text:
    State of Connecticut v. Floyd Williams
    (9751)
    Dupont, C. J., Lavery and Landau, Js.

      Argued January 13
    decision released May 26, 1992

      Elizabeth M. Inkster, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald D. Browne, state’s attorney, and Henry J. Lyons, assistant state’s attorney, for the appellee (state).
   Landau, J.

The defendant, Floyd Williams, appeals from a judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2) and assault in the first degree in violation of General Statutes § 53a-59 (a) (1). The defendant claims that the trial court improperly (1) permitted the state to comment on the defendant’s pretrial silence in violation of his constitutional right to remain silent and his right to due process, (2) admitted evidence indicative of, and instructed the jury on, the defendant’s consciousness of guilt, (3) enlarged the offenses with which the defendant was charged by including in its instruction uncharged theories of liability in violation of his right to notice and due process, and (4) instructed the jury on inferences and circumstantial evidence. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On the evening of May 25,1988, James Allen and Debra Lindsay went to Faces Cafe in Bridgeport. At some point during the evening they went to another bar, and then returned to Faces. Upon their return, Lindsay entered the bar. Before Allen entered the bar, he was approached by the defendant, who placed a 9 millimeter gun to his head and demanded his money. At about the same time, another individual, Robert Pay-ton, fired a shotgun into the air. The defendant took $20 and a sweater from the victim, Allen, and as he backed away toward the car of his companion, David Goodman, he shot the victim once in the right arm.

The defendant and Goodman fled in Goodman’s car and drove to the police station. Goodman went inside to report that someone had been shot, and the defendant remained in the car. Neither confessed to the shooting. The victim was interviewed by the police after undergoing extensive surgery and at that time identified the defendant by name as the individual who shot him. An arrest warrant was issued for the defendant.

657

A second arrest warrant was issued for the defendant in connection with a murder committed on August 28, 1989. On October 28,1989, two months after the murder and almost one and one-half years after the assault on Allen, a search warrant for the house of the defendant’s mother was executed. The defendant was found hiding in the attic and was arrested.

I

The defendant first claims that the trial court improperly permitted the state to cross-examine him concerning his pretrial silence and to comment on that silence during closing argument, in violation of his constitutional right to remain silent under the strictures of Doyle v. Ohio, 426 U.S. 610, 619, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976). He argues that the prosecutor’s breach of his constitutional rights to remain silent and to due process and the denigration of the right to counsel independently and collectively require that his convictions be set aside and a new trial ordered. We disagree.

Initially, we note that the defendant failed to raise this claim at trial. While we do not generally entertain claims not raised at trial, we will review claims that meet the standard for reviewability set forth by our Supreme Court in State v. Evans, 165 Conn. 61, 69-70, 327 A.2d 576 (1973) and State v. Golding, 213 Conn. 233, 239-42, 567 A.2d 823 (1989). Both the Supreme Court and this court have reviewed similar claims in the past. See State v. Jones, 215 Conn. 173, 182, 575 A.2d 216 (1990); State v. Hull, 210 Conn. 481, 486, 556 A.2d 154 (1989); State v. Plourde, 208 Conn. 455, 462, 545 A.2d 1071 (1988), cert. denied, 488 U.S. 1034, 109 S. Ct. 847, 102 L. Ed. 2d 979 (1989); State v. Apostle, 8 Conn. App. 216, 221, 512 A.2d 947 (1986). Although the record here is adequate to review the claim concerning the use of the defendant’s prearrest and postarrest silence and although it is of constitutional magnitude alleging a violation of a fundamental constitutional right, we conclude that the alleged violation does not clearly exist and that the defendant was not deprived of a fair trial as to the prearrest silence. We further conclude that a harmless error analysis as to the postarrest silence reveals that the state proved its harmlessness beyond a reasonable doubt.

The defendant’s complaint of a Doyle violation is twofold. The defendant argues that the prosecutor improperly commented on both his prearrest and postarrest silence. During cross-examination of the defendant the following colloquy occurred:

“Q. When you say you didn’t do the shooting, I just want to ask you this. You didn’t do the shooting—why didn’t you tell [the police] that you didn't do the shooting [when you went to the police station on the night of the shooting]?
“A. I don’t remember them asking me that.
“Q. Do you remember being outside the police station the night of the shooting?
“A. Yes.
“Q. You didn’t go in there at all and tell them that you didn’t do the shooting?
“A. No.
“Q. And from May 25, 1988, to October 20, 1989, you never told the police that you did not do the shooting; is that right?
“A. No.
“Q. And from October 29, 1989, up to the present day, you never told the police that you didn’t shoot Mr. Allen?
“A. No, I don’t remember.”

Additionally, in closing argument the prosecutor stated: “Now it’s the question of why didn’t Mr. Williams tell the police. . . . Mr. Goodman stated that on the very night of the shooting, Goodman claimed to have driven Mr. Williams to the police station. . . . Why didn’t Mr. Williams at that point [go into the police station]?”

“Doyle v. Ohio, [supra], proscribes the use for impeachment purposes of a defendant’s silence subsequent to his arrest and after receiving Miranda warnings. ‘The point of the Doyle holding is that it is fundamentally unfair to promise an arrested person that his silence will not be used against him and thereafter to breach that promise by using the silence to impeach his trial testimony.’ ” (Emphasis omitted.) State v. Shashaty, 205 Conn. 39, 48, 529 A.2d 1308 (1987), cert. denied, 484 U.S. 1027, 108 S. Ct. 753, 98 L. Ed. 2d 766 (1988), quoting Wainwright v. Green field, 474 U.S. 284, 292, 106 S. Ct. 634, 88 L. Ed. 2d 623 (1986). Doyle applies only to cases involving custodial interrogation and the focus is on the period immediately following the defendant’s receipt of Miranda warnings. State v. Paulino, 26 Conn. App. 86, 93, 598 A.2d 666 (1991), cert. granted on other grounds, 221 Conn. 907, 600 A.2d 1361 (1992); State v. Henderson, 24 Conn. App. 295, 299, 588 A.2d 224 (1991).

The defendant’s reliance on Doyle to support his argument that comment on his prearrest silence violated his due process rights and his right to remain silent is misplaced. The defendant seeks to extend the prohibition against evidence of postarrest silence of an accused to the period prior to his arrest. The Doyle court based its holding that “impeachment of a defendant through evidence of his silence following his arrest and receipt of Miranda warnings violates due process”; State v. Plourde, supra, 465; on two considerations: “First, it noted that silence in the wake of Miranda warnings is ‘insolubly ambiguous’ and consequently of little probative value. Second and more important, it observed that ‘while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.’ ” Id., 465-66; Greer v. Miller, 483 U.S. 756, 762-63, 107 S. Ct. 3102, 97 L. Ed. 2d 618 (1987); Wain-right v. Greenfield, supra, 291.

Although it is “fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial”; Doyle v. Ohio, supra, 618; prosecutorial comment on the defendant’s prearrest silence, however, can be used for purposes of impeachment and does not create a constitutional violation. Jenkins v. Anderson, 447 U.S. 231, 235, 100 S. Ct. 2124, 65 L. Ed. 2d 2486 (1980); State v. Leecan, 198 Conn. 517, 521, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986). Consequently, we conclude that the state’s use of the defendant’s prearrest silence to impeach his credibility was not improper.

Our inquiry does not end here, however, because the prosecutorial comments and cross-examination subject to our review involve both prearrest and postarrest silence. Here, we conclude that the prosecutor’s question to the defendant “[a]nd from October 29, 1989, up to the present day, you never told the police that you didn’t shoot Mr. Allen” was improper because it involves postarrest silence. We must now determine “whether it is clear beyond a reasonable doubt that the jury would have returned a guilty verdict without the impermissible questioning.” See State v. Morrill, 197 Conn. 507, 539, 498 A.2d 76 (1985).

“ ‘A Doyle violation may, in a particular case, be so insignificant that it is clear beyond a reasonable doubt that the jury would have returned a guilty verdict without the impermissible question or comment upon a defendant’s silence following a Miranda warning. Under such circumstances, the state’s use of a defendant’s postarrest silence does not constitute reversible error.’ State v. Silano, 204 Conn. 769, 781, 529 A.2d 1283 (1987). ‘ “The [error] has similarly been [found to be harmless] where a prosecutor does not focus upon or highlight the defendant’s silence in his cross-examination and closing remarks and where the prosecutor’s comments do not strike at the ‘jugular’ of the defendant’s story.” ’ Id.; United States v. Davis, 546 F.2d 583, 594 (5th Cir.), cert. denied, 431 U.S. 906, 97 S. Ct. 1701, 52 L. Ed. 2d 391 (1977); State v. Pellegrino, 194 Conn. 279, 292, 480 A.2d 537 (1984); State v. Zeko, 177 Conn. 545, 555, 418 A.2d 917 (1979).” State v. Hull, supra, 492; see also State v. Casey, 201 Conn. 174, 185, 513 A.2d 1183 (1986).

