text:
    State of Connecticut v. Daniel Weidenhof II
    (13021)
    Peters, C. J., Healey, Glass, Covello and Hull, Js.

      Argued October 1
    decision released November 17, 1987

      Kevin C. Connors, for the appellant (defendant). Carolyn K. Longstreth, deputy assistant state’s attorney, with whom, on the brief, was Donald B. Caldwell, state’s attorney, for the appellee (state).
   Peters, C. J.

The principal issue in this appeal is whether the trial court erred in admitting into evidence the incriminatory statements that the defendant made during a custodial interrogation. The defendant, Daniel Weidenhof II, was charged in a three count information with the crimes of kidnapping in the first degree with a firearm in violation of General Statutes .§ 53a-92a, threatening in violation of General Statutes § 53a-62, and having a weapon in a motor vehicle in violation of General Statutes § 29-38. After a jury verdict finding him guilty on all counts, the defendant was sentenced to a total effective term of ten years imprisonment, to be suspended after two and one-half years and followed by five years of probation. The defendant appeals from this judgment. We find no error.

The jury could reasonably have found the following facts. About 4:30 p.m. on Saturday, November 9,1985, the victim, a nineteen year old man, was hitchhiking on Route 195 in Willimantic in order to go to work at a convenience store on the University of Connecticut campus at Storrs. He got a ride in a car driven by a lone white male in his late thirties, later identified as the defendant. On the passenger seat of the car there were several magazines, one of which was an explicitly homosexual publication bearing the title “Blue Boy.”

During the ride to Storrs, the defendant placed his hand on the victim’s knee, called him a “pretty boy,” and indicated his interest in homosexual relations. The victim declined and asked to be dropped off at the next traffic light. When the victim sought to leave the car as it approached the Storrs campus, the defendant objected, pulled out a gun and threatened to “blow [the victim’s] head off.” As the car slowed for a traffic light, the victim managed nonetheless to jump out and make his way to his place of employment.

The victim reported the incident to the state police later that evening. Several days later, as the result of a further interview, with the assistance of Sergeant Frank Griffin, the victim put together a composite rendering of the operator of the car. The victim selected the defendant’s photograph out of a photo array presented to him on January 24, 1986.

On the basis of this information, the police obtained search and arrest warrants that were simultaneously served upon the defendant outside his apartment in the late afternoon of February 4,1986. Pursuant to these warrants, the police arrested the defendant, searched his apartment and seized his car. In the apartment, they found and seized an automatic pistol, a revolver, an ammunition clip and several homosexual magazines including an issue of “Blue Boy.”

Immediately upon the defendant’s arrest, the police advised him of his constitutional rights and the defendant initialed a card attesting to that fact. The defendant was then taken for questioning to Troop C headquarters in Stafford Springs. During the subsequent interrogation, the defendant acknowledged that he was a homosexual, that he kept homosexual magazines in his car, and that, on the previous November 9, he had picked up a hitchhiker on Route 195 and had driven him to Storrs. The defendant denied, however, having had a gun in his car or in any other way having committed the crimes with which he was charged.

In appealing from the judgment of conviction, the defendant has raised seven claims of error. He alleges that the trial court erroneously: (1) admitted the defendant’s incriminatory statements into evidence; (2) limited the defendant’s cross-examination of Sergeant Griffin; (3) admitted the defendant’s uncharged prior acts of misconduct into evidence; (4) admitted hearsay testimony of out-of-court identifications of the defendant into evidence; (5) admitted a composite drawing into evidence; (6) admitted a weapon seized from the defendant’s apartment into evidence; and (7) admitted a homosexual magazine seized from the defendant’s house into evidence. We may conveniently consider jointly the defendant’s first two claims, which have constitutional implications, and then his remaining evidentiary claims. We find no error.

I

The defendant’s first two claims of error relate to his challenge of the voluntariness of the incriminatory statements that he made to the state police. He first claims that the trial court erred in admitting into evidence the oral statements that he had made to Sergeant Griffin during the custodial interrogation that immediately followed his arrest on February 4,1986. These statements were inadmissible, according to the defendant, because, although he had been warned of his constitutional privilege against self-incrimination in accordance with the rules laid down in Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), he had not knowingly, intelligently and voluntarily waived his constitutional privilege. His second claim is that the trial court unduly limited his cross-examination of Griffin concerning his alleged waiver of his constitutional rights. We find no error in either of these rulings.

The state bears the burden of proving, by a preponderance of the evidence, that a defendant has knowingly, intelligently and voluntarily waived the rights that inhere in the privilege against self-incrimination. Lego v. Twomey, 404 U.S. 477, 489, 92 S. Ct. 619, 30 L. Ed. 2d 618 (1972); State v. Boscarino, 204 Conn. 714, 743, 529 A.2d 1260 (1987); State v. Hernandez, 204 Conn. 377, 395, 528 A.2d 794 (1987); State v. Gray, 200 Conn. 523, 533, 512 A.2d 217, cert. denied, 479 U.S. 940,107 S. Ct. 423, 93 L. Ed. 2d 373 (1986). By admitting the defendant’s custodial statements into evidence, the trial court implicitly determined, as a finding of fact, not only that the defendant had been adequately warned about his Miranda rights but also that he had properly waived these rights. Because the finding of waiver implicates important constitutional rights, our review of this finding of fact requires us to undertake “a scrupulous examination of the record to ascertain whether such a finding is supported by substantial evidence.” State v. Frazier, 185 Conn. 211, 219, 440 A.2d 916 (1981), cert. denied, 458 U.S. 1112,102 S. Ct. 3496, 73 L. Ed. 2d 1375 (1982); State v. Hernandez, supra; State v. Harris, 188 Conn. 574, 580, 452 A.2d 634 (1982), cert. denied, 460 U.S. 1089, 103 S. Ct. 1785, 76 L. Ed. 2d 354 (1983).

The record in this case demonstrates that, before beginning the interrogation at Troop C headquarters, Griffin reminded the defendant that he had previously been informed of his constitutional rights. The defendant had indeed earlier initialed a card containing Miranda warnings, and had orally indicated his understanding of those warnings. After the reminder, Griffin asked the defendant whether he would be willing to answer questions without an attorney present. The defendant replied affirmatively and proceeded to respond in detail to the questions that Griffin put to him. The defendant, however, neither gave the police a written statement nor did he execute a written waiver of his constitutional rights.

The testimony of the police concerning the circumstances of the defendant’s interrogation depicts a literate adult, with an adequate command of the English language, who was “calm, cooperative, [and] competent,” who participated willingly in their dialogue, and who was not under the influence of either drugs or alcohol. There is no evidence to the contrary. Significantly, there is neither allegation nor evidence that the police resorted to threats, promises or other improper tactics to induce the defendant to make incriminatory statements.

