The defendant chose to engage in a regulated activity, that of driving a motor vehicle, and thereby became subject to General Statutes § 14-227b. See Volck v. Muzio, 204 Conn. 507, 520-21, 529 A.2d 177 (1987).

In the case at bar, as in Schmerber v. California, supra, the defendant was lawfully arrested for driving while under the influence of intoxicating liquor. He has not challenged the propriety of that arrest. The defendant’s erratic driving and failure of the field sobriety test were the factual bases of the officer’s inference that the breath test was likely to reveal evidence of the offense. It was equally reasonable for the officer to infer that such evidence might disappear, by the dissipation of the liquor over time, absent an immediate search.

We have recently held, in accord with Schmerber v. California, supra, and Cupp v. Murphy, 412 U.S. 291, 93 S. Ct. 2000, 36 L. Ed. 2d 900 (1973); that blood alcohol tests are reasonable even when the defendant has not yet been formally arrested. State v. Kristy, 11 Conn. App. 473, 528 A.2d 390 (1987). The tests there were permissible because there was probable cause to arrest the defendant, the search was minimally intrusive, and the evidence of the crime was subject to rapid dissipation. State v. Kristy, supra, 477. In this case the defendant had already been formally arrested, and as in Kristy, the existence of probable cause to arrest is undisputed. The breath test administered in this case was even less intrusive than the blood sampling of Kristy. The evidence which both breathalyzer and blood tests seek to secure is that of blood alcohol content, which “begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system.” Schmerber v. California, supra, 770.

Whether the denial of his motion to suppress is analyzed in terms of statutory implied consent or in terms of the reasonableness of the search in view of the exigent circumstances, the denial was warranted. See Cupp v. Murphy, supra; Buckley v. Muzio, supra. No matter how the defendant slices his constitutional cake, the result remains the same. The motion to suppress should have been denied because there was no unreasonable search.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 54-94a provides: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.”

       General Statutes § 14-227b (b) provides: “If any such person, having been placed under arrest for operating a motor vehicle while under the influence of intoxicating liquor or any drug or both or while his ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor, and thereafter, after being apprised of his constitutional rights, having been requested to submit to a blood, breath or urine test at the option of the police officer, having been afforded a reasonable opportunity to telephone an attorney prior to the performance of such test and having been informed that his license or nonresident operating privilege will be suspended in accordance with the provisions of subsection (d), (e) or (f) of this section if he refuses to submit to such test and that evidence of such refusal shall be admissible in accordance with subsection (f) of section 14-227a and may be used against him in any criminal prosecution, refuses to submit to the designated test, the test shall not be given; provided, if the person refuses or is unable to submit to a blood test, the police officer shall designate the breath or urine test as the test to be taken. The police officer shall make a notation upon the records of the police department that he informed the person that his license or nonresident operating privilege would be suspended if he refused to submit to such test.”

       The first breath test resulted in a reading of .185, and the second, in a reading of .159.

       The defendant’s amended motion to suppress, the denial of which he appeals reads as follows: “Pursuant to the Fourth, Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States, Article 1, Section 8 and 20 of the Connecticut Constitution and Section 820, et. seq. of the Practice Book, the Defendant, GARY M. TAYLOR, moves to suppress as evidence against him the results of two chemical tests administered to the Defendant by an officer of the Connecticut State Police for the reason that said test results were the product of an unreasonable search and seizure in that:
      “1. Defendant did not voluntarily consent to the taking of said test for the reason that Defendant agreed to take said tests only after he was advised by a Connecticut State Trooper that his failure to submit to the tests would result in the suspension of his licensed operating privilege in the State of Connecticut and that said refusal to submit to the test would be admissible and could be used against him in any criminal prosecution.
      “2. Defendant’s agreement to take said tests was the result of the application of an unconstitutional statute to wit: Section 14-227b (b)’s requirement that a person’s licensed operating privilege in the State of Connecticut be suspended for failure to submit to a test and that said refusal to submit to a test is admissible and can be used against a person in any criminal prosecution violates the Fourth, Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States, Article first, Section 8 of the Connecticut Constitution and the laws of the State of Connecticut.
      “The parties have simultaneously filed with this Motion, a Stipulation regarding the facts as they relate to the issues raised to the instant motion.”

       The following excerpts of the challenge raised by the defendant’s attorney at the hearing on his motion to suppress reveals the scope of the reservation sought pursuant to General Statutes § 54-94a: “[I] would still submit that if, in fact, consent is an element that must be proven, and consent is waived in a coercive way, then the fourth amendment right or for that matter the fifth amendment right might be implicated . . . . ”
      “But I think it’s a violation of the fourth amendment in that it constitutes a seizure with out consent.”
      The defendant thus did not at that time claim that the statute under which he was charged gave him more protection than the fourth amendment because General Statutes § 14-227a (c) (1) requires as a condition precedent to admissibility that the defendant has “consented to the taking of the test upon which such analysis is made . . . . ” The defendant was required to raise his claims distinctly at trial. Practice Book § 4185. “ ‘The requirement that [a] claim be raised “distinctly” means that it must be “so stated as to bring to the attention of the court the precise matter on which its decision is being asked.” (Emphasis added.) Woodruff v. Butler, 75 Conn. 679, 682, 55 A. 167 (1903).’ State v. Carter, 198 Conn. 386, 396, 503 A.2d 576 (1986).” State v. Sullivan, 11 Conn. App. 80, 101, 525 A.2d 1353 (1987).