The state’s reference to the defendant’s postarrest silence was limited. Only one question during the defendant’s cross-examination addressed this issue. We cannot say that the isolated reference to the postarrest silence, when viewed in the context of the entire proceeding, denied the defendant any constitutional right attendant to a fair trial. It is clear from the record that, notwithstanding the reference to the defendant’s postarrest silence, there was sufficient evidence from which the jury could reasonably have found the defendant guilty of the charged offenses beyond a reasonable doubt. “Although a finding of harmless error in a situation where the state improperly comments upon the defendant’s postarrest silence is the exception to the rule, we find that the present case fits the exception rather than the rule. State v. Morrill, supra, 539.” State v. Boone, 15 Conn. App. 34, 44-45, 544 A.2d 1084, cert. denied, 209 Conn. 811, 550 A.2d 1084 (1988). From our review of the record, we conclude that, absent this impermissible comment, it is clear beyond a reasonable doubt that the jury would have returned a verdict of guilty.

II

The defendant next claims that the trial court improperly admitted testimony that the defendant was found hiding in the attic of his mother’s house at the time a search warrant for the premises was executed and improperly instructed the jury that such concealment was an admission by conduct that they could consider as evidence of the defendant’s consciousness of guilt. The state introduced evidence that when the search warrant for the defendant’s mother’s house was executed, the defendant, for whom there was an outstanding arrest warrant in connection with the assault and robbery of Allen and an outstanding arrest warrant in connection with a murder committed on August 28, 1989, was found hiding in a crawl space in the attic. Defense counsel objected to this line of questioning on grounds of relevance. His objection was overruled and his exception thereto was noted for the record. This objection and the exception to the trial court instruction on consciousness of guilt properly preserved this claim for appellate review.

Evidence that an accused has taken some kind of evasive action to avoid detection for a crime, such as flight, concealment of evidence, or a false statement, is ordinarily the basis for a charge on the inference of consciousness of guilt. State v. Oliveras, 210 Conn. 751, 759, 557 A.2d 534 (1989); State v. Milner, 206 Conn. 512, 519, 539 A.2d 80 (1988); State v. Banks, 194 Conn. 617, 621-22, 484 A.2d 444 (1984). Generally speaking, all that is required is that the evidence have relevance, and the fact that ambiguities or explanations may exist that tend to rebut an inference of guilt does not render evidence of concealment inadmissible but simply constitutes a factor for the jury’s consideration. State v. Piskorski, 177 Conn. 677, 723, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979). The probative value of evidence of concealment depends on all of the facts and circumstances and is a question of fact for the jury. State v. Jones, 205 Conn. 723, 731, 535 A.2d 808 (1988); State v. Wright, 198 Conn. 273, 281, 502 A.2d 911 (1986). Here, the defendant argues that the issue of concealment was not relevant because at the time of his arrest other warrants stemming from other charges had been issued for his arrest. Consequently, he argues, his concealment might well have been due to consciousness of guilt on other charges. This same challenge was presented and rejected in State v. Briggs, 17 Conn. App. 648, 656, 554 A.2d 1112, cert. denied, 211 Conn. 802, 559 A.2d 1137 (1989). In Briggs, the defendant was arrested at a motel one and one-half years after a convenience store robbery. The defendant argued that evidence of the time and place of his arrest should not have been admitted because its prejudicial impact outweighed any probative value. He also argued that because there were other outstanding warrants for his arrest, his concealment might have demonstrated a consciousness of guilt as to the other underlying offenses rather than this offense. The trial court, relying on the conclusion that “flight, when unexplained, tends to prove a consciousness of guilt”; State v. Ferrara, 176 Conn. 508, 516, 408 A.2d 265 (1979); admitted the evidence as relevant to the issue of flight. The same rationale applies here with respect to the defendant’s concealment at the time he was arrested. Concealment, when unexplained, may tend to prove a consciousness of guilt.

A trial court has wide discretion in its rulings on relevancy. State v. Gold, 180 Conn. 619, 646, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66 L. Ed. 2d 148 (1980). One fact is relevant to another fact whenever according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable. State v. McClendon, 199 Conn. 5, 8-9, 505 A.2d 658 (1986). All that is required is that the evidence tend to support a relevant fact. State v. Miller, 202 Conn. 463, 482, 522 A.2d 249 (1987). Here, the circumstances of the defendant’s arrest tended to show consciousness of guilt, and, therefore, the trial court properly permitted the testimony describing the defendant’s arrest and properly instructed the jury on consciousness of guilt.

Ill

The defendant next claims that the trial court unconstitutionally enlarged the offenses with which he was charged by instructing the jury on alternative statutory methods of committing those offenses and that such an instruction violated his federal and state rights to notice and due process of law. We disagree. The defendant was charged by long form information with having committed the crime of assault in the first degree in violation of General Statutes § 53a-59 (a) (l), and robbery in the first degree in violation of General Statutes § 53a-134 (a) (2).

As with his first claim, the defendant failed to raise this issue at trial and now seeks review under State v. Evans, supra, and State v. Golding, supra. The defendant claims that the instructions on each crime denied him constitutional rights; first, that the instruction on assault in the first degree violated his right to be convicted only on proof beyond a reasonable doubt; In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Miller, 202 Conn. 463, 489-90, 522 A.2d 249 (1987); and, second, that the instruction on robbery in the first degree violated his right to be given notice of the specific charges against him and the concomitant right to defend against those charges. Cole v. Arkansas, 333 U.S. 196, 201, 68 S. Ct. 514, 92 L. Ed. 2d 644 (1948).

A

ASSAULT INSTRUCTION

In its information the state charged the defendant with assault in the first degree, alleging that “the said Floyd Williams with intent to cause serious physical injury to one James Allen, did cause serious physical injury to the said James Allen.” (Emphasis added.) In its instruction to the jury, however, the court permitted the jury to find the defendant guilty of assault in the first degree if it found that “the defendant had the specific intent to cause [serious physical] injury to [James Allen] or a third person. ” (Emphasis added.) This charge reflects the language of General Statutes § 53a-59 (a) (1), which includes in the definition of assault in the first degree an intent to cause serious physical injury to another person and such an injury to that person or a third person that is actually sustained.

The defendant does not challenge the fact that the state proved the allegations of the information that the defendant intended to cause serious physical injury to Allen, but rather, that because no evidence was adduced at trial that there was an intent to assault anyone other than Allen, the trial court improperly instructed on this alternative theory of liability.

The two part test for appellate analysis of a claim of evidentiary insufficiency is well established. “First, we review the evidence presented at trial, construing it in the light most favorable to sustaining the jury’s verdict. Second, we determine whether, on the facts so construed and the inferences reasonably drawn therefrom, the jury could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” State v. Jupin, 26 Conn. App. 331, 337, 602 A.2d 12, cert. denied, 221 Conn. 914, 603 A.2d 404 (1992). In reaching its conclusions, the jury may draw reasonable and logical inferences from the proven facts. State v. King, 216 Conn. 585, 602, 583 A.2d 896 (1990). In determining whether the jury reasonably could have found the defendant guilty, we ask if any rational factfinder could have done so. State v. Montanez, 219 Conn. 16, 20, 592 A.2d 149 (1991).

There was ample evidence adduced at trial, through the testimony of the defendant, the victim, Goodman and Lindsay, that at the time of the assault there were a number of individuals entering and exiting the bar as well as standing in the entrance. It is reasonable for the jury to infer that the defendant was shooting at any one of those individuals. Thus, there was sufficient evidence that the intended victim of the robbery and assault might have been someone other than Allen. The trial court, therefore, properly instructed the jurors that the defendant could be convicted if they were to find that he intended to assault either Allen or a third person.

B

ROBBERY INSTRUCTIONS

The information also charged the defendant with robbery in the first degree and alleged that “the said Floyd Williams stole certain property from one James Allen . . . and in the course of the commission of the crime was armed with a deadly weapon.” (Emphasis added.) In its instructions to the jury, however, the court permitted the jury to find the defendant guilty if it found that “in the course of the commission of the crime or the immediate flight therefrom he or another participant [was] armed with a deadly weapon. ” (Emphasis added.) The defendant argues that the variance between the offense as charged in the pleadings and the instruction to the jury deprived him of his federal and state constitutional rights to notice; U.S. Const., amend. VI; Conn. Const., art. I, § 8; in that, in order to obtain a conviction for the crime as it was charged in the information, the state was required to prove that the defendant possessed a deadly weapon during the commission of the offense, but that the instruction to the jury permitted the state to meet its burden of proof by establishing that either the defendant or another participant possessed a deadly weapon during the commission of the offense. The defendant claims that under the specific facts of this case, this misstatement was extremely prejudicial because there was evidence that another individual, Payton, also possessed a gun at the time of the assault and that it was the defendant’s theory of defense that it was another individual who shot the victim.

“The sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution guarantee a criminal defendant the right to be informed of the nature of the charge against him ‘with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise, and ... to enable him to plead his acquittal or conviction in bar of any future prosecution for the same offense . . . .’"State v. Scognamiglio, 202 Conn. 18, 22, 519 A.2d 607 (1987); State v. Franko, 199 Conn. 481, 490, 508 A.2d 22 (1986); State v. Roque, 190 Conn. 143, 154, 460 A.2d 26 (1983). Possession of a deadly weapon by the defendant or possession of a deadly weapon by another participant are simply two methods of committing one offense. The defendant’s conviction under either theory of liability would bar subsequent prosecution for the same offense. Thus, for the defendant to establish an infringement of these constitutional rights, he must demonstrate that the court’s charge caused him unfair surprise or prejudiced the preparation of his defense. State v. Scognamiglio, supra; State v. Roque, supra, 156.