The defendant advances two related arguments in support of his contention that this record is insufficient to establish waiver. As a general matter, he characterizes the record that we have summarized above as “virtually barren” with respect to proof of waiver. This claim is unsustainable on its face. The unchallenged testimony of the police officers, coupled with the absence of any allegations of fact that cast doubt upon the knowing and voluntary nature of the defendant’s waiver, suffice to support the trial court’s factual finding. See State v. Aversa, 197 Conn. 685, 697, 501 A.2d 370 (1985). As a further, more specific, claim of error, the defendant would have us draw an inference against waiver from the failure of the police to ask the defendant, in so many words, whether he wished to waive or give up his constitutional rights. Despite the adequacy of the Miranda warnings that he received and understood, it was not enough, according to the defendant, to ask him whether he was willing to answer questions without an attorney present. In effect, the defendant would have us condition the validity of a waiver on the utterance of talismanic words. We decline to do so. Apart from the absence of any authority for so rigid a principle, we doubt that a mandatory reference to “constitutional rights” would be more likely to communicate to lay persons the essence of the privilege against self-incrimination than the question that was put to the defendant in this case. Cf. State v. Suggs, 194 Conn. 223, 227-28, 478 A.2d 1008 (1984). As did the trial court, we conclude that the state has met its burden of proving, in light of the totality of the circumstances, that the defendant’s waiver was knowing, intelligent and voluntary.

The defendant’s related constitutional claim on the issue of waiver challenges the trial court’s rulings limiting his cross-examination of Griffin to preclude inquiry into the failure of the police to secure a written waiver of the defendant’s Miranda rights. From the outset of the trial, the state had acknowledged that the defendant had never been asked to execute such a written waiver. In voir dire proceedings outside the presence of the jury concerning the admissibility of the defendant’s statements, the court had correctly ruled that a written waiver was not essential. North Carolina v. Butler, 441 U.S. 369, 373, 99 S. Ct. 1755, 60 L. Ed. 2d 286 (1979); State v. Aversa, supra, 696; State v. Harris, supra, 580. In the presence of the jury, the defendant sought nonetheless to cross-examine Griffin about the contents of a written rights waiver form and the decision of the police not to use such a form in this case. Although the court permitted other questioning about the circumstances surrounding Griffin’s interrogation of the defendant, the court ruled that the proffered inquiry into the waiver form was inadmissible. In the course of sustaining the state’s objection to this line of questioning, the court expressly instructed the jury that it was unnecessary for the state to obtain a written waiver of Miranda rights. Conceding the propriety of this instruction, the defendant nevertheless maintains that the court impermissibly restricted his constitutional right to cross-examine Griffin, who was, on the waiver issue, one of the principal witnesses against him. We disagree.

The sixth amendment to the United States constitution confers upon a defendant the right to be confronted with the witnesses against him. A significant aspect of the right of confrontation is the cross-examination of adverse witnesses “ ‘to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the [witnesses].’ ” State v. George, 194 Conn. 361, 365, 481 A.2d 1068 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 963, 83 L. Ed. 2d 768 (1985); Davis v. Alaska, 415 U.S. 308, 318, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974). Because the core value protected by the confrontation clause is the enhancement of the truth-seeking process; see State v. Jarzbek, 204 Conn. 683, 692-93, 529 A.2d 1245 (1987); “[cjross-examin-ation to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted.” State v. Wilson, 188 Conn. 715, 720, 453 A.2d 765 (1982); State v. Corley, 177 Conn. 243, 246, 413 A.2d 826 (1979). Where reliability is not directly implicated, however, the scope of cross-examination is within the discretion of the trial court. State v. Vitale, 197 Conn. 396, 402-403, 497 A.2d 956 (1985); State v. Gaynor, 182 Conn. 501, 510-11, 438 A.2d 749 (1980).

In this case, we agree with the state that the acknowledged failure of the police to request a written waiver form had no significant implication for the reliability of Griffin’s testimony concerning his interrogation of the defendant. The jury had to decide whether to believe Griffin’s account of what had transpired during the interrogation and what weight to give the statements it found credible. State v. Vaughn, 171 Conn. 454, 460-61, 370 A.2d 1002 (1976). The trial court could reasonably have determined that an inquiry into written waivers would not appreciably have assisted the jury in its task. We reiterate that, except with regard to the waiver form, the court freely permitted cross-examination of the witness concerning the circumstances of the interrogation. Accordingly, we conclude that the trial court did not abuse its discretion in ruling as it did.

II

The defendant’s remaining claims of error challenge the validity of a number of evidentiary rulings by the trial court. The defendant maintains that the trial court erroneously admitted into evidence: (1) testimony concerning prior acts of misconduct by the defendant; (2) testimony concerning the victim’s out-of-court identification of the defendant; (3) a composite drawing allegedly depicting the person who had threatened the victim; (4) a revolver found in the defendant’s apartment; and (5) a homosexual magazine also found in the apartment. We find no error in any of these rulings.

A

Under the rubric of “uncharged prior acts of misconduct,” the defendant challenges the admissibility of testimony concerning two incidents that occurred in the fall of 1985 at a Mobil gasoline station in Tolland some eight miles from the Storrs campus of the University of Connecticut. One involved the station’s owner, Jeffrey Waterhouse, and the other involved its service manager, Charles Markunas. Both of these witnesses testified to seeing homosexual literature openly displayed in the defendant’s car while they were selling him gasoline at times proximately related to the alleged crimes in this case. That testimony is not at issue. Both also testified to seeing a gun in the defendant’s car, and the defendant contends that this evidence should have been excluded.

At trial, the state offered this evidence both to establish the identity of the defendant’s vehicle as the one allegedly used to commit the crimes charged and to rebut the defendant’s alleged statement to Griffin that he had never had a gun in his car. The defendant disagreed, claiming that the evidence was irrelevant and could not be used to impeach a nontestifying defendant. With respect to the Waterhouse testimony, the record contains no reference whatsoever to any claim of admissibility or exclusion grounded in the rules pertaining to evidence of alleged prior misconduct. With respect to the Markunas testimony, while the defendant adverted to the grounds “previously stated with respect to the prior witness, [Waterhouse],” the record is clouded by the trial court’s subsequent sua sponte interjection of “bad act” as the basis for admissibility. The defendant, although not overtly acquiescing in this characterization, which resulted in a limiting instruction to the jury, resisted the court’s request for clarification of his position, stating merely: “In terms of what I’m requesting, at this point I am objecting to the witness’ testimony.” In our judgment, with respect to the testimony of both of these witnesses, the record fails to manifest the defendant’s compliance with the Practice Book requirement that appealable claims of error should have been “distinctly raised at the trial.” Practice Book § 4185. We perceive in this case no manifest injustice in declining to engage in a plenary review of the claims concerning prior misconduct evidence that the defendant failed to pursue in the trial court. There was no error in admitting this testimony.

