text:
    State of Connecticut v. William Barrett
    (12018)
    Peters, C. J., Healey, Shea, Dannehy and Santaniello, Js.

      Argued June 4
    decision released July 30, 1985

      Robert L. Genuario, for the appellant (defendant).

      Julia D. Dewey, assistant state’s attorney, with whom, on the brief, were Arnold Maride, state’s attorney, aná. Daniel A. Lyons, Jr., assistant state’s attorney, for the appellee (state).
   Peters, C. J.

The dispositive issue on this appeal is whether the trial court erred in refusing to suppress oral statements made by the defendant during the course of custodial interrogation. The defendant, William Barrett, was convicted, after a trial to the jury, of sexual assault in the first degree, in violation of General Statutes § 53a-70 (a), unlawful restraint in the first degree, in violation of General Statutes § 53a-95 (a), and possession of less than four ounces of a cannabis-type substance, in violation of General Statutes § 19-481 (c). Upon entry of judgment, he was sentenced to a total effective term of imprisonment of nine to eighteen years. He appeals from this conviction.

The jury could reasonably have found the following facts. On the evening of October 23,1980, the victim, a young woman of twenty, was waiting for a bus on a street corner in New Haven. The defendant, William Barrett, accompanied by another man, offered her a ride in his car. Since the victim recognized the defendant as a former neighbor and high school classmate whom she had known for eight years, she accepted his offer. Instead of driving to her sister’s house as she had requested, however, the defendant drove to a secluded area in Wallingford, where the two men took turns sexually assaulting her. Upon returning to New Haven following the assault, the victim immediately contacted the police. She reported the details of the assault and identified the defendant as one of her assailants. He was taken into custody by New Haven police at approximately 11:30 p.m. that same night, and held until Wallingford police transported him to the Wallingford police station early the next morning.

During the trial, the defendant moved to suppress oral statements which he had made shortly after his arrival at the Wallingford police station on the ground that his fifth amendment right to counsel had been violated. Following a suppression hearing, the trial court denied the motion.

The defendant raises three issues on appeal. He claims that the trial court erred: (1) in denying the defendant’s motion to suppress his oral statements made to the police during custodial interrogation; (2) in denying his motion to suppress summaries of the interrogation made by two nontestifying police officers; and (3) in refusing to permit cross-examination of the complainant concerning her prior sexual activity with the defendant. We find error on the defendant’s first claim, and do not reach the other two claims.

The defendant claims that the oral statements he made to the Wallingford police should have been suppressed because he had invoked his right to counsel under the fifth and fourteenth amendments to the United States constitution. He maintains that he effectively asserted this right when he expressly refused to give the police a written statement in the absence of counsel. The defendant at trial sought unsuccessfully to have the trial court suppress the testimony of a policeman describing the substance of his oral statements.

Established principles of law govern the permissible role of police during custodial interrogations. Smith v. Illinois, 469 U.S. 91, 105 S. Ct. 490, 83 L. Ed. 2d 488 (1984); Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378, reh. denied, 452 U.S. 973, 101 S. Ct. 3128, 69 L. Ed. 2d 984 (1981); Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Once a suspect has invoked his right to counsel, all questioning must cease and may not be resumed in the absence of counsel unless the accused both initiates the discussion; Edwards v. Arizona, supra, 484-85; and knowingly and intelligently waives the right to counsel which he had previously invoked. Smith v. Illinois, supra, 493. Our resolution of the defendant’s claim, therefore, requires a two-step inquiry. We must determine: (1) whether the defendant had in fact invoked his right to counsel; and (2) if so, whether he subsequently waived it.

In taking the first step of our inquiry, we must focus on the defendant’s request for counsel itself and the circumstances leading up to this request. Smith v. Illinois, supra, 96-99. The relevant evidence was provided by two police officers who testified at the suppression hearing. Their testimony revealed that, shortly after the defendant’s arrival at the Wallingford police station, the police advised him of his Miranda rights, and asked him if he would give a statement concerning the assault. The defendant immediately replied that he would not give a written statement without his attorney present, although he was willing to answer questions orally. Without further inquiry, the police proceeded to interrogate him in the absence of counsel and to elicit an incriminating statement from him.