The defendant does not claim, nor do we find, that he was unfairly surprised by the trial court’s instruction. The thrust of the defendant’s claim, however, is that he was prejudiced in the preparation of his defense by such an instruction. “In determining whether a defendant has been prejudiced in the preparation of his defense, we consider the nature of his defense advanced at trial in relation to the trial court’s instruction. . . . Where the record indicates that the defendant would not have changed his defense in any way had he actually been charged by the state with the particular theory of criminal liability upon which a trial court instructed the jury, the defendant’s defense cannot be said to have been prejudiced. . . . Thus, if the defendant’s defense encompasses the uncharged theory of criminal liability as well as the charged theory, and, if believed by the jury, could lead to an acquittal under either theory, his constitutional rights have not been adversely implicated by the trial court’s instruction.” (Citations omitted.) State v. Trujillo, 12 Conn. App. 320, 326-27, 531 A.2d 142, cert. denied, 205 Conn. 812, 532 A.2d 588 (1987).

The defendant put forth the following defense through his own testimony and that of Goodman. The defendant and Goodman went to Faces Cafe on the night of the incident to look for the defendant’s cousin. Goodman waited by the car while the defendant went into the bar. While the defendant was inside, Goodman saw Payton fire a shotgun over the door of the bar. After Payton fired the first shot, Goodman saw a “bunch of young boys” fire additional shots. As the defendant was leaving the bar, he too heard shots being fired from outside. The defendant ran out of the bar and past the victim, who was falling toward him. He and Goodman got into Goodman’s car and the two of them drove to the police station. The defendant remained in the car while Goodman went inside to report the incident.

The defendant claims that his defense at trial was that he was not the shooter, but, rather, that another individual, Payton, shot the victim. There was no testimony at trial that anyone other than the defendant shot the victim. The testimony regarding Payton indicated that he possessed a shotgun that evening and that he shot it only once and not at the victim, but straight up in the air. In his statement to the police, the victim indicated that Payton had a gun but that Payton was not the person who shot him. Therefore, under the circumstances of this case, we conclude that the defendant’s defense encompassed both the charged and uncharged theories of liability and that because either, if believed by the jury, could have led to an acquittal, the defendant’s constitutional rights were not adversely implicated by the trial court’s instructions. “[T]he instructional error was [therefore] harmless because we are ‘satisfied beyond a reasonable doubt that it did not contribute to the verdict.’ ” State v. Mankus, 16 Conn. App. 184, 191, 547 A.2d 84, cert. denied, 210 Conn. 801, 553 A.2d 616 (1988), quoting State v. Coleman, 14 Conn. App. 657, 682, 544 A.2d 194 (1988).

IV

In his final claim, the defendant presents a two part challenge to the trial court’s instructions concerning circumstantial evidence. The defendant claims that the trial court’s failure to instruct the jury that only subordinate facts need be proven beyond a reasonable doubt before reasonable inferences could be drawn therefrom and that this high standard of proof did not apply to the defendant violated his federal and state constitutional rights to due process and to present a defense. We disagree. The trial court instructed that “the jury must initially find that the state has proven the basic facts from which the jury has been asked to draw an inference beyond a reasonable doubt. If and only if the jury finds the basic facts to be proven beyond a reasonable doubt, may you go on to consider the inference. The inference drawn must be reasonable and logical, and not a result of speculation or conjecture.”

The defendant claims that these issues have been preserved for appellate review through his request to charge,* or, in the alternative, he seeks review under State v. Evans, supra, and State v. Golding, supra. We disagree with the defendant’s first contention because his failure to object to the instruction at trial is not cured merely by the fact that he filed a request to charge that is technically correct as to other matters. State v. Silano, 204 Conn. 769, 776, 529 A.2d 1283 (1987). We will review this final claim under State v. Evans, supra, and State v. Golding, supra, because the defendant alleges a violation of a fundamental constitutional right. State v. McDonough, 205 Conn. 352, 533 A.2d 857 (1987), cert. denied, 485 U.S. 906, 108 S. Ct. 1079, 99 L. Ed. 2d 238 (1988).

Where the principle factual issue at trial is intent, which is typically proven by circumstantial evidence, our appellate courts will closely scrutinize the trial court’s instructions on circumstantial evidence in isolation from the remainder of the charge, to determine whether the court misled the jury. State v. Robinson, 204 Conn. 207, 210, 527 A.2d 694 (1987). The principle factual issue at trial here, however, was the identity of the victim’s assailant. Unlike intent, an issue such as identity has ordinarily been proven by direct testimony with circumstantial evidence playing a subordinate role. Accordingly, our review of the defendant’s claim is guided by the established rule that jury instructions are not to be subjected to microscopic examination with an eye toward discovering possible inaccuracies. State v. Ortiz, 217 Conn. 648, 667, 588 A.2d 127 (1991); State v. Dyson, 217 Conn. 498, 501, 586 A.2d 610 (1991). Rather, the entire charge must be considered from the standpoint of its effect on the jury in guiding them to a proper verdict. State v. McDonough, supra, 356; State v. Corchado, 188 Conn. 653, 660, 453 A.2d 427 (1982). We consider whether it was reasonably possible that the charge as a whole misled the jury. State v. Castonguay, 218 Conn. 486, 498, 590 A.2d 901 (1991). Because the defendant’s claim regarding which facts need be proven beyond a reasonable doubt is distinct from his claim regarding the proper distribution of the burden of proof, we consider these claims separately.

A

PROOF OF SUBORDINATE FACTS

Our review of the trial court’s instructions leads us to conclude that in charging that the basic facts leading to the inferences must have been proven beyond a reasonable doubt the trial court was incorrect. Where a group of facts is relied on for proof of an element of a crime it is the cumulative impact that is to be weighed in deciding whether the standard of proof beyond a reasonable doubt has been met and each individual fact need not be proven in accordance with that standard. It is only where a single fact is essential to proof of an element, however, that such evidence must support the inference of that fact beyond a reasonable doubt. State v. McDonough, supra, 355.

The trial court properly instructed the jury that the state bore the burden of proving each element essential to conviction beyond a reasonable doubt. Moreover, the charge given here did not dilute the burden of proof placed on the state but rather increased it. “The state might well have complained that such a charge imposed a far greater burden upon it than the standard requirement that only the inference of guilt as to each element of the crime, as distinguished from the totality of the subordinate facts from which the inference is to be drawn, need be proved beyond a reasonable doubt.” State v. James, 211 Conn. 555, 581, 560 A.2d 426 (1989).

The primary thrust of this case was identification and the credibility of the witnesses. A review of the charge, in its entirety, leads us to conclude that there is no reasonable possibility that the jury was misled by the trial court’s instructions.

B

DISTRIBUTION OF THE BURDEN OF PROOF

The defendant argues that the failure to instruct the jury that the defendant may rely on facts inferable from his circumstantial evidence which need not be proven beyond a reasonable doubt sets a beyond a reasonable doubt standard for drawing inferences from circumstantial evidence whether offered by the state or by the defendant, and thereby places an unconstitutional burden on him. This same argument was presented to this court in State v. Rivera, 24 Conn. App. 670, 675, 591 A.2d 440, cert. denied, 219 Conn. 914, 593 A.2d 139 (1991), and to our Supreme Court in State v. Ortiz, supra, 666.

The trial court properly instructed the jury regarding the distribution of the burden of proof that the defendant was presumed innocent until the state proved his guilt, and that the defendant bore no burden with respect to disproving his guilt. It instructed that “the state must prove guilt beyond a reasonable doubt. The burden of proof in criminal matters is upon the state to prove beyond a reasonable doubt that this accused is guilty of the crime with which he has been charged. The defendant does not have to prove his innocence. This means that the state will have to prove every element necessary to constitute the offenses as I will explain those elements to you. . . .A man is presumed to be innocent until proven guilty. ... So far as you are concerned this defendant is innocent of the crimes here charged, unless or until the evidence produced before you satisfies you of his guilt beyond a reasonable doubt. The accused does not have to prove that he did not commit the offenses with which he is charged. The burden of proof remains with the state that he is guilty, and that in order to do that it must prove every essential element of the offenses charged.” The trial court’s instructions, as a whole, properly appraised the jury as to which party bore the burden of proof. We conclude that it is not reasonably possible that the jury was misled into believing that the defendant was required to prove the basic facts beyond a reasonable doubt before inferences could be drawn therefrom.

The judgment is affirmed.

In this opinion the other judges concurred.

       Allen identified the defendant as Floyd Jackson. Floyd Jackson and the defendant are the same person. Allen testified that he believed that the defendant’s last name was Jackson because his grandfather’s name was Jackson. Allen later identified the defendant as his assailant after viewing him in a lineup.

       The defendant makes no claim that the prosecutorial comment or the cross-examination violated any provision of the state constitution and, accordingly, we choose to limit our review to the federal constitutional standards. See State v. McMurray, 217 Conn. 243,248 n.6, 585 A.2d 677 (1991).