B

The defendant’s next claim of evidentiary error arises out of third party testimony offered by the state to cor-robórate identifications made by the victim. At trial, the victim made an in-court identification of the defendant and identified the automatic weapon seized from the defendant’s home as similar to the one displayed at the time of the crime. When Griffin was asked to testify to two corroborating out-of-court identifications by the victim, one a selection of the defendant’s picture from a photo array, and one identifying the automatic gun, the defendant objected that such testimony was inadmissible because it was hearsay. The trial court overruled these objections because the victim was in court and available for cross-examination.

The trial court’s ruling was correct. In State v. McClendon, 199 Conn. 5,11, 505 A.2d 685 (1986), we held that an exception to the hearsay rule was warranted for out-of-court identifications that are reliable and can be tested by cross-examination of the relevant witnesses. See also State v. Frost, 105 Conn. 326, 341, 135 A. 446 (1926). The defendant has not challenged the underlying reliability of the victim’s out-of-court identifications and had ample opportunity to cross-examine both the victim and Griffin.

C

The defendant’s third claim of evidentiary error challenges the admission of a composite drawing that the victim, with the assistance of Griffin, assembled from the victim’s description of the person who had kidnapped and threatened him. When the victim testified about the composite drawing during his direct examination, the state offered the drawing into evidence, but withdrew that offer because of the defendant’s objection. The victim did, however, testify about how the drawing had been prepared and that he was satisfied with the likeness it depicted. Griffin subsequently gave a further demonstration about the preparation of composite drawings and specifically testified to his cooperation with the victim in putting an appropriate composite together. The defendant nevertheless objected to having the composite made an exhibit on the basis of Griffin’s testimony.

We agree with the state that the defendant’s objection was properly overruled by the trial court. Admissibility of a composite drawing requires a proper foundation. The moving party must present witnesses with firsthand knowledge of how the composite was prepared and of how accurately it portrays that which it is intended to depict. State v. Packard, 184 Conn. 258, 275, 439 A.2d 983 (1981). In this case, such testimony was provided by the victim and by Griffin. The necessity for a proper foundation is substantive and not formal. If the court is provided with the information needed for a proper ruling, it matters not whether that information comes from one witness or two. If, arguendo, the victim would have been the preferable witness through whom to offer the drawing into evidence, this defendant, who insisted on an alternate procedure, cannot be heard to complain. “Action induced by an appellant cannot ordinarily be a ground of error.” State v. Scognamiglio, 202 Conn. 18, 25, 519 A.2d 607 (1987); State v. Harman, 198 Conn. 124, 135-36, 502 A.2d 381 (1985); State v. Kish, 186 Conn. 757, 769, 443 A.2d 1274 (1982); State v. Cobbs, 164 Conn. 402, 424, 324 A.2d 234, cert. denied, 414 U.S. 861, 94 S. Ct. 77, 38 L. Ed. 2d 112 (1973).

D

The defendant’s last two claims of evidentiary error concern two items seized from his apartment, in accordance with a search warrant, at the time of his arrest. The defendant challenges neither the validity of the search warrant, nor the propriety of introducing into evidence the automatic pistol that the police found in their search. He maintains, however, that the state failed to establish a sufficient evidentiary basis for introducing a revolver and a homosexual magazine as exhibits against him.

The revolver was admitted through the testimony of Charles Markunas, the service manager of the Mobil gasoline station in Tolland. As part of his testimony concerning his observation of the defendant in a car in which homosexual literature was openly displayed, Markunas, as previously discussed, properly testified to seeing the butt end of a gun under the front seat of the defendant’s car. Markunas identified the gun he had seen as resembling the revolver found in the defendant’s apartment, whereas both the victim and Waterhouse had identified the handgun that they had observed as an automatic pistol. We note that, although the information charging the defendant with the crimes of which he was convicted failed to specify the type of handgun that had been used, the defendant never requested a bill of particulars by way of clarification.

The record at trial does not clearly establish the grounds on which the defendant objected to the admission of the revolver. Initially, the defendant objected that there was “no connection” between the weapon used in the incident on November 9, 1985, and the weapon identified by Markunas, and that the revolver should therefore be excluded as immaterial and irrelevant. When the court pointed out the latent ambiguity about the weapon designated in the complaint, defense counsel retreated and acknowledged: “With respect to your Honor’s recitation of the prior testimony, that would tend to indicate some, some probative value to this case, I will concede that.” He then urged the court to consider that the probative effect of the testimony was much less than its prejudicial effect. The court did not pursue that argument but suggested instead that the revolver was admissible for the limited purpose of proving identity by showing a “bad act,” i.e., that on a prior occasion the defendant had had a handgun in his car. The defendant did not offer any ground for objection to the admission for this limited purpose, but, when pressed by the court, merely reiterated that, “In terms of what I’m requesting, at this point I am objecting to the witness’ testimony.” The court, when it admitted the revolver into evidence, expressly cautioned the jury that the revolver was not probative of the defendant’s guilt of any of the crimes with which he was being charged.

On appeal, the defendant has returned to his initial argument concerning the lack of relevance of the revolver to the crimes charged. We are unpersuaded. First, that argument, in effect having been abandoned at trial, cannot now be revived. Second, that argument does not address the limited purpose for which the revolver was admitted at trial. In conjunction, these reasons persuade us to sustain the ruling of the trial court. As with the underlying testimony leading to the introduction of the revolver into evidence, given the inadequacy of the record below, the defendant has failed to comply with the requirements of Practice Book § 4185. “All of the claims involve allegations of abuse of the trial court’s broad discretion to determine the relevance and admissibility of evidence at trial. State v. Gold, 180 Conn. 619, 646, 431 A.2d 501 (1980). In the absence of any demonstration that these eviden-tiary rulings constitute plain error, or that enforcement of our rule will cause injustice; Practice book § 3164 [now § 4187]; we decline to consider these claims.” State v. Vass, 191 Conn. 604, 621,469 A.2d 767 (1983).

The defendant’s claim with respect to the homosexual magazine “Blue Boy” asks us to overturn the trial court’s ruling that the magazine had sufficient probative value, despite its potentially prejudicial nature, to warrant its introduction into evidence. According to the victim’s testimony, on the day of the alleged crimes he saw a magazine with such a title in the defendant’s car and recognized it as a homosexual publication, but did not open it to examine its contents. Over the defendant’s objection on grounds of irrelevance and prejudice, the court admitted the magazine into evidence as an exhibit because it corroborated the victim’s identification of the car and the car’s operator. As it had done on a previous occasion, the court expressly instructed the jury not to draw adverse inferences as to guilt from evidence implicating homosexuality.

On appeal, the defendant acknowledges that the discovery of the magazine in the defendant’s apartment had probative value, because he concedes that if the magazine had been Time or Newsweek, the trial court’s ruling would have been correct. The sole issue therefore is whether the trial court abused its discretion in determining that the magazine’s probative value outweighed its prejudicial impact. See State v. Sharpe, 195 Conn. 651, 660, 491 A.2d 345 (1985); State v. Reid, 193 Conn. 646, 656, 480 A.2d 463 (1984). In our review of such discretionary evidentiary determinations, “[w]e will make every reasonable presumption in favor of upholding the trial court’s ruling.” State v. Morowitz, 200 Conn. 440, 446, 512 A.2d 175 (1986); see State v. Johnson, 190 Conn. 541, 549, 461 A.2d 981 (1983).