An hour later, having discovered the malfunctioning of a tape recorder used without the defendant’s knowledge during the first interrogation, the police conducted a second interrogation. They again advised the defendant of his Miranda rights, and he again stated that he would not give a written statement without an attorney, but would answer questions orally. At the end of this interrogation, a police officer asked the defendant if he would be willing to put the oral statement into writing, and he again refused to do so without an attorney.

The trial court, in ruling on the defendant’s motion to suppress his oral statements, impliedly found that the defendant had requested counsel. We agree. The record is clear that the defendant had requested counsel not once, but on at least three separate occasions. At no time did the police attempt to determine whether an attorney was coming or, indeed, even whether the defendant had succeeded in contacting one.

The record is also clear that the police understood this request for counsel. The two police officers who brought the defendant back to the interrogation room for the second questioning informed the detective commander that the defendant had refused to give a written statement without his attorney. Reports of the interrogations filed by three participating police officers and later introduced into evidence at the suppression hearing all note the defendant’s request to have an attorney present before he put anything into writing. In addition, the defendant made several phone calls in the presence of police. Although the police officers stated that they had no idea to whom the calls were made, one of them admitted that it was his “interpretation” that the defendant had contacted an attorney, and that the attorney was on the way to the station. If the police had been uncertain about the tenor of the defendant’s request, they had a duty to clarify his intention rather than proceed to question him. State v. Acquin, 187 Conn. 647, 672-75, 448 A.2d 163 (1982), cert. denied, 463 U.S. 1229, 103 S. Ct. 3570, 77 L. Ed. 2d 1411 (1983); see Smith v. Illinois, supra, 95-96. Instead, the record shows that the police made no attempt at clarification. They interrogated the defendant twice within a short period of time in the absence of counsel, and even actively attempted to change his mind about waiting for his attorney before he reduced his oral statements to writing.

The fact that the defendant attached his request for counsel to the making of a written statement does not affect the outcome of this first step of our inquiry. No particular form of words has ever been required to trigger an individual’s fifth amendment protections; Miranda v. Arizona, supra, 444-45; nor have requests for counsel been narrowly construed. See Smith v. Illinois, supra, 92-94; Edwards v. Arizona, supra, 479, 484-85. The defendant’s refusal to give a written statement without his attorney present was a clear request for the assistance of counsel to protect his rights in his dealings with the police. Fare v. Michael C., 442 U.S. 707, 719, 99 S. Ct. 2560, 61 L. Ed. 2d 197, reh. denied, 444 U.S. 887, 100 S. Ct. 186, 62 L. Ed. 2d 121 (1979). Such a request continues to be constitutionally effective despite the defendant’s willingness to make oral statements. We conclude, therefore, that the defendant did invoke his right to counsel under the fifth and fourteenth amendments.

Having decided that the defendant’s statement takes us past the first step of our inquiry, we now must take the second step: whether he subsequently waived the right he had invoked. Once an individual has requested counsel, the burden is on the state to establish that such a waiver has been made. Miranda v. Arizona, supra, 475; State v. Acquin, supra, 677. The state must prove that the waiver was not only voluntary, but also constituted a “knowing and intelligent relinquishment or abandonment of a known right or privilege.” Edwards v. Arizona, supra, 482. This burden cannot be met “by showing only that [an accused] responded to further police-initiated custodial interrogation, even if he has been advised of his rights-.” Id., 484; Smith v. Illinois, supra, 98.