       “In State v. Golding, [213 Conn. 233, 239-40, 567 A.2d 823 (1989)], the Supreme Court held that a defendant can prevail on a claim of constitutional error not preserved at trial if the following four conditions are met: (1) the record is adequate to review the alleged error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental constitutional right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmiessness of the alleged constitutional violation beyond a reasonable doubt. Id., 239-40. A defendant cannot prevail on an unpreserved constitutional claim unless all of the four conditions are met, any one of which may be considered first. State v. Shaw, 24 Conn. App. 493, 497, 589 A.2d. 880 (1991).” State v. Menzies, 26 Conn. App. 674, 694, 603 A.2d 419 (1992).

       We presume that the prosecutor meant October 29,1989, the date the defendant was arrested.

        Miranda v. Arizona, 384 U.S. 436, 467-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       A prosecutor’s argument to the jury that the defendant has an obligation to inform the police of certain inaccuracies in his postarrest statement constituted an impermissible comment. State v. Apostle, 8 Conn. App. 216, 221, 512 A.2d 947 (1986).

       The trial court charged as follows: “Next is the subject of concealment. Whereas the accused is alleged to have been in the house when the police officers went to his mother’s house to seek him out and the arrest was made that day, the law of our state recognizes a principle known as ‘admission by conduct.’ The conduct of a person leaving the scene or concealing himself from detection tends if unexplained, it tends if unexplained to show a consciousness of guilt on the part of that person of guilt. Concealment of the accused after the crime is committed does not create a presumption of guilt. You may consider evidence of concealment as tending to prove the defendant’s consciousness of guilt. You should consider and weigh evidence of concealment by the accused in connection with all other evidence in the case and give it such weight as in your sound judgment it is fairly entitled to receive. Now be cautious on that. You consider the length and breadth of the time, and you consider his testimony on that subject as well.”

       General Statutes § 53a-59 provides in pertinent part: “(a) A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or a third person by means of a deadly weapon or a dangerous instrument

       General Statutes § 53a-134 provides in pertinent part: “(a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant-in the crime ... (2) is armed with a deadly weapon . . . .”

       As with the first claim, because the defendant has not separately analyzed his federal and state claims, we choose to consider only his federal claim. State v. McMurray, 217 Conn. 243, 248 n.6, 585 A.2d 677 (1991); cf. State v. Geisler, 25 Conn. App. 282, 283-84 n.3, 594 A.2d 985, cert. granted on other grounds, 220 Conn. 918, 597 A.2d 342 (1991).

       The relevant portion of the defendant’s request to charge states: “Pacts which compromise essential elements of a crime, whether they are the subject of direct proof or whether they are inferred, must be proved beyond a reasonable doubt.”


source: Caselaw Access Project

author: Daly, J.

license: Public Domain

text:
    William Parker v. Commissioner of Correction Woodrow Chapman v. Commissioner of Correction Glenn Bowers v. Commissioner of Correction James Brantley v. Commissioner of Correction Douglas Franklin v. Commissioner of Correction Johnnie Gates v. Commissioner of Correction Alvin Moore v. Commissioner of Correction William Shelton v. Commissioner of Correction Melvin Jones v. Commissioner of Correction
    (10125) (10128) (10133) (10134) (10135) (10136) (10137) (10400) (10401)
    Daly, O’Connell and Landau, Js.
    Argued February 14
    decision released June 2, 1992

      Albert B. Harper, special public defender, for the appellants (petitioners).

      Paul J. Ferencek, assistant state’s attorney, for the appellee (respondent).
   Daly, J.

This appeal involves nine habeas corpus actions. Seven of the nine petitioners pleaded guilty and the other two were tried and convicted. In eight of these nine actions, the petitioners claim that their convictions should be vacated because their minority group was substantially underrepresented in the pool of venirepersons available for selection to the grand jury that indicted them, in violation of the right to equal protection of the laws as guaranteed by both the fourteenth amendment to the United States constitution and article first, § 20, of the Connecticut constitution. In the other action, the petitioner Woodrow Chapman makes a similar claim on the ground that there was an overrepresentation of members of his minority group on the grand jury that indicted him. All nine petitioners also claim that the failure of their trial attorneys to raise this equal protection challenge constituted ineffective assistance of counsel in violation of the sixth and fourteenth amendments to the federal constitution and article first, § 8, of the Connecticut constitution. All of the petitioners are black.

The following facts are relevant to this appeal. From 1959 until his death in 1972, J. Edward Slavin was the high sheriff of New Haven County. In 1972, Slavin’s chief deputy, Henry Healey, was elected to that position. Healey was familiar with Slavin’s method for selecting grand jurors. Healey continued Slavin’s method of calling people for grand jury service. They both selected prospective grand jurors from lists of names given by various leaders in the community. Neither Slavin nor Healey knew the accused’s name or race when compiling a grand jury list.

During 1977 or 1978, Healey received complaints from defense attorneys in New Haven County that this selection system was racially discriminatory. Because of these complaints, Healey implemented a new selection process. He began to select persons for grand jury service from the master petit jury array list from the previous court year. The master petit jury array list was compiled pursuant to General Statutes (Rev. to 1975) § 51-220. Healey obtained this list from Nicholas Cimino, chief clerk of the New Haven judicial district and jury commissioner for New Haven County. Pursuant to § 51-220, prospective grand jurors were selected from each town according to a classification based on each town’s population. This resulted in a greater proportion of prospective grand jurors from smaller towns than from larger towns. For example, § 51-220 called for the selection of thirty prospective grand jurors from towns with populations of between 750 and 1500. This equalled 2 percent of their populations. Towns with populations exceeding 100,000 produced only 1012 prospective grand jurors. At most, this amounted to only 1 percent of their populations. The petitioners, relying on a statistical decision theory, sought to estimate retrospectively the effect of § 51-220 on the proportion of black people available for grand jury arrays for the period from 1966 through 1981.

At the habeas hearing, the eight petitioners claiming substantial underrepresentation of members of their minority group due to the improper selection of grand jurors relied on the decision of Alston v. Manson, 791 F.2d 255 (2d Cir. 1986), cert. denied, 479 U.S. 1084, 107 S. Ct. 1285, 94 L. Ed. 2d 143 (1987). In Alston, the Court of Appeals for the Second Circuit found that the selection of venirepersons pursuant to General Statutes (Rev. to 1975) § 51-220 caused the underrepresentation of minorities in the pool of prospective jurors serving New Haven County in 1975 and that this underrepresentation violated the equal protection clause. The eight petitioners claim that the underrepresentation of black people in the pool of prospective grand jurors serving New Haven County from 1966 to 1981 as well as the handpicking of prospective grand jurors by the high sheriff of New Haven County resulted in a violation of the principle of equal protection. Petitioner Chapman argues that an attempt by the high sheriff purposely to select members of his minority group also violated the principle of equal protection.

The habeas court held, in the seven actions involving the petitioners who pleaded guilty, that their unconditional guilty pleas resulted in a waiver of their grand jury selection claims. In the two remaining actions involving the petitioners who pleaded not guilty and were subsequently convicted, the habeas court found that the petitioners had not waived review of their claims because it found that they did not deliberately bypass their rights to challenge the array of prospective grand jurors. The court found that these petitioners did not know that the grand jury challenge claims could have been raised on direct appeal and that there was no evidence that they consented to their attorneys’ decisions not to challenge the grand jury selection process.

The habeas court considered the merits of the latter two petitioners’ grand jury challenge. It found that the petitioners failed to establish that § 51-220 resulted in the substantial underrepresentation of members of their minority group on the grand jury array as required to establish a violation of equal protection in Castaneda v. Partida, 430 U.S. 482, 97 S. Ct. 1272, 51 L. Ed. 2d 498 (1977). The habeas court found that there was insufficient evidence of underrepresentation of minorities for the period of 1966 through 1981 because there was no evidence presented as to the actual composition of the grand juries based on observations or on records of their composition. The court further found that none of the petitioners established that his attorney’s failure to challenge the grand jury array amounted to ineffective assistance of counsel.

Here, the petitioners claim that the habeas court’s finding that there was insufficient evidence of disproportionate representation of their minority groups in the arrays used for the selection of grand jurors at the time of their indictments and convictions was improper. They also claim that the court’s findings concerning their ineffective assistance of counsel claims were improper.

I

Before addressing the merits of the equal protection claims, we note that the petitioners are raising this challenge to the grand jury array for the first time in this proceeding, years after their convictions. The petitioners in Alston v. Manson, supra, challenged the grand jury array at the time of their trial in 1975 claiming that § 51-220 resulted in discrimination against black people. At the time of the indictments in this action, Practice Book § 613 required that challenges to grand jury arrays be filed within five days of the indictment. The failure to follow this requirement amounts to a trial level default that normally would constitute a waiver of this attempt to invalidate their convictions under Practice Book § 810.* **

The habeas court avoided a finding of waiver through its application of the deliberate bypass standard of review. The habeas court, upon finding that there was no deliberate bypass, should have applied the “cause and prejudice” standard based on our Supreme Court’s decision in Johnson v. Commissioner, 218 Conn. 403, 589 A.2d 1214 (1991). We note that Johnson had not been published at the time of the habeas court’s decision. That case involved a similar equal protection challenge to the selection of venirepersons for both grand and petit juries. In that case, the habeas court reviewed the merits of the equal protection challenge after finding that the petitioners satisfied the deliberate bypass standard. In Johnson v. Commissioner, supra, 414-19, the court examined whether the deliberate bypass standard should be applied in a habeas proceeding to review constitutional claims not preserved because of a trial court default. The court was concerned that the deliberate bypass standard, if applied to the review of constitutional claims never brought to the trial court would cause “too great a burden on our criminal justice system.” Id., 417.