We conclude that the trial court did not abuse its discretion in this case. The defendant has not challenged, on grounds of undue prejudice, the admissibility of his statements to Sergeant Griffin concerning his homosexual lifestyle. Further, the trial court repeatedly warned the jury that evidence of homosexuality did not prove that the defendant was guilty of the crimes with which he had been charged. Regardless of its homosexual orientation, the magazine was highly probative to corroborate the victim’s testimony. In these circumstances, the court’s ruling was not erroneous.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-92a. kidnapping in the first degree with a firearm: class a felony: one year not suspendable. (a) A person is guilty of kidnapping in the first degree with a firearm when he commits kidnapping in the first degree as provided in section 53a-92, and in the commission of said crime he uses or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a pistol, revolver, machine gun, shotgun, rifle or other firearm. No person shall be convicted of kidnapping in the first degree and kidnapping in the first degree with a firearm upon the same transaction but such person may be charged and prosecuted for both such offenses upon the same information.”

       “[General Statutes] Sec. 53a-62. threatening: class a misdemeanor. (a) A person is guilty of threatening when: (1) By physical threat, he intentionally places or attempts to place another person in fear of imminent serious physical injury, or (2) he threatens to commit any crime of violence with the intent to terrorize another, to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or (3) he threatens to commit such crime in reckless disregard of the risk of causing such terror or inconvenience.”

       “[General Statutes (Rev. to 1985)] Sec. 29-38. weapons in vehicles. Any person who knowingly has, in any vehicle owned, operated or occupied by him, any weapon for which a proper permit has not been issued as provided in section 29-28 or section 53-206, or has not registered such weapon as required by section 53-202, as the case may be, shall be fined not more than one thousand dollars or imprisoned not more than five years or both, and the presence of any such weapon in any vehicle shall be prima facie evidence of a violation of this section by the owner, operator and each occupant thereof. The word ‘weapon’, as used in this section, means any pistol or revolver, any dirk knife or switch knife or any knife having an automatic spring release device by which a blade is released from the handle, having a blade of over one and one-half inches in length, and any other dangerous or deadly weapon or instrument, including any slung shot, black jack, sand bag, metal or brass knuckles, or stiletto, or any knife, the edged portion of the blade of which is four inches or over in length.”

       The privilege against self-incrimination is contained both in the fifth and fourteenth amendments to the United States constitution and in article first, § 8, of the Connecticut constitution. We have held that the principles set out, as a matter of federal constitutional law, in Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), have an independent basis in our state constitution. State v. Burge, 195 Conn. 232, 246 n.15, 487 A.2d 532 (1985); State v. Ferrell, 191 Conn. 37, 41, 463 A.2d-573 (1983); State v. Falby, 187 Conn. 6,11 and n.l, 444 A.2d 213 (1982); see Michigan v. Long, 463 U.S. 1032, 1041, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983).

       The defendant did not request a pretrial hearing on whether his incriminatory statements should be suppressed. The issue was raised instead during the state’s case-in-chief when Sergeant Griffin was called to testify about his interrogation of the defendant. The court determined the admissibility of the statements during a voir dire hearing outside the presence of the jury at which the defendant did not testify.

       The defendant did not raise this claim under article first, § 8, of the Connecticut constitution.

       There is no controversy about the rules that govern a trial court’s discretion to admit uncharged misconduct into evidence. Although a defendant’s prior misconduct is inadmissible to prove bad character or criminal propensities; State v. Williams, 203 Conn. 159,185, 523 A.2d 1284 (1987); State v. Morowitz, 200 Conn. 440, 442, 512 A.2d 175 (1986); State v. Brown, 199 Conn. 47, 56, 505 A.2d 1225 (1986); C. McCormick, Evidence (3d Ed. 1984) § 190, pp. 557-58; such evidence may be admissible for other purposes. Among the legitimate purposes is the use of such testimony to establish identity through a common plan or design. Reliance on a common plan or design requires the state to show, however, that earlier incidents and the crime presently charged are “sufficiently distinctive and unique ‘as to be like a signature.’ McCormick, supra, p. 560; State v. Mandrell, 199 Conn. 146,152, 506 A.2d 100 (1986); State v. Braman, [191 Conn. 670, 677, 469 A.2d 760 (1983)].” State v. Morowitz, supra, 443. Application of these rules in this case would not have been plain error, because of the relevance of this evidence to the issue of identity.

       Neither the testimony of the victim nor that of Waterhouse definitively established that the handgun they had seen was an automatic pistol.


source: Caselaw Access Project

author: Covello, J.

license: Public Domain

text:
    State of Connecticut v. Kenneth Thomas
    (12492)
    Healey, Shea, Glass, Covello and Hull, Js.
    Argued October 2
    decision released November 17, 1987

      Robert M. Casale, for the appellant (defendant).

      Judith Rossi, deputy assistant state’s attorney, with whom were Jack W. Fischer, certified legal intern, and, on the brief, Arnold Markle, state’s attorney, and James G. Clark, assistant state’s attorney, for the appellee (state).
   Covello, J.

On January 23, 1984, a jury found the defendant guilty of murder in violation of General Statutes § 53a-54a. A judgment of conviction followed. The defendant claims on appeal that the trial court erred in: (1) failing to charge the jury on the lesser included offense of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (2); (2) admitting testimony concerning a rope allegedly used in the murder; (3) admitting evidence relative to the state of mind of the victim and her daughter; (4) admitting evidence of two acts of violence committed by the defendant; and (5) denying the defendant’s motion for mistrial on the ground that improper cross-examination of former counsel impaired the defendant’s right to a fair trial and constituted prosecutorial misconduct. We disagree with each of these claims and find no error.

The jury could reasonably have found the following facts. The defendant lived with the victim, Sara Rose, and her twelve year old daughter in a New Haven apartment. Because of her deteriorating relationship with the defendant, the victim moved out of that apartment on or about March 31,1982. She and her daughter lived temporarily with her parents while they prepared to move to a new apartment in West Haven. On several occasions the defendant attempted to effect a reconciliation, but the victim rejected his efforts. On Palm Sunday, April 4,1982, the day the victim was last seen alive, witnesses observed the defendant in the early morning standing behind a pillar near the entrance to the telephone company where the victim was employed. He also was seen that day at the 11 a.m. church service the victim attended, and again in the telephone company parking lot when the victim left work at 7 p.m. A security guard saw the defendant drive the victim’s car recklessly out of the parking lot with the victim as his passenger. The victim was not seen again until her body was found floating in the Quinnipiac River in New Haven on May 8, 1982. The victim’s hands were bound behind her back, her legs were bound together at the ankles, and a bucket was attached to her feet, all with the type of rope used for clothesline.