Because the right to have counsel present during a custodial interrogation is crucial to safeguarding the fifth amendment privilege against self-incrimination; Fare v. Michael C., supra, 719; Miranda v. Arizona, supra, 469; the Supreme Court of the United States has developed a bright-line rule for establishing a waiver of this right. Once an accused has invoked his right to counsel, waiver can be established only by a dual showing: that the accused himself “(a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked.” (Emphasis added.) Smith v. Illinois, supra, 95. Under this test, there can be no waiver unless the suspect initiates the subsequent encounter with the police. Solem v. Stumes, 465 U.S. 638, 646-47, 104 S. Ct. 1338, 79 L. Ed. 2d 579 (1984). The second part of the test, the “knowing and intelligent relinquishment” analysis, is not reached absent such initiation. Smith v. Illinois, supra; Oregon v. Bradshaw, 462 U.S. 1039, 1044-45, 103 S. Ct. 2830, 77 L. Ed. 2d 405 (1983) (plurality opinion).

In the present case, the state argues and the trial court found that the defendant’s oral statements were properly admitted because, prior to the interrogation, he had freely and intelligently waived his rights both to remain silent and to have counsel present. The trial court, in denying the defense motion, concluded that the defendant had made the statements “willingly, knowingly and intelligently after an effective knowledgeable waiver of his right to counsel at this point.” In making this ruling, the trial court specifically noted that the defendant had been informed of his rights, had indicated that he understood them, had signed a standard rights form, and had willingly agreed to talk with the police. The court found that the defendant’s request for counsel before he gave a written statement was evidence that he did in fact understand his rights. His oral statements to the police, then, were held to have been willingly made after an effective waiver of his right to counsel.

The precedent relied upon most heavily by the state in support of this position is State v. Harris, 188 Conn. 574, 452 A.2d 634 (1982), cert. denied, 460 U.S. 1089, 103 S. Ct. 1785, 76 L. Ed. 2d 354 (1983). At first glance, Harris seems to govern the present case. Like the present defendant, the defendant in Harris refused to give a written statement to police without counsel but agreed to give an oral statement. That oral statement was later admitted at trial over his objection, and we upheld that ruling. However, the defendant in Harris based his claim of error solely on the ground that he had not waived his fifth amendment right to remain silent. He specifically declined to raise the issue of whether his right to counsel under the fifth amendment had also been violated. Id., 577-78 n.4. Accordingly, we did not consider the claim on that ground, basing our decision on an application of the test of waiver articulated in North Carolina v. Butler, 441 U.S. 369, 99 S. Ct. 1755, 60 L. Ed. 2d 286 (1979). The principles that governed our holding in Harris, therefore, are not applicable to the present case because, where the right to counsel is implicated, waiver is governed by the more stringent test enunciated by the United States Supreme Court in Edwards v. Arizona, supra, and Smith v. Illinois, supra.

Under this test, a finding that the accused initiated the subsequent “communications, exchanges, or conversations with the police”; Edwards v. Arizona, supra, 485; is an absolute prerequisite to a finding of waiver. Solem v. Stumes, supra. In the present case, the trial court found that the defendant had invoked his right to counsel. The state presented no evidence whatsoever to support a finding that the defendant had initiated the subsequent encounters with police which resulted in his incriminating statements. To the contrary, the evidence clearly established that the police had initiated the interrogations on both occasions. Since the defendant did not initiate the discussions, the trial court’s finding of waiver was erroneous and any statements resulting from the interrogations were not admissible against the defendant.

There is error, the judgment is set aside and a new trial is ordered.

In this opinion the other judges concurred.