In Johnson v. Commissioner, supra, our Supreme Court held that the federal “cause and prejudice” standard of Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977), applies to constitutional claims not properly preserved because of a trial level default. Applying the “cause and prejudice” standard, the Supreme Court did not reach the merits of the petitioners’ claims because it found that the petitioners failed to show good cause for their failure to challenge the jury arrays before trial. Johnson v. Commissioner, supra, 423.

In the present case, the petitioners failed to present any reasons that would support a finding of good cause for their failure to challenge the grand jury array at the trial court level, as required by Practice Book § 613. Under the standard adopted in Johnson v. Commissioner, supra, 419, the petitioners must establish good cause for their failure to raise this claim at trial and to demonstrate that they suffered actual prejudice before this court will review the merits of their claim. “ ‘[T]he mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default.’ ” Id., 422, quoting Murray v. Carrier, 477 U.S. 478, 486-87, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986). The petitioners have failed to show good cause for their failure to challenge the grand jury selection process during the pretrial period or on direct appeal. On the basis of this finding, we need not review the prejudice component of this standard of review. We need not address the habeas court’s finding that a guilty plea operates as a waiver of any objection to a defect in the grand jury selection process because of our conclusion that the petitioners have failed to satisfy the first prong of the cause and prejudice standard.

II

The petitioners seek to avoid the application of the Wainwright “cause and prejudice” standard by arguing that the trial court lacked subject matter jurisdiction. During the period of these indictments, article first, § 8, of the Connecticut constitution and General Statutes § 54-45 required a grand jury indictment for the crimes committed by these petitioners. The petitioners argue that because their indictments were obtained from unconstitutionally selected grand juries, the trial court lacked subject matter jurisdiction to prosecute them.

Subject matter jurisdiction “is the power to hear and determine cases of the general class to which the proceedings in question belong.” Reed v. Reincke, 155 Conn. 591, 598, 236 A.2d 909 (1967). Subject matter jurisdiction cannot be waived or conferred by consent of the defendant. Id. If the allegedly unconstitutionally obtained indictments deprived the court of subject matter jurisdiction, we would have to dismiss the petitioners’ convictions. Vincenzo v. Warden, 26 Conn. App. 132, 135, 599 A.2d 31 (1991).

A review of federal habeas corpus jurisprudence indicates that a claim of an unconstitutionally selected grand jury does not go to a court’s subject matter jurisdiction. Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 36 L. Ed. 2d 235 (1973), held that an unconditional guilty plea made with the assistance of counsel functions as a waiver of all nonjurisdictionai defects and prohibits subsequent claims of constitutional challenges to the pretrial proceedings. In Tollett v. Henderson, supra, 259, the state of Tennessee admitted that minorities were systematically excluded from grand juries at the time of the petitioner’s grand jury indictment for murder. The Supreme Court later noted that the claim in Tollett did not go “to the very power of the State to bring the defendant into court to answer the charge brought against him.” Blackledge v. Perry, 417 U.S. 21, 30, 94 S. Ct. 2098, 40 L. Ed. 2d 628 (1974). The invalid indictment in Tollett “could have been ‘cured’ through a new indictment by a properly selected grand jury.” Id.

Unlike Tollett, the state in this case is not conceding that the grand jury indictments involving these petitioners were unconstitutional. Had the petitioners, as required by Practice Book § 613, raised a challenge to the grand jury array during the pretrial proceedings, any possible defect could have been cured through a new indictment. As in Tollett, this claim is a constitutional challenge to pretrial proceedings. Here, the equal protection claim does not go to the state’s power over the petitioners and the charged offenses.

The petitioners’ reliance on State v. Lewis, 176 Conn. 270, 407 A.2d 955 (1978), to support their claim that the court lacks subject matter jurisdiction because of the alleged unconstitutional grand jury array is misplaced. After initially charging the defendant with robbery in the second degree, the state sought to add an additional charge accusing him of being a persistent felony offender. The state failed to obtain a grand jury indictment first even though Lewis faced the possibility of life imprisonment with the addition of the persistent felony offender charge. Id., 271. The defendant’s objection to this procedure was overruled. Id. The court examined the need for a grand jury indictment even though both sides failed to raise the issue in their briefs. Id. Because of the possibility of receiving a life sentence, the defendant had to be indicted by a grand jury. Id., 272.

State v. Lewis, supra, does not stand for the principle that an improperly selected grand jury indictment deprives the court of its subject matter jurisdiction. It was the absence of a grand jury indictment itself in Lewis that deprived the trial court of the power to sentence the defendant on the persistent felony offender count. The failure to obtain an indictment when required by the state constitution and by statute is not a defect that can be waived by the defendant. In contrast to the claim concerning the lack of a grand jury indictment, a claim challenging the selection of grand jurors had to be filed within five days after the indictment or the claim was waived according to Practice Book § 613. If a challenge to a grand jury array went to the court’s subject matter jurisdiction, the rules of practice could not provide that such challenge is waived if not made within five days. Here, all of the petitioners were in fact indicted by a grand jury as required by the Connecticut constitution and General Statutes § 54-45. The petitioners’ equal protection challenges relate to the composition of the grand jury and not to the grand jury’s underlying power to issue an indictment. Any defect in the indictment should have been raised during the pretrial proceedings.

The reasoning of United States v. Macklin, 523 F.2d 193 (2d Cir. 1975), further supports our holding that the alleged improper selection of a grand jury does not affect the court’s subject matter jurisdiction. After initially pleading guilty, the defendant sought a dismissal because the grand jury issued its indictment after its term had expired. Id., 194. The government argued that although the indictment was issued by a grand jury whose term had expired, dismissal was not warranted. The government argued on the basis of Tollett that the defendant’s claim was similar to a constitutional challenge to the grand jury’s composition and, thus, the court still retained its jurisdiction over him. Id., 196-97.

The court of appeals rejected this argument concluding that cases such as Tollett “dealt with grand juries that formally existed. . . . [T]he composition of the juries was challenged ... on the ground that the racial composition of the otherwise legally constituted grand jury was not in conformity with the constitutional requirement.” Id., 197. There was a distinction between constitutional claims concerning the racial composition of a grand jury and claims involving the grand jury’s power to issue a valid indictment. The court held that an indictment issued after the grand jury’s term had expired constitutes a defect “which renders the grand jury’s actions void ab initio.” Id. As in State v. Lewis, supra, it is the absence of an indictment or an indictment from grand jurors who lack the power to issue one that deprives the court of its subject matter jurisdiction and not a constitutional challenge to the selection or composition of a grand jury. Thus, we find that the petitioners’ equal protection challenge does not go to the court’s subject matter jurisdiction to hear this action.

We reject the petitioners’ argument that the trial court lacked subject matter jurisdiction because of the allegedly unconstitutional grand jury selections. Under Practice Book § 810, the lack of subject matter jurisdiction could be raised by the court even if it was not raised by the accused. We find support for our decision in Johnson v. Commissioner, supra, which involved a similar equal protection claim. The Supreme Court did not find that the equal protection challenge affected the court’s subject matter jurisdiction over the petitioners. If the court lacked subject matter jurisdiction because of the unconstitutional indictments, the Supreme Court would have had to dismiss the charges against the petitioners in Johnson and could not have refused to review the merits of the equal protection claim by finding a failure to show cause for the petitioners’ procedural default of not challenging the grand jury arrays.

Ill

All of the petitioners seek to set aside their convictions claiming that their trial attorneys’ failure to challenge the grand jury selection process amounted to ineffective assistance of counsel in violation of the federal and state constitutions.

The habeas court applied the standard established in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), to determine whether the petitioners who did not plead guilty received effective assistance of counsel. The court held that the petitioners failed to establish that their counsels’ performances were deficient and that they were prejudiced because of a failure to pursue challenges to the grand jury array. The court found that because all attempts to challenge the constitutionality of § 51-220 were unsuccessful as of 1981, and because any successful challenge would only have delayed the petitioners’ prosecution by forcing the state to obtain a new grand jury indictment, counsel’s performance was not deficient. The court also found that the petitioners failed to show that they were prejudiced because any defects in the indictments could have been cured by new indictments.

The Strickland standard was applied by our Supreme Court in Johnson v. Commissioner, supra, 425, where the court held that counsel’s failure to challenge grand and petit jury arrays did not constitute ineffective assistance of counsel. The court noted that “it is debatable whether a challenge to the array, even if successful, must inevitably redound to the benefit of a criminal defendant. Unlike an acquittal, which is dispositive of the charge, a successful challenge to the array simply delays a final resolution of the case in the trial court while a different jury array is assembled and, when a defendant has not been released on bond, often may result in prolonged incarceration of defendants ultimately found not guilty. Furthermore, upon observation of the members of a grand jury . . . counsel may well be satisfied that it contains as many minority jurors as needed to satisfy equal protection . . . standards, and possibly more than required.” Id., 427.

Here, the petitioners have failed to distinguish their cases from the case of Johnson v. Commissioner, supra. On the basis of that case, we affirm the decision of the habeas court concerning the ineffective assistance of counsel claim.