The defendant first claims error in the trial court’s failure to charge the jury on the lesser included offense of manslaughter in the first degree. A manslaughter instruction is appropriate when the evidence is legally sufficient to justify a conclusion that a murder has been committed “under the influence of extreme emotional disturbance.” General Statutes § 53a-55 (a) (2). “[A]n extreme emotional disturbance is one where self-control and reason are overborne by intense feelings such as passion, anger, distress, grief, excessive agitation or other similar emotions.” State v. Elliott, 177 Conn. 1, 9, 411 A.2d 3 (1979).

A lesser included offense instruction is “purely a matter of our common law”; State v. McIntosh, 199 Conn. 155,158, 506 A.2d 104 (1986); rather than a constitutional right. Such an instruction is required when “there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense . . . .” State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980). In this case, neither did the defendant specifically assert the affirmative defense of extreme emotional disturbance, nor was there sufficient evidence put forth at trial to require a charge on extreme emotional disturbance. See State v. Asherman, 193 Conn. 695, 732, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985); State v. D'Antuono, 186 Conn. 414, 419-22, 441 A.2d 846 (1982). Indeed, the defendant did not admit that he killed the victim, let alone that he did so under mitigating circumstances. The principal facts on this issue related to the defendant’s allegedly distraught condition after the victim’s disappearance. We conclude that, under these circumstances, the trial court did not err in refusing to charge the jury on manslaughter in the first degree as a lesser included offense.

The defendant next claims that the trial court erred in admitting testimony concerning a rope allegedly used in the crime. The victim’s sister, Joanne Thompson, testified that on Friday, April 2,1982, she helped the victim move her belongings from the apartment she had shared with the defendant. While there, Thompson observed a clothesline hung with clothes in the basement. On Monday, April 5,1982, the day after the victim disappeared, Thompson returned to the defendant’s apartment to look for the victim and noticed that the clothesline had been cut. At trial, Thompson identified the rope which had been used to bind the victim’s hands and feet as similar to the clothesline rope she had observed, first intact and later cut, in the defendant’s basement.

The defendant claims that the trial court erred in admitting this testimony without first establishing that the rope removed from the victim was indeed the rope hung as the defendant’s clothesline. We disagree. Evidence is relevant if it “ ‘tends to establish the existence of a material fact or to corroborate other direct evidence in the case. . . .’ ” State v. Fritz, 204 Conn. 156, 168, 527 A.2d 1157 (1987). Determinations of relevancy are within the broad discretion of the trial court and will not be overturned in the absence of clear abuse of that discretion. Id., 167-68. In making such determinations, a trial court is not required to find as a prerequisite to admissibility that evidence is conclusively linked to other evidence. “Evidence is not rendered inadmissible simply because it is not conclusive. It is admissible if it tends to support a relevant fact even in a slight degree, so long as it is not prejudicial or merely cumulative. . . . The defendant’s objection goes essentially to the weight of the evidence rather than to its admissibility.” State v. Morrill, 197 Conn. 507, 548-49, 498 A.2d 76 (1985). In analogous factual settings, this court has explicitly found admissible evidence tending to show that an accused had access to the means to commit the crime charged. See, e.g., State v. Miller, 202 Conn. 463, 482, 522 A.2d 249 (1987) (evidence that handcuffs were used at defendant’s place of work admissible to show defendant’s access to handcuffs); State v. Smith, 198 Conn. 147, 157, 502 A.2d 874 (1985) (evidence of knife in defendant’s possession admissible despite lack of proof establishing it as the knife used in the crime). We find no error in the admission of this testimony.

The defendant next claims error in the admission of testimony concerning the state of mind of the victim and her daughter, from which the jury could have inferred that they feared the defendant. Evidence in this regard consisted of testimony from four witnesses centering on two events. Kevin Moore, a frequent visitor to the home of the victim’s parents, and Patricia Rose, the victim’s sister, both testified as to certain events of April 1,1982. Both witnesses stated that on that date, while the victim was staying at her parents’ apartment, the defendant came to look for her there. Both witnesses testified that when the victim was told that the defendant was at the door, she ran into a bedroom to hide.

Two other witnesses were Shirley Wright and Sherry Springer, neighbors of the victim and the defendant during the time they lived together. The women testified concerning arguments between the victim and the defendant, and their effect on the victim’s twelve year old daughter, Nicole. The witnesses testified that, in one of these incidents shortly before the victim moved out, the defendant had held a knife to the victim’s throat. Nicole had sought the neighbors’ intervention and had been “shaking,” “trembling” and “afraid.”

The defendant objected to this evidence at trial and continues to challenge it on appeal on grounds of hearsay and prejudice. The state introduced the testimony that the victim hid from the defendant to support its theory that the motive for the murder was the deteriorating relationship between the victim and the defendant. The trial court expressly instructed the jury that the purpose of the evidence was to show that the relationship had broken down, and that, consistent with the state’s theory of the case, the victim’s estrangement from the defendant supplied the motive for him to commit murder. Similarly, the neighbors’ testimony relative to the argument and the defendant’s knife wielding was admitted to show that the defendant had threatened the victim and, further, to support the state’s theory as to motive and intent. Testimony describing Nicole’s observable distress as a consequence of the domestic arguments was introduced as further evidence of the deteriorating and stormy relationship between the victim and the defendant.

Nonassertive conduct such as running to hide, or shaking and trembling, is not hearsay. State v. McCarthy, 197 Conn. 166,173, 496 A.2d 190 (1985). The trial court correctly determined that the contested testimony was reliable circumstantial evidence of a deteriorated relationship. As such, it was relevant and probative because it tended to support the state’s claim that the relationship had broken down, and from that circumstance the jury could infer motive.

While the testimony concerning these episodes was adverse to the defendant, we find no unfair prejudice. See State v. Graham, 200 Conn. 9, 12, 509 A.2d 493 (1986); State v. Wilson, 180 Conn. 481, 490, 429 A.2d 931 (1980). Because we hold that the disputed testimony was relevant, not hearsay, and not unfairly prejudicial to the defendant, we find no error on this issue.

The defendant next contends that the trial court erred in admitting evidence of two acts of violence involving him. The first such instance was the argument with the victim, during which the defendant held a knife to the victim’s throat. The second such incident involved an argument with the victim’s father a few days after her disappearance, which developed into an altercation in which the defendant cut the victim’s father’s hand with a knife.