       At the time in question, General Statutes § 53a-70 (a) provided: “sexual ASSAULT IN THE FIRST DEGREE: CLASS B FELONY: ONE YEAR NOT SUSPEND ABLE. (a) A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person.”
      At the time in question, General Statutes § 53a-95 (a) provided: “unlawful RESTRAINT IN THE FIRST DEGREE: CLASS D FELONY, (a) A person is guilty of unlawful restraint in the first degree when he restrains another person under circumstances which expose the latter to a substantial risk of physical injury.”
      At the time in question, General Statutes § 19-481 (c) provided: “penalty FOR ILLEGAL POSSESSION. SUBSTITUTION OF MEDICAL TREATMENT FOR criminal sanctions. . . .(c) Any person who possesses or has under his control any quantity of any controlled substance other than a narcotic substance, or a hallucinogenic substance other than marihuana or who possesses or has under his control less than four ounces of a cannabis-type substance, except as authorized by this chapter, may be fined not more than one thousand dollars, or be imprisoned not more than one year, or be both fined and imprisoned; and for a subsequent offense may be imprisoned not more than five years, or fined not more than three thousand dollars or be both fined and imprisoned.”
      General Statutes § 19-481 (c) was transferred to § 21a-279 (c) in 1983.

       We do not reach the defendant’s second claim because our decision today that the defendant’s oral statements are inadmissible for constitutional reasons necessarily makes inadmissible the police summaries of the same statements. We thus have no reason to decide whether they would be inadmissible on independent grounds.
      We do not reach the defendant’s third claim because, although it presents a question of some significance, it is unclear from the record that the issue was raised properly below. The transcript reflects confusion over which question was before the trial court, and no exception to the court’s ruling was entered by the defendant as required by Practice Book § 288. Consequently, since this issue was not “distinctly raised at the trial”; Practice Book § 3063; we decline to consider it on appeal.

       The defendant did not bring this claim under article first, § 8, of the Connecticut constitution, nor did he cite any Connecticut cases in support of his position. Consequently, we do not consider any Connecticut constitutional claim in this case.

        Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), holds that “when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege, and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.”

       During the trial, subsequent to the suppression hearing, a police officer testified that the police had also asked the defendant if he would reduce his oral statement to writing at the end of the first interrogation, and that the defendant had made the same response: that he would put nothing into writing without his attorney.

       The trial court noted the defendant’s refusal to give a written statement without an attorney during its discussion of the defendant’s waiver of his rights.

       It is unclear from the transcript at precisely what point the phone calls were made. They were definitely made prior to the second interrogation, and a fair reading of the transcript would support a finding that they were made prior to the first interrogation.

       In Smith v. Illinois, 469 U.S. 91, 95-96, 105 S. Ct. 490, 83 L. Ed. 2d 488 (1984), the United States Supreme Court declined to decide the appropriate procedure to be followed once an ambiguous or equivocal request for counsel has been made. Instead, it referred without comment to different approaches adopted by various jurisdictions, including the approach adopted by this court in State v. Acquin, 187 Conn. 647, 672-75, 448 A.2d 163 (1982), cert. denied, 463 U.S. 1229, 103 S. Ct. 3570, 77 L. Ed. 2d 1411 (1983). Smith v. Illinois, supra, 96 n.3.

       The police were also aware that the defendant had never been arrested before and was unfamiliar with police procedure.


source: Caselaw Access Project

author: Dannehy, J.

license: Public Domain

text:
    State of Connecticut v. Martin Frank Ziel
    (10780)
    Peters, C. J., Healey, Shea, Dannehy and Callahan, Js.

      Argued June 6
    decision released July 30, 1985

      Brenda J. Hochberg, legal intern, with whom were Jon C. Blue, assistant public defender, and, on the brief, Joette Katz, public defender, for the appellant (defendant).

      Julia D. Dewey, assistant state’s attorney, with whom, on the brief, were ArnoldMarkle, state’s attorney, and David Martland, legal intern, for the appellee (state).
   Dannehy, J.

The defendant was indicted for murder in violation of General Statutes § 53a-54a. Following a trial by jury, he was found guilty as charged and sentenced to a term of imprisonment of twenty-five years to life. The defendant presents one issue for our resolution: Did the trial court err in denying the defendant’s motions to excuse a jury panel when it was discovered that several of the prospective jurors, while waiting for voir dire in a jury room and within the hearing of other members of the panel, had stated their opinions that the defendant was guilty? We find no error and affirm the conviction.