The judgments are affirmed.

In this opinion the other judges concurred.

       The fourteenth amendment to the United States constitution, § 1, provides: “Ail persons bom or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

       Article first, § 20, of the Connecticut constitution, as amended by articles V and XXI of the amendments, provides: “No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his civil or political rights because of religion, race, color, ancestry, national origin, sex or physical or mental disability.”

       The sixth amendment to the United States constitution provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”

       Article first, § 8, of the Connecticut constitution, as amended by article XVII of the amendments, provides in pertinent part: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation . . . .”

       “[General Statutes (Rev. to 1975)] Sec. 51-220. number of jurors for each town. The number of jurors to be chosen for each town shall be as follows: In towns whose population as determined by the last-completed census of the United States is less than seven hundred and fifty, fifteen; in towns whose population so determined is at least seven hundred and fifty but not more than one thousand five hundred thirty; in towns whose population so determined is more than one thousand five hundred but not more than twenty-five hundred, fifty-six; in towns whose population so determined is more than twenty-five hundred but not more than five thousand, ninety; in towns whose population so determined is more than five thousand but not more than ten thousand, one hundred twenty; in towns whose population so determined is more than ten thousand but not more than twenty-five thousand, two hundred twenty-five; in towns whose population so determined is more than twenty-five thousand but not more than fifty thousand, three hundred thirty-seven; in towns whose population so determined is more than fifty thousand but not more than one hundred thousand, six hundred seventy-five; and in towns whose population so determined is more than one hundred thousand, one thousand and twelve; provided, for the purposes of this section, the population of a town shall not include the patients of any state institution located in such town.”

       “[Practice Book] Sec. 613. [Repealed as of Oct. 1, 1984.] [the grand JURY]-CHALLENGES TO THE ARRAY
      “The prosecuting authority or a defendant who has been held to answer in the superior court may challenge the array of jurors on the ground that the grand jury was not selected, drawn or summoned in accordance with law. Any challenge to an array shall be made within five days after the indictment.”

       “[Practice Book] Sec. 810. failure to raise defense, objection or REQUEST
      “Failure by a party, at or within the time provided by these rules, to raise defenses or objections or to make requests that must be made prior to trial shall constitute a waiver thereof, but a judicial authority, for good cause shown, may grant relief from such waiver, provided, however, that lack of jurisdiction over the offense charged or failure of the indictment or information to charge an offense may be raised by the defendant or noticed by the judicial authority at any time during the pendency of the proceedings.”

       The habeas court applied the deliberate bypass test on the basis of Vena v. Warden, 154 Conn 363, 366-67, 225 A.2d 802 (1966). In Vena v. Warden, supra, our Supreme Court held “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 us 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.” Thus, under the deliberate bypass standard, the petitioner is entitled to review of constitutional claims not raised on direct appeal if he establishes that the failure to raise the claim did not result from a knowing and voluntary waiver of the right to pursue the claim or if the decision not to raise the claim was made by counsel after conferring with the petitioner. Id., 367.

      .See footnote 6, supra.


text:
    Sun Hill Industries, Inc. v. Kraftsman Group, Inc.
    (9945)
    Daly, Foti and Lavery, Js.

      Argued January 14
    decision released June 2, 1992

      Scott M. Harrington, for the appellant (defendant).

      L. Morris Glucksman, with whom, on the brief, was Mark R. Feller, for the appellee (plaintiff).
   Daly, J.

The defendant, Kraftsman Group, Inc., appeals from the trial court’s judgment in favor of the plaintiff, Sun Hill Industries, Inc., rendered in accordance with the report of an attorney trial referee. The defendant claims that the trial court improperly (1) found that certain cartons manufactured by the defendant were defective and failed to conform to war-rantees because the plaintiff did not offer expert testimony regarding the cause of the defective condition of the cartons, (2) shifted the burden of proof from the plaintiff to the defendant concerning the value of the cartons used by the plaintiff, (3) found that all cartons manufactured by the defendant in 1985 were defective because the evidence revealed that the defendant manufactured and shipped older and newer designed cartons during 1985 and the plaintiff offered evidence that related only to the newer cartons, and (4) abused its discretion by failing to conduct a hearing to consider the merits of each of the defendant’s exceptions to that report.

The following facts are relevant to this appeal. The defendant supplied cardboard cartons to the plaintiff for the shipping and displaying of the plaintiff’s products. The plaintiff and the defendant had been involved in an ongoing business relationship since 1980. During its business dealings with the plaintiff, the defendant was represented by Leon Weinstock. Wein-stock was not employed by the defendant but used an office on the defendant’s premises. The defendant authorized Weinstock to make quotes on proposals to the plaintiff.

The plaintiff called Weinstock concerning the 1985 Christmas season order of cardboard cartons from the defendant. Weinstock met with an employee of the plaintiff and a freelance designer in June, 1985, concerning a design for a cardboard container. This meeting resulted in the creation of a model of the cardboard container to be manufactured by the defendant. The designer prepared specifications including the strength of the cardboard to be used for the display carton. The sample and written specifications were delivered to the defendant. The written specifications were not offered into evidence. It was the defendant’s practice to ship an order only after the customer approved the samples sent by the defendant. The plaintiff approved the defendant’s samples. The price of each carton was $3.44.

On July 18, 1985, the defendant shipped 7170 cartons lying flat on pallets to the plaintiff. This invoice covered two different purchase orders. Part of this invoice referred to 3000 cartons described as A392FD and 743FD, which involved a purchase order that was originally submitted on May 21,1985. This invoice also included 4170 cartons described as A415FD and A488XC. The A415FD cartons were referred to as the defendant’s order number C631. The A488XC cartons were referred to as the defendant’s order number C632. On August 18, 1985, another 5515 cartons were shipped to the plaintiff. The August 18,1985 shipment covered only A488XC and A415FD cartons. It was a continuation of the July 18, 1985 invoice.

The plaintiff retained an outside organization to assemble the cartons and pack them with the plaintiff’s items. The plaintiff then shipped the assembled cartons to retail stores to be used as standing floor display units. In the fall of 1985, the plaintiff discovered that after the cartons were assembled and stacked on pallets in the plaintiff’s warehouse, the lower cartons collapsed under the weight of the other cartons. As a result, the cartons were unable to function properly as display units in the retail stores. The plaintiff notified Wein-stock about this problem during September, 1985. Weinstock testified that he observed a pallet that contained two sets of cardboard display cartons. Each set contained approximately 100 cardboard display cartons. The bottom set had collapsed under the weight of the top set. After observing these cartons, he took a sample to the defendant. At Weinstock’s suggestion, the plaintiff ordered from the defendant additional cardboard inserts for the cartons which prevented them from collapsing. The inserts required additional labor to install and were found to be unsightly when the cartons were unfolded as display units.

The specifications sent to the defendant called for cartons with 200 pounds per square inch bursting strength. The defendant ordered this type of cardboard from its supplier. After receiving this cardboard from its supplier, the defendant did not test it to determine if it met the 200 pound test requirement but placed a stamp on the cardboard indicating that it met the required 200 pounds per square inch bursting strength. The plaintiff ultimately was charged $48,180.40 for the display cartons; however, the defendant did not receive any payment. Weinstock paid for the cost of the cardboard inserts which amounted to $1739.

This action was referred to an attorney trial referee who found that Weinstock had acted as an agent for the defendant. The evidence offered by the plaintiff established that the cartons manufactured by the defendant failed to meet the specifications or to conform to the sample submitted by Weinstock. This resulted in the cartons’ not being suitable for their intended purpose. The plaintiff failed to satisfy its burden of proving damages that resulted from the defective cartons manufactured by the defendant. Judgment was rendered in favor of the plaintiff for nominal damages in the amount of $10 on the complaint.

On the counterclaim, the referee awarded $545 to the defendant. This amount was based on the cost of the pallets used to ship the cartons to the plaintiff. The referee stated that “[b]ecause the defendant did not supply cartons in accordance with the plaintiff’s orders, it is not entitled to receive the agreed value for cartons that would have conformed to the orders.” The referee concluded that “[although the plaintiff used the carton for scrap and other purposes, any finding as to the reasonable value of such cartons would of necessity be based upon speculation.” Therefore, the referee did not award to the defendant the price of the display cartons that were actually used by the plaintiff.

In response to a motion for articulation, the referee stated that the evidence failed to establish a distinction between older design cartons which were not defective and newer design cartons which were allegedly defective. As to the defendant’s counterclaim, the referee classified it as a claim for “unpaid cartons designed and manufactured for the 1985 Christmas market.” The referee further found that “[t]he plaintiff’s president’s testimony that it used 2131 cartons did not establish that it benefited from those cartons or that those cartons meet specifications or conformed with the samples.”

Because this case involves the sale of goods, it is governed by Article 2 of the Uniform Commercial Code (UCC). General Statutes § 42a-l-101 through 42a-2-725. Before resolving the defendant’s claims, we must determine whether the referee treated the plaintiff as a rejecting buyer or as a buyer who accepted nonconforming goods under Article 2 of the UCC. The referee did not make an express finding concerning the plaintiff’s status as a rejecting buyer or as a buyer who accepted nonconforming goods. On the basis of our review of the record, we conclude that the plaintiff accepted the cartons and thus was not a rejecting buyer.