With respect to the first incident, we conclude that the trial court properly admitted this evidence as probative of the defendant’s motive and intent. Evidence of the violent argument clearly bore on the deteriorated relationship which, the state theorized, supplied the motive for the murder. While “evidence of prior acts of misconduct is inadmissible merely to show a defendant’s bad character or tendency to commit criminal acts . . .”; State v. Ramsundar, 204 Conn. 4,15, 526 A.2d 1311 (1987); such evidence “may be allowed for the purpose of proving . . . intent [or] motive . . . .” (Emphasis added.) State v. Ibraimov, 187 Conn. 348, 352, 446 A.2d 382 (1982). The trial court, furthermore, instructed the jury on the limited ground of admissibility of this evidence. The defendant did not object to the instruction.

As to the second incident, part of the state’s proof in this case included the defendant’s consciousness of guilt as manifested by his sudden reluctance to communicate with the victim’s family following her disappearance. After the victim had terminated their relationship and abruptly moved out of the apartment they had shared, the defendant had made efforts to effect a reconciliation. He had attempted to visit her at her parents’ home, had engaged her in conversation at church on Palm Sunday, and was seen waiting outside her place of employment, and in the parking lot there on the last day she was known to be alive. Thereafter, the defendant was unwilling to cooperate with the victim’s family in their frantic efforts to locate their daughter. On the sixth day of her unexplained absence, the defendant argued with the victim’s father when they encountered each other in the street, knocked the father’s hat off, and ran away. The defendant’s efforts to secure a reconciliation with the victim prior to her disappearance, contrasted with his avoidance of and hostility toward her family afterward, was relevant evidence from which the jury could infer a guilty state of mind. Such “ 'consciousness of guilt’ is strong evidence that the person is indeed guilty . . . .” State v.Moynahan, 164 Conn. 560, 596, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S. Ct. 291, 38 L. Ed. 2d 219 (1973).

The defendant claims that the incident with the victim’s father constitutes evidence of prior misconduct and, as such, is inadmissible. This is not the case. The victim’s father was permitted to testify only as to the defendant knocking his hat off and running away when they met each other on the street. Significantly, he was not allowed to testify beyond that to the scuffle that ensued and the resulting knife wound inflicted by the defendant. The jury learned that a knife had been used in the encounter only from the defendant’s own account of it. Tape recordings of the defendant’s April 10,1982 telephone calls to the victim’s sister and to a police detective were played for the jury as part of the state’s case. In those conversations, the defendant characterized the episode as an unprovoked attack, in which he, as an innocent victim, was acting in self-defense by deflecting the knife wielded by the aggressor, the victim’s father, who was thereby cut.

The incident, so portrayed and uncontradicted, can hardly be said to constitute evidence of the defendant’s prior misconduct. “Because the admission of such evidence involves judicial discretion, ‘[o]ur review is limited to whether [the] ruling exceeded the latitude accorded to the exercise of [such] discretion.’ ” State v. Smith, 198 Conn. 147,158, 502 A.2d 874 (1985); State v. Ibraimov, 187 Conn. 348, 352, 446 A.2d 382 (1982). In this case, the trial court excised irrelevant portions of the tapes, and stated its intention to instruct the jury as to the limited grounds for admissibility of the tape recordings. The defendant, in response, expressly declined the court’s offer of such a limiting instruction. “If the trial judge, in the exercise of his judicial discretion, determines that the evidence is relevant and that its probative value outweighs its prejudicial effect, his decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done.” State v. Smith, supra, 157; State v. Johnson, 190 Conn. 541, 549, 461 A.2d 981 (1983). Under these circumstances, we hold that the trial court did not abuse its discretion in admitting evidence of these two acts of violence by the defendant.

Finally, the defendant claims error in the state’s cross-examination of the defendant’s prior counsel. The defendant called his former attorney as his own witness, to testify that he had advised the defendant not to make statements to anyone and thus to explain the defendant’s uncooperative attitude toward the victim’s family.

In the absence of the jury, a colloquy took place between counsel and the court. Defense counsel expressed concern about minimizing questions from the prosecutor upon cross-examination which would require invocation of the attorney-client privilege. Mindful of the fact that the defendant himself had produced this witness and thereby created the situation in which possible unfair inferences might arise, the trial court sought to balance the state’s right to full cross-examination with the defendant’s right to invoke a privilege free from resulting negative inferences. See State v. Reddick, 197 Conn. 115,126-27, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986).

The court advised counsel, before examination of the witness began, that the state might be placed in an untenable position if the prosecutor was absolutely forbidden to pursue any line of questioning which might conceivably touch on the issue of attorney-client privilege. The defendant, who persisted in calling the attorney witness, cannot now be heard to complain on appeal that he was “forced” to invoke the privilege in front of the jury. Moreover, any harm that may have been caused by the state’s cross-examination was cured by the court’s limiting instruction immediately following the conclusion of the attorney witness’s testimony, an instruction which was thereafter reinforced at the time of the charge to the jury.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 53a-54a provides in pertinent part: “murder DEFINED. AFFIRMATIVE DEFENSES. EVIDENCE OF MENTAL CONDITION. classification, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person. ...”

       General Statutes § 53a-55 (a) (2) provides in relevant part: “MANSLAUGHTER IN THE first degree: class B FELONY, (a) A person is guilty of manslaughter in the first degree when . . . (2) with intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he [acts] under the influence of extreme emotional disturbance. . . .”

       General Statutes § 53a-54a provides in relevant part: “(a) . . . many prosecution under this subsection, it shall be an affirmative defense that the defendant [acts] under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be ... .”

       There was general testimony to the effect that the defendant used drugs. Further, it was claimed that he stated his intention to move in with his grandmother, even though he knew that she resided in housing restricted to the elderly.

       The trial court instructed the jury: “Now, that evidence is offered to show what is known as the state of mind of the deceased at that time, and the state of mind of the deceased at that time, the fact that she went into the other room upon hearing that the defendant was downstairs, is offered for what weight you wish to give it on the subject of the relationship between the deceased and the defendant, and the deterioration of that relationship between the deceased and the defendant which the State claims in this case is a motive in connection with this case, but the evidence of her running into the other room is not admitted to show that this defendant had committed any violence towards her or was a bad person in any respect. It is admitted solely to show her state of mind about their relationship, that she would go into the other room upon hearing he was there.”

       “Canon 4 of the Code of Professional Responsibility (Code) imposes on counsel the obligation to preserve the confidences and secrets of a client.” Goldemherg v. Corporate Air, Inc., 189 Conn. 504, 511,457 A.2d 296 (1983). “Every client has a right to expect that his lawyer will not disclose his secrets.” Id., 512.

       The trial court stated: “I don’t think I can unfairly sever Mr. Markle’s cross-examination by saying to him, ‘You cannot ask any question that might possibly be objected to on an attomey/client privilege,’ and all I can ask of Mr. Markle is that in his examination, to keep in mind the rulings of the Court.”

       The trial court stated: “I should advise the jury that there have been apparent objections on the grounds of attomey/client privilege which have been sustained by the Court, and the objections on the attomey/client privilege is a right that exists between an attorney and a client, and you heard some questions by Mr. Markle to which objection was properly made, and in my opinion properly sustained, the conversations were not allowed to be gone into on the ground that they are privileged communications insofar as the Exhibit 2 contains a written version of advice that the attorney gave to the defendant, which one might think is part of an attorney/client privilege as to that advice. There is a waiver of the attorney/client privilege, and that’s the reason that was allowed to be examined into.”