The facts of this case may be quickly summarized. In May, 1980, the defendant was searching for a house to purchase for himself and his family. The victim, Jack Abrams, was selling a house located at 595 Williams Road in Wallingford. Although the defendant was unemployed, he made arrangements to buy Abrams’ house, indicating that the purchase price would be obtained from a rich uncle. In anticipation of the sale, Abrams allowed the defendant and his family to move into the unoccupied upper floor of the Williams Road house on May 12, 1980.

The following evening the defendant and Abrams left the Williams Road house together, purportedly going to the home of the defendant’s uncle to obtain the purchase money for the house. The defendant took a handgun with him.

The next day Abrams failed to attend a conference at which his presence was required. His body was eventually discovered on July 2, 1980. Abrams had died from gunshot wounds to the head.

At the trial, the state introduced evidence linking the defendant to Abrams’ death. A forensic expert testified that the bullets removed from the victim’s head had been fired from the defendant’s gun. Stains matching the victim’s blood type were found in the defendant’s car. Also found in the defendant’s car were hair samples matching Abrams’ hair and slivers of glass identified by Abrams’ optician as fragments of glasses he had prescribed for Abrams. Soil samples taken from a shovel found in the defendant’s car matched soil from the site where the body was found. The defendant himself admitted that he had been at the scene of the crime but he denied any involvement in the murder.

The following is the sequence of events which led to this appeal. During the voir dire examination of one prospective juror, it was disclosed that a panel of potential jurors had possibly been affected by a conversation which occurred during the voir dire proceedings. The juror testified that he had heard about the defendant’s case from media reports and he admitted that he had discussed those reports with other prospective jurors while waiting in a jury room to be called for his examination. He did not recall that anyone expressed an opinion as to the guilt or innocence of the defendant. The defendant then moved that the entire jury panel be dismissed. The trial court, Zoarski, J., denied the motion, ruling that “we will have to take each individual juror on the merits of their [sic] responses on the voir dire.” The juror was dismissed for cause because his responses, upon further inquiry, indicated that he would be unable to set aside his opinion that the defendant was “probably guilty.”

The defendant renewed his motion to excuse the entire panel of jurors when the next juror revealed that “several jurors” had expressed their opinions that the defendant was guilty. The trial court again denied the motion stating that it would have the remaining jurors brought in the next morning to “try to establish if any of them based on any discussions that have taken place and . . . as a result of any overheard discussions, have drawn any conclusions which would in any way affect their ability to sit on this jury. I can do that and I will determine whether anybody based on what they may have overheard should be excused.”

The next day, the trial court summoned the entire panel of jurors into the courtroom and instructed them collectively not to discuss the case at all in the jury room. It also admonished them to avoid forming any opinions until after the case had been submitted to them.

Individual interrogation of the panel members then continued. Eight jurors were dismissed for cause by the trial court, some for reasons unrelated to the discussions in the jury room. The defendant exercised three of his peremptory challenges in excusing jurors from this panel; the state exercised two peremptory challenges. Consequently, only two members of the possibly tainted panel were chosen as jurors for the defendant’s trial.

“[T]he right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717, 722, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961). Qualified jurors need not be totally ignorant of the facts and issues involved. Murphy v. Florida, 421 U.S. 794, 799-800, 95 S. Ct. 2031, 44 L. Ed. 2d 589 (1975). “To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.” (Citations omitted.) Irvin v. Dowd, supra, 723. The relevant question is whether the two jurors at issue “had such fixed opinions that they could not judge impartially the guilt of the defendant.” Patton v. Yount, 467 U.S. 1025, 1035, 104 S. Ct. 2885, 81 L. Ed. 2d 847 (1984).

The defendant contends that the unauthorized discussions regarding his guilt which took place among the prospective jurors so tainted the members of the panel that bias should be implied despite the absence of any showing of actual bias. We disagree.