According to the plaintiffs revised complaint, it notified the defendant on September 16, 1985, about the defective condition of the cartons. The revised complaint stated that the defendant was asked to remove the remaining unfit cartons and that “the purchase price be adjusted to reflect the number of boxes actually used. . . .” As mentioned previously, there was testimony by the plaintiffs president that 2131 cartons were used by the plaintiff. The referee also found that the plaintiff used the cartons “for scrap and other purposes.” General Statutes § 42a-2-606 provides that an acceptance of goods occurs when a buyer “does any act inconsistent with the seller’s ownership.” Here, the plaintiff used 2131 cartons and sought an adjustment of the amount owed to the defendant for the cartons actually used. These acts are clearly inconsistent with the defendant’s ownership rights. Therefore, the plaintiff did not reject the cartons.

“The buyer’s acceptance of goods, despite their alleged nonconformity, is a watershed. After acceptance, the buyer must pay for the goods at the contract rate; General Statutes § 42a-2-607 (1); and bears the burden of establishing their nonconformity. General Statutes § 42a-2-607 (4).” Stelco Industries, Inc. v. Cohen, 182 Conn. 561, 563-64, 438 A.2d 759 (1980). The referee found that the plaintiff had the burden of proving both nonconformity and any damages resulting from the nonconformity of the goods. This further supports our finding that the referee treated the plaintiff as a buyer who accepted nonconforming goods.

“Acceptance, even with knowledge of the nonconformity of the goods, does not, however, constitute an election to waive all claims with respect to the accepted goods. General Statutes § 42a-2-607 (2).” Id., 564. The acceptance of nonconforming goods does not prevent the buyer from recovering damages as long as the seller was timely notified about the nonconformity. In September, 1985, approximately two months after the first shipment of cartons for the 1985 Christmas season, the plaintiff notified Weinstock that the cartons collapsed when packed with merchandise. We agree with the referee that this notification was made within a reasonable time and therefore satisfied General Statutes § 42a-2-607 (3) (a).

“If the buyer can demonstrate that he has been damaged by the nonconformity of the goods that he has accepted, he is entitled to recover such damages as he can prove. General Statutes §§ 42a-2-607 (3), 42a-2-714. Alternatively, if the buyer can demonstrate that the goods are substantially nonconforming, he is entitled, with some qualifications, to revoke his acceptance and recover the purchase price. General Statutes § 42a-2-608.” Superior Wire & Paper Products, Ltd. v. Talcott Tool & Machine, Inc., 184 Conn. 10, 13-14, 441 A.2d 43 (1981).

The defendant first claims that the plaintiffs failure to offer expert testimony that the cartons were defectively manufactured and in breach of warranty prevented the court from holding the defendant liable to the plaintiff because the expert testimony was necessary to prove that the cartons did not conform to a war-rantee. According to the defendant, the cause of the cartons’ collapse is something beyond the field of the ordinary knowledge of a trial court.

Before addressing the need for expert testimony, we first set forth what the plaintiff was required to establish in order to find the defendant liable for the collapsing cartons. “[A] buyer of goods is entitled to recover damages for goods which, in breach of warranty, are not of merchantable quality; General Statutes §§ 42a-2-314 and 42a-2-714 (2); by showing that they fail to conform to the contract ‘in any respect.’ ” Stelco Industries, Inc. v. Cohen, supra, 565. This is a lesser standard than the statutory standard governing revocation of acceptance. Id. After revoking acceptance, a buyer must establish that the nonconformity of the goods resulted in a substantial impairment of value to the buyer. General Statutes § 42a-2-608. The referee found that the defendant had breached its warranty to the plaintiff because the cardboard cartons did not conform to the sample and specifications submitted by Weinstock and that the cartons were unsuitable for their intended purpose. The referee did not treat this as a revocation of acceptance because it did not make a finding that the nonconforming cartons resulted in a substantial impairment of value to the plaintiff.

It is well established that “expert testimony is required ‘when the question involved goes beyond the field of the ordinary knowledge and experience of judges or jurors.’ ” Latham & Associates, Inc. v. William Raveis Real Estate, Inc., 218 Conn. 297, 301, 589 A.2d 337 (1991), quoting Bader v. United Orthodox Synagogue, 148 Conn. 449, 454, 172 A.2d 192 (1961). The plaintiff and the defendant were involved in an ongoing business relationship at the time of this incident in 1985. Weinstock submitted specifications and a sample of the cardboard carton needed for the plaintiff’s product. The plaintiff relied on the defendant to supply a carton that would function as a shipping and display carton. The collapse of the cartons was apparent to any viewer, in particular, the defendant’s agent, Weinstock. Weinstock was an experienced salesman, familiar with cardboard display cartons. He examined these cardboard cartons and found that they were collapsed and crushed. Based on the testimony presented, the determination that these cardboard cartons were not of merchantable quality and were unfit for their intended purpose was not beyond the field of the referee’s ordinary knowledge. Thus, expert testimony was unnecessary to prove that the defendant had breached its warranty to the plaintiff.

The defendant next claims that the trial court improperly shifted the burden of proof of value of the cartons used by the plaintiff to the defendant. In resolving this claim, we also address the defendant’s third claim concerning proof of the defective condition of the cartons manufactured in 1985. We find that the burden of proof as to the value of the cartons accepted by the plaintiff was improperly placed on the defendant.

The following facts are relevant to this issue. The defendant’s counterclaim sought recovery for the value of the July and the August, 1985 shipments. The defendant claimed that the plaintiff had “been unjustly enriched by its failure” to pay for these shipments. The referee did not award any money to the defendant for the plaintiff’s use of some of the cartons for scrap and other purposes. The referee noted that “any finding as to the reasonable value of such cartons would of necessity be based upon speculation.” In its articulation, the referee further explained that “[t]he plaintiff’s president’s testimony that it used 2131 cartons did not establish that it benefited from those cartons or that those cartons met specifications or conformed with the samples.” On the basis of this reasoning, the defendant was awarded only $545, the value of the pallets.

The defendant’s counterclaim sought recovery for cartons delivered in July and August, 1985. The July shipment included 3000 cartons that were described separately as A392FD and 743FD. These 3000 cartons were ordered on May 21, 1985, by the plaintiff from the defendant. The plaintiff’s president testified that the specifications and model created by the plaintiff’s representative, the designer and Wein-stock constituted a different design from other cartons previously ordered from the defendant. This model was created in June, 1985. Therefore, 3000 of the cartons delivered in July, 1985, could not have been designed according to this model because the order was made before the creation of the model. The referee found that the collapsing cartons failed to conform to the specifications and model submitted by Weinstock to the defendant. There was no evidence that the 3000 cartons ordered in May were defective or unfit for their intended purpose.

The defendant challenges the legal conclusion that it was entitled to recover only the cost of the pallets on its counterclaim. This court must determine whether the decision not to award recovery for cartons used by the plaintiff was legally and logically correct. Pan-dolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). The referee’s refusal to recommend any recovery for the plaintiff’s use of cartons because there was no showing that the plaintiff benefited from these cartons was not legally and logically correct.

As mentioned previously, according to § 42a-2-607, after acceptance, the plaintiff was liable to the defendant for payment for the cartons at the contract rate. The plaintiff had to establish that the cartons were nonconforming in order to avoid liability for the contract rate for the cardboard display cartons. The testimony by the plaintiff’s president that 2131 cardboard display cartons were used entitled the defendant to recover the cost of those cartons. If the plaintiff used these 2131 cardboard display cartons in its business, it would be unable to establish that they were nonconforming and unfit for their intended purpose. The defendant need not show that the plaintiff benefited from using the cartons manufactured by the defendant. If the plaintiff accepted and used the cartons, it has to pay the defendant the contract price. The defendant was not required to establish which cartons were conforming and capable of being used by the plaintiff to be entitled to recover the contract price of those cartons.

The defendant was entitled to recover on its counterclaim the cost of at least the 2131 cartons used by the plaintiff. We remand this case to the trial court for a hearing to determine how many cartons were in fact nonconforming. The plaintiff must establish which cartons were nonconforming to avoid being liable for the contract price to the defendant.

Because of our resolution of these issues, we need not address the defendant’s last claim.

The judgment is reversed only as to the award to the defendant on its counterclaim, and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       General Statutes § 42a-2-607 (3) provides in pertinent part: “Where a tender has been accepted (a) the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy . . . .”


author: La very, J.

text:
    Sue Ann Cappellino v. Town of Cheshire et al.
    (9993)
    Daly, Foti and Lavery, Js.
    Argued October 1, 1991
    decision released June 2, 1992

      Michael J. Belzer, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, and Charles A. Overend, assistant attorney general, for the appellant (defendant second injury and compensation assurance fund).

      Edward T. Dodd, Jr., for the appellee (plaintiff).
   La very, J.

The sole issue in this case is whether a presumptive dependent is entitled to the full balance of specific benefits awarded to an employee who had reached maximum medical improvement and had collected some of the specific benefits when he became totally incapacitated and received temporary total benefits until his death from an unrelated cause.

The workers’ compensation commissioner found that the presumptive dependent was entitled to the full balance of the specific benefit. That decision was upheld by the compensation review division. The second injury and compensation assurance fund appealed. We affirm the decision of the compensation review division.