       As part of its charge to the jury at the close of the evidence, the court advised: “During the testimony of Mr. Watson, the attorney, the defense witness, there were several occasions when defense counsel objected to certain questions asked by Mr. Markle on the ground of attorney-client privilege, and the Court sustained some of those objections. The defendant has a right to assert the attorney-client privilege with respect to his discussions with Mr. Watson and the fact that objection was made on that ground shall not be held against the defendant in any way, [n]or should you draw any inferences unfavorable to the defendant because that objection was made.”


author: Hull, J.

text:
    Eileen C. Stroiney et al. v. Crescent Lake Tax District et al.
    (13141)
    Peters C. J., Shea, Callahan, Glass and Hull, Js.
    Argued October 6
    decision released November 17, 1987

      John A. Kissel, with whom was Joseph E. Fallon, for the appellants (plaintiffs).

      Ronald P. Sherlock, with whom were William F. McDonald, town counsel, and, on the brief, James W. Sherman, for the appellees (defendants).
   Hull, J.

The sole issue in this appeal is whether the trial court erred in dismissing the plaintiffs’ action on the ground of lack of subject matter jurisdiction because the plaintiffs lacked standing. We agree with the trial court that the defendant Crescent Lake Tax District (district) is a de facto quasi-municipal corporation whose validity may only be challenged by the state in a quo warranto proceeding, and find no error.

On April 15, 1982, a petition was submitted to the town of Enfield requesting that a meeting be held for the purpose of voting on a proposal to form a special tax district pursuant to General Statutes § 7-325. In accordance with the petition the function of the district was to construct, maintain and regulate the use of recreational facilities including the maintenance of Crescent Lake. The formation of the Crescent Lake Tax District was approved at a meeting held in accordance with the statute on May 13,1982. On January 13, 1983, the plaintiffs, thirty-two electors residing within the adopted boundaries of the district or persons owning property assessed at no less than $1000 in value within said boundaries, brought suit against the district, the officers and directors of the district, the town of Enfield and the moderator of the organization meeting. The first count claimed that certain statutory and procedural irregularities in the formation of the district rendered it illegal. It also claimed certain violations of both the state and federal constitutions. The second count mirrored the first and claimed irreparable loss with no adequate remedy at law. The third count also repeated the claim of illegality made in the first count and claimed a violation of § 1983 of Title 42 of the United States Code. The claim for relief sought a declaratory judgment, an injunction and damages. The trial court, Quinn, J., granted the plaintiffs’ motion for summary judgment, declaring that the district had been illegally formed because neither page of the petition seeking a vote on the formation of the district contained the requisite circulator’s statement required by General Statutes § 7-9.

The defendants appealed, claiming error in the trial court’s holding that the requirements of General Statutes § 7-9 apply to the formation of a tax district under General Statutes § 7-325. This court in Stroiney v. Crescent Lake Tax District, 197 Conn. 82, 86, 495 A.2d 1063 (1985), concluding that a summary judgment granting only declaratory relief, but failing to dispose of claims for an injunction and for damages, was not a final judgment, sua sponte dismissed the appeal for lack of jurisdiction. We specifically noted that “[t]he plaintiffs have not withdrawn or abandoned their claims for relief that have not yet been adjudicated.” Id., 84.

Thereafter, the defendants filed a motion to dismiss for lack of subject matter jurisdiction on the ground that the district is a de facto municipal corporation and the plaintiffs lack standing to bring the action. Although the trial court, in its memorandum of decision, did not specifically find the district to be a de facto municipal corporation, it included such a conclusion in the judgment that it rendered.

Having determined that the district was a de facto municipal corporation, the trial court concluded that its validity could be challenged only by the state in a quo warranto proceeding and not by private parties. Rothkopf v. Danbury, 156 Conn. 347, 356-58, 242 A.2d 771 (1968). The court then determined that since each of the three counts of the complaint attacks the legality of the Crescent Lake Tax District’s existence on the ground that incorporation under General Statutes § 7-324 et seq. was defective, the plaintiffs had no standing to bring this action. The court granted the motion to dismiss and this appeal followed.

Standing concerns the legal right of an individual to set the machinery of the courts in operation. Belford v. New Haven, 170 Conn. 46, 52-53, 364 A.2d 194 (1975). Standing goes to the court’s subject matter jurisdiction. Housing Authority v. Local 1161,1 Conn. App. 154,157, 468 A.2d 1251, cert. denied, 192 Conn. 802, 471 A.2d 244 (1984). A motion to dismiss for lack of subject matter jurisdiction may be made at any time. Practice Book § 145.

Certain fundamental principles underlie this dispute. If legally created, the Crescent Lake Tax District is a quasi-municipal corporation. Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 547, 427 A.2d 822 (1980); Larkin v. Bontatibus, 145 Conn. 570, 576,145 A.2d 133 (1958); 1 E. McQuillin, Municipal Corporations (3d Ed.) § 2.29. Quasi-municipal corporations are governed by the law applicable to municipal corporations. Alarm Applications Co. v. Simsbury Volunteer Fire Co., supra. A de facto municipal corporation’s existence cannot be attacked by an individual but only by the state through quo warranto proceedings. Tulare Irrigation District v. Shepard, 185 U.S. 1, 14, 22 S. Ct. 531, 46 L. Ed. 773 (1902); Rothkopf v. Danbury, supra, 357-58.

Both parties briefed the question of whether the district was a de jure quasi-municipal corporation. The court’s judgment dismissing the action was based solely on the status of the district as a de facto municipal corporation. The question of the district’s de jure status and the application of General Statutes § 7-9 to General Statutes § 7-325 was not involved in the trial court’s consideration of the motion to dismiss. Since we agree with the trial court that the district was a de facto quasi-municipal corporation we need not reach the issues determinative of the district’s de jure status and leave them for another day.

There are three requisites to constitute a de facto municipal corporation: (1) A charter or general law under which such a corporation as it purports to be might lawfully be organized; (2) an attempt in good faith to organize thereunder; and (3) an actual user of the corporate franchise. Tulare Irrigation District v. Shepard, supra, 13; Rothkopf v. Danbury, supra, 356; 1 E. McQuillin, supra, § 3.48; C. Tooke, “DeFacto Municipal Corporations Under Unconstitutional Statutes,” 37 Yale L.J. 935 (1928).

We consider this case in an unusual procedural posture. No evidentiary hearing was held by the trial court nor, so far as we can determine, was such a hearing requested by either party. The court made no factual findings. The appellants made no motion in the trial court or in this court for an articulation of the basis of the trial court’s decision. Practice Book §§ 4051, 4061.