       Under General Statutes § 14-227b (a), “any person who operates a motor vehicle in this state is deemed to have given his consent to a chemical analysis of his blood, breath or urine . . . . ” The defendant has not attacked the constitutionality of that statute.

         The claim that the second test was administered in violation of the fourth amendment merits little consideration. The test was given at the request of the defendant. Furthermore, our holding that the first test should not have been suppressed as violative of the fourth amendment, leaves the defendant bereft of his argument that the second test should be suppressed as “fruit of the poisonous tree.”


author: Per Curiam:.

text:
    Ethel Cantor v. Department of Income Maintenance et al.
    (4573)
    Dupont, C. J., Spallone and Daly, Js.
    Submitted on briefs June 12
    decision released September 22, 1987

      Michael J. Mullin and Herbert I. Cantor filed a brief for the appellant (plaintiff).

      Joseph I. Lieberman, attorney general, and Wendell S. Gates, assistant attorney general, filed a brief for the appellees (defendants).
   Per Curiam:.

The plaintiff is appealing from the judgment of the trial court dismissing her administrative appeal from a decision of the defendant commissioner of the department of income maintenance. The defendant had denied the plaintiffs decedent medical benefits under the Social Security Act, title XIX, 42 U.S.C. § 1396 et seq.

The principal issue raised in this appeal is whether the state may deny medical benefits under title XIX to the settlor-beneficiary of a trust if the trust empowers the trustees to invade the trust principal for the benefit of the settlor-beneficiary in the case of medical emergency. The trial court, in dismissing the plaintiff’s appeal, answered in the affirmative. The plaintiff argues that the trial court erred (1) in concluding that, under Maryland law, the entire corpus of the trust is subject to invasion for the benefit of the beneficiary’s creditors, (2) in failing to consider whether an emergency occurred, and (3) in failing to consider whether the hearing officer erred in concluding that a “sickness” contemplated by § 3 of the trust agreement existed or had occurred.

The trial court, Satter, J., filed a complete, well reasoned and legally sound memorandum of decision which indicates that the trial court afforded the plaintiffs administrative appeal the appropriate scope of review, analyzed the issues raised, cited proper authority and drew legal conclusions in conformity with the law. The trial court’s decision so completely articulates the issues involved in this appeal and so adequately explains the legal basis for its conclusions that 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); State v. Barrett, 10 Conn. App. 667, 668-69, 525 A.2d 139 (1987).

Accordingly, the trial court’s memorandum of decision filed in Cantor v. Department of Income Maintenance, 40 Conn. Sup. 554, 531 A.2d 608 (1987), should be referred to for a detailed discussion.

There is no error.

       On June 11,1987, following the death of the plaintiff Ethel Cantor, we granted the motion of Herbert I. Cantor, executor of the estate of Ethel Cantor, to be substituted as appellant and allowed him to appear pro se.

       The second and third claims of error relate to the factual finding of the fair hearing officer, which was upheld by the trial court, that the plaintiffs medical condition constituted an emergency which had arisen due to sickness. That factual determination was made in reliance upon the commissioner’s initial memorandum of decision, which stated that the medical records of the plaintiff had been reviewed, and that an unexpected stroke had been suffered by the plaintiff.
      At the time of the fair hearing, no objection was raised to the introduction of this memorandum, nor were any attempts made to refute the conclusion regarding the plaintiffs medical condition, or to cross-examine the author of the memorandum. Since the plaintiff offered no objection to the memorandum, the fair hearing officer was entitled to consider all of the information contained therein when he rendered his decision. See Welch v. Zoning Board of Appeals, 158 Conn. 208, 212-14, 57 A.2d 795 (1969). There is no indication in the record that the plaintiff was deprived of due process by the fair hearing officer’s restriction of her introduction of evidence, nor did he deprive her of her right to call and cross-examine the author of the memorandum. Id.
      The trial court did not directly address this finding in its decision, but implicitly upheld it in its decision. The issue was raised only in a brief colloquy, which referred not to the hearing officer’s reliance upon the memorandum, but focused on whether a prolonged need for care constituted an emergency. The plaintiff’s claim of a denial of due process due to the use of the memorandum as a basis for finding an emergency due to sickness was never raised prior to this appeal. If a proper challenge to the memorandum had been raised at the hearing and before the trial court, and the trial court had failed to address the claim, the plaintiff could have assured us a proper record for review by way of a motion for articulation of the trial court’s findings of fact and conclusions of law. See J. M. Lynne Co. v. Geraghty, 204 Conn. 361, 376-77, 528 A.2d 786 (1987); Barnes v. Barnes, 190 Conn. 491, 493, 460 A.2d 1302 (1983). “It is, of course, the responsibility of the appellant to provide an adequate record for review; Practice Book § 4061 . . . .” J. M. Lynne Co. v. Geraghty, supra, 376.