The finding and award by the commissioner was based on the following stipulation of facts:

“1. On January 22, 1976 claimant, late Peter Cap-pellino, sustained an injury to his low back arising out of and occurring in the course of his employment with the Town of Cheshire.
“2. In a January 12, 1978 Finding and Award, the Fifth District Commissioner, the Honorable Edward F. Bradley, found that the claimant sustained a com-pensable work-related back injury, pursuant to Chapter 565.
“3. In the same January 12, 1978 Finding and Award, Commissioner Bradley ordered liability, after the first 104 weeks, to be transferred to the Second Injury Fund, pursuant to Conn. Gen. Stat. § 31-349.
“4. Transfer to the Second Injury Fund was effective as of January 20, 1978.
“5. From January 22,1976 until March 21,1978 the claimant received temporary total disability benefits.
“6. As of March 1,1978, the claimant reached maximum medical improvement.
“7. On March 21, 1978 Commissioner Bradley approved the Form 36.
“8. On July 3,1978 Commissioner Bradley approved the specific voluntary agreement reflecting a 30% permanent partial disability of the back.
“9. Claimant received permanent partial disability payments until October 12, 1978 when he became totally disabled again.
“10. From October 12, 1978 until October 4, 1988, the date of death, claimant remained totally disabled.
“11. Claimant’s death was a result of a non-compensable ‘cardiorespiratory arrest.’ ”

On the basis of the stipulation of facts, the parties briefed the issue of whether the claimant’s presumptive dependent is entitled to the balance of the unpaid permanent partial disability benefits to the workers’ compensation commissioner. In the finding and award, the commissioner ruled that the unpaid portion of the permanent partial disability is payable to the claimant’s widow. The second injury and compensation assurance fund appealed this ruling to the compensation review division.

In its decision, the review division stated that “[payments were made under [the specific voluntary] agreement until October 12,1978, when the decedent again became totally disabled. At that point, the Respondent Fund had only paid (82) weeks of the one hundred fifty-six weeks of specific benefits. However, due to the change in the employee’s condition, the Fund interrupted the series of Sec. 31-308 specific benefits and again paid Sec. 31-307 total disability benefits. It continued to pay total disability benefits until October 4, 1988, when death occurred for causes unrelated to the compensable injury.” (Emphasis added.)

The review division found that the claimant’s right to specific benefits vested when the specific voluntary agreement for 30 percent loss of use of the back was approved by the fifth district commissioner on July 3, 1978, and upheld the finding and the award of the commissioner.

From January 22, 1976, until March 21, 1978, the claimant received temporary total disability payments under General Statutes § 31-307 which provides compensation for loss or impairment of earning capacity. Ancona v. Norwalk, 217 Conn. 50, 55, 584 A.2d 454 (1991); McCurdy v. State, 26 Conn. App. 466, 469-70, 601 A.2d 560, cert. granted, 221 Conn. 920, 608 A.2d 686 (1992). On March 1, 1978, the claimant achieved maximum medical improvement and agreed in a specific voluntary agreement to a 30 percent permanent partial disability of the back.

An award of workers’ compensation benefits for permanent partial impairment of one’s back is a specific indemnity award. J. Asselin, Connecticut Workers’ Compensation Practice Manual (1985), pp. 151-54; see General Statutes § 31-308 (b). “Specific benefits are benefits for the loss or loss of the use of specific body parts. See Everett v. Ingraham, 150 Conn. 153, 155, 186 A.2d 798 (1962).” Morgan v. East Haven, 208 Conn. 576, 584, 546 A.2d 243 (1988); Panico v. Sperry Engineering Co., 113 Conn. 707, 710, 156 A. 802 (1931). “ ‘These [specific] benefits . . . are not paid as compensation for loss of earning power but to compensate the injured employee for the incapacity through life because of the loss or loss of use of the body member in question.’ J. Asselin, supra, p. 151.” Morgan v. East Haven, supra. Thus, “[compensation in such cases is not dependent upon actual incapacity in whole or in part. Franko v. Schollhorn Co., 93 Conn. 13, 104 A. 485 [1918].” Dombrozzi v. Gross & Co., 112 Conn. 627, 629, 153 A. 780 (1931); see also J. Asselin, supra, pp. 151-54. “In fact, ‘[p]ermanent partial schedule awards are based on medical condition after maximum improvement has been reached and ignore wage loss entirely.’ 2 A. Larson, Workmen’s Compensation Law § 57.13, p. 10-41.” Levanti v. Dow Chemical Co., 218 Conn. 9, 13-14, 587 A.2d 1023 (1991).

The right to a specific indemnity award survives the claimant if, at the time of his death, the claimant was receiving or was entitled to receive specific award benefits. The benefits for 30 percent permanent partial disability of the back issued in 1978 were suspended when the claimant again became totally disabled, and remained suspended until his death in October, 1988.

As of the date of death, the balance of the specific benefits vested in the claimant’s presumptive dependent. Morgan v. East Haven, supra, 587; Finkelstone v. Bridgeport Brass Co., 144 Conn. 470, 472, 134 A.2d 74 (1957); Bassett v. Stratford Lumber Co., 105 Conn. 297, 299, 135 A. 574 (1926). Once the claimant’s loss of earnings ends, as in this case by death, the worker or his dependent is entitled to the balance of the specific indemnity award. J. Asselin, supra, p. 159.

The only right of setoff occurs under § 31-308 (c) which provides in pertinent part that “the commissioner shall, in his discretion, direct that the claimant, where the injury results in a loss of earnings and it is in the interests of the injured worker to be paid on that basis notwithstanding that the injured member may have attained maximum improvement, be paid partial compensation for loss of earnings, as provided above, and that such payments shall be made for as long as such loss of earnings shall continue; and if the injured worker’s loss of earnings shall end, he shall be paid for such permanent injuries in accordance with the provisions of subsection (b) of this section, minus any payments by way of partial compensation, for weeks subsequent to the date on which maximum improvement in the injured member had been attained. . . .” (Emphasis added.) If the claimant had been incapacitated due to an injury but remained able to perform some employment, although not his customary work, he would have been entitled to benefits under § 31-308 (a). Hansen v. Gordon, 221 Conn. 29, 39, 602 A.2d 560 (1992). Here, however, the parties stipulated to the fact that the deceased was totally incapacitated as of October, 1978, and the commissioner concurred. The compensation review division found that the payments made by the second injury fund from October 12, 1978, to October 4, 1988, were temporary total disability payments made under § 31-307. Therefore, there is no statutory right of setoff as there would have been if the claimant had received partial disability benefits under § 31-308 (c).

The decision is affirmed.

In this opinion the other judges concurred.

       General Statutes § 31-307 was amended by Public Acts 1991, Nos. 91-32, §§ 23, 41, and 91-339 §§ 26, 55. Those amendments do not affect this appeal.

       Maximum medical improvement is that time when there is no reasonable prognosis for complete or partial cure and no improvement in the physical condition or appearance of the injured body member can be reasonably made. Wrenn v. Connecticut Brass Co., 96 Conn. 35, 38,112 A. 638 (1921); see J. Asselin, Connecticut Workers’ Compensation Practice Manual (1985), p. 118.

         “[W]e propose where there is partial loss of earnings from the injury, the commissioner can direct payment of such partial loss of earnings until such loss of earnings has ended, and the commissioner can then require the payment of the specific due for permanent loss, minus such partial payments.” 12 H.R. Proc., Pt. 9, 1967 Sess., p. 227, remarks of Representative Paul Pawlak, Sr., regarding Public Acts 1967, No. 842, § 15, now General Statutes § 31-308 (c).

       General Statutes § 31-308 (a) provides in pertinent part: “If any injury for which compensation is provided under the provisions of this chapter results in partial incapacity, there shall be paid to the injured employee a weekly compensation equal to sixty-six and two-thirds per cent of the difference between the wages currently earned by an employee in a position comparable to the position held by such injured employee prior to his injury and the amount he is able to earn after such injury . . . .”
      General Statutes § 31-308 was amended by Public Acts 1991, Nos. 91-32, §§ 26,41, and 91-339, §§ 28, 55. That amendment does not affect this appeal.


author: Per Curiam.

text:
    State of Connecticut v. Alan A. Bachand
    (10499)
    Dupont, C. J., Foti and Freedman, Js.
    Submitted on briefs May 1
    decision released June 9, 1992

      G. Douglas Nash, public defender, and Kent Drager, assistant public defender, filed a brief for the appellant (defendant).

      Mark Solak, state’s attorney, and Jack W. Fischer, deputy assistant state’s attorney, filed a brief for the appellee (state).
   Per Curiam.

The sole issue in this appeal is whether the defendant was deprived of notice of his right to apply for sentence review pursuant to General Statutes § 51-195. The defendant pleaded nolo contendere to one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a), and was sentenced to a term of incarceration of fifteen years, execution suspended after ten years followed by five years of probation. The state, as part of a plea agreement, sought that sentence as a “cap” with the defendant retaining the right to argue for a lesser sentence.

The state concedes, and we agree, that this matter is controlled by State v. Anderson, 220 Conn. 400, 599 A.2d 738 (1992) and that, therefore, the defendant is entitled to notice of sentence review.

The case is remanded to the trial court with direction that the defendant be given notice of his right to sentence review, and that he be given thirty days thereafter in which to file a timely application for such review.