“Ordinarily we do not ‘ “resort to matters extraneous to the formal record, to facts which have not been found and which are not admitted in the pleadings or exhibits which are not part of the record.” ’ Grunschlag v. Ethel Walker School, Inc., 189 Conn. 316, 320, 455 A.2d 1332 (1983). References in the ‘statement of facts’ in a brief or references to testimony in the transcript, even if uncontradicted, do not constitute facts in the case. Where the factual basis of the court’s decision is unclear, ‘proper utilization of the motion for articulation serves to dispel any such ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision, thereby sharpening the issues on appeal. “It remains the appellant’s responsibility to secure an adequate appellate record, and under normal circumstances we will not remand a case to correct a deficiency the appellant should have remedied.” ’ Barnes v. Barnes, 190 Conn. 491, 494, 460 A.2d 1302 (1983). ‘Since the [plaintiff] has failed to supply a record presenting the trial court’s rationale, as is his burden, we are disinclined to view as clearly erroneous the trial court’s determination .... Nor under these circumstances will we remand the decision for articulation.’ Steve Viglione Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 714, 462 A.2d 1037 (1983).” Pointina Beach Assn., Inc. v. Stella, 1 Conn. App. 341, 343, 471 A.2d 970 (1984).

Under the circumstances of this case, however, we will not uphold the trial court’s decision merely because of the plaintiffs’ failure to secure an adequate appellate record nor will we remand the decision for articulation. We will look to the plaintiffs’ factual allegations which constitute judicial admissions to determine whether there is an adequate factual basis for the court’s decision. We will not consider the factual claims of the parties which lack support in the record.

That the three requisite criteria were clearly met is shown by the paragraphs of the complaint, contained in the footnote below. “In brief, if anything can constitute a de facto corporation, the defendant herein constitutes one.” Tulare Irrigation District v. Shepard, supra, 14. Chapter 105 of the General Statutes, concerning fire, sewer and other districts, clearly satisfies the requirement of a charter or general law under which the Crescent Lake Tax District purported to be lawfully organized. The organizers attempted in good faith to organize thereunder. The plaintiffs claim that the failure of the circulators of the organizing petitions to comply with General Statutes § 7-9 shows lack of good faith. The failure to comply with § 7-9 was not raised at the organization meeting but appears to have first been brought to the attention of the defendants when the plaintiffs brought suit eight months later. The plaintiffs do not claim that, for the first eight months of its existence, the district acted in anything other than good faith. Thereafter, the defendants could in good faith continue to operate pending the final legal resolution of the plaintiffs’ challenges. This has not occurred until today. During the interim between the organization meeting and the granting of the motion for summary judgment, the fundamental steps for organization of the district had already been undertaken. The user of the corporate franchise is more than sufficiently shown by adoption of a budget, fixing of a mill rate, collection of taxes and placing of tax liens upon some of the plaintiffs’ properties, events which had occurred prior to the commencement of this action as alleged in the complaint.

“It cannot be said that this corporation was created without warrant of law. There was a valid law and there was a bona fide attempt to organize under it, and the most that can be said is that there was a failure to comply with all the directions of the statute by which a corporation de jure might be organized.” Tulare Irrigation District v. Shepard, supra, 16.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 7-325. organization, boundary changes, annual report, (a) Upon the petition of twenty or more voters, as defined by section 7-6, of any town, not residing within the territorial limits of any city or borough in such town, specifying the limits of a proposed district for any or all of the purposes set forth in section 7-326, and not including within such limits any part of any city or borough in such town, the selectmen of such town shall call a meeting of the voters residing within such specified limits to act upon such petition, which meeting shall be held at such place within such town and such hour as the selectmen designate, within thirty days after such petition has been received by such selectmen. . . .”

       The plaintiffs did not raise in their trial brief or on appeal any issue concerning their claims that the alleged illegal formation of the district violated their state and federal constitutional rights and their rights under § 1983 of Title 42 of the United States Code. We regard the plaintiffs’ failure to brief this claim as an abandonment thereof. Practice Book § 4065 (a) and (d).

       “[General Statutes] Sec. 7-9. petitions foe vote. form, statement BY circulator. Whenever under the provisions of the general statutes or any special act, any action for a vote by the electors or voters of a municipality is to be initiated by the petition of such electors or voters, in addition to such other requirements as such statute or special act may impose, such petition shall be on a form prescribed or approved by the clerk of such municipality, and each page of such petition shall contain a statement, signed under penalties of false statement, by the person who circulated the same, setting forth such circulator’s name and address, and stating that each person whose name appears on said page signed the same in person in the presence of such circulator, that the circulator either knows each such signer or that the signer satisfactorily identified himself to the circulator and that all the signatures on said page were obtained not earlier than six months prior to the filing of said petition. Any page of a petition which does not contain such a statement by the circulator shall be invalid. Any circulator who makes a false statement in the statement hereinbefore provided shall be subject to the penalty provided for false statement.”

       No transcript of the proceedings below was filed in this court.

       The paragraphs of the complaint that we rely upon as admissions by the plaintiffs are as follows:
      “6. The defendant Town, purportedly pursuant to C.G.S. Sec. 7-325, called a meeting to act upon a proposal to approve the establishment of the District.
      “7. Said meeting was held on May 13,1982, at 8:00 P.M. at the Enfield Town Hall, Council Chambers, 820 Enfield Street, Enfield, Connecticut.
      “8. At said meeting the following actions were taken or purportedly taken:

        “a. The defendant John D. Adams was elected moderator and acted as moderator during the balance of the meeting.
      “b. A main motion was made and seconded to establish a tax district within the boundaries and for the purposes set forth in the Legal Notice dated April 23, 1982, a copy of which is attached hereto as Exhibit A.
      “c. Two motions were made, seconded and voted upon by hand and/or voice vote and declared adopted by the defendant moderator to change the boundaries of said district from those contained in said Legal Notice.
      “d. A roll call vote was taken on the main motion as amended and the defendant moderator declared said motion adopted.
      “e. The defendant officers and directors were elected.
      “f. A budget was adopted.
      “g. A mill rate was set.
      “h. A request was passed that the defendant Town collect the taxes. “9. As a result of the actions taken or purportedly taken at said meeting, the defendant District purports to have the power to lay and collect taxes upon real and personal property of the plaintiffs and such other powers as are set forth in C.G.S. Sec. 7-324 et seq.
      “10. Said defendant District has adopted a budget, fixed a mill rate, and has collected taxes, and the plaintiffs are informed and believe that said District and/or its agents, servants or employees have authorized certain expenditures for the purpose of carrying out its purported purposes, and it is reasonable to be expected that further such expenditures will be authorized.
      “11. The plaintiffs have received bills for taxes from said District, and have had tax liens placed upon some of their properties for their failure to pay said taxes, and it is reasonable to expect that said District will further bill said plaintiffs for future taxes and place liens upon said properties for failure to pay said taxes, all to their loss and damage.”