This court has repeatedly stated that it “does not choose to create a set of unreasonably constricting presumptions that jurors be excused for cause . . . where . . . there is no showing of actual bias or prejudice.” (Citations omitted.) State v. Clark, 164 Conn. 224, 228, 319 A.2d 398 (1973). Rather, this court adheres to the principle that “[t]o succeed on a claim of bias the defendant must raise his contention of bias from the realm of speculation to the realm of fact.” State v. Almeda, 189 Conn. 303, 313, 455 A.2d 1326 (1983); State v. Bowen, 167 Conn. 526, 532, 356 A.2d 162 (1975). The trial court, when empaneling a jury, has a serious duty to determine the question of actual bias and a broad discretion in its rulings. State v. Clark, supra, 228. “ ‘[A] ruling of the trial judge in the course of a voir dire examination is held to be reversible error only when the judge has clearly abused his discretion or harmful prejudice appears to have resulted.’ ” State v. Marra, 195 Conn. 421, 432, 489 A.2d 350 (1985), quoting State v. Anthony, 172 Conn. 172, 175, 374 A.2d 156 (1976).

Only two jurors are at issue. During voir dire examination, the first juror testified that he had heard some conversations concerning the reports of the defendant’s case in the jury room but that he had not participated in those discussions nor had he personally formed any opinion as to the guilt or innocence of the defendant. Although he had heard two or three people state that, in their opinion, the defendant was “probably guilty,” he maintained that he would have to hear the evidence before forming an opinion. At the end of the examination, the defendant indicated that he wished to challenge the juror for cause “on the basis of the discussions and the opinions that he has heard of the probability of guilt of the defendant.” The trial court denied the motion and the defendant accepted the juror.

The second juror stated during her voir dire examination that she had overheard some conversations pertaining to the guilt of the defendant but that she did not think anyone had seriously formed an opinion but, rather, that “[t]hey were just fooling around.” She stated several times that she had formed no opinion as to the defendant’s guilt. The defendant challenged the juror for cause, restating his previous position. The trial court denied the motion and the juror was accepted.

The thorough voir dire examinations of these two jurors clearly indicated a lack of partiality. “Where a juror has a settled opinion in the case, and has declared it, he ought not to sit. But where it is a mere impression, arising from facts supposed to exist, of the truth of which he has formed no opinion . . . there can be no ground to infer hostility or prejudice, and so the juror must be considered indifferent.” State v. Potter, 18 Conn. 166, 174-75 (1846).

Although it would have been proper, and perhaps more efficient, to excuse the entire panel, “it was not unreasonable for the trial court to assume that the voir dire examination would disclose any prejudice upon the part of a prospective juror.” State v. Vitale, 190 Conn. 219, 229, 460 A.2d 961 (1983); see also State v. Marra, supra, 431. It is true that some of the prospective jurors stated on their examination on the voir dire that they had discussed the case and had come to the opinion that the defendant was “probably guilty.” These jurors were dismissed for cause by the trial court. The two jurors at issue repeatedly stated under oath that they had formed no opinion as to the guilt or innocence of the defendant and that they would decide the case only on the evidence presented and according to the instructions given by the trial court.

“[D]ue process does not require a new trial every time a juror has been placed in a potentially compromising situation .... Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen.” Smith v. Phillips, 455 U.S. 209, 217, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982).

The record nowhere reflects that the exposure to the discussions held in the jury room affected either of the two jurors in such a way as to prevent their judging the defendant fairly and impartially. Each was individually interrogated and carefully admonished. This being so, we cannot conclude that the trial court’s denial of the defendant’s motions to dismiss the entire jury panel, “in light of the assurances of impartiality” unequivocally given by each of these two jurors during their voir dire examinations, deprived the defendant of a fair trial. State v. Marra, supra, 434.

There is no error.

In this opinion the other judges concurred.

       It was conceded at oral argument that the defendant ultimately exhausted all of his peremptory challenges and thus he is entitled to pursue his claim that his challenges for cause were erroneously denied. See State v. Vitale, 190 Conn. 219, 224-25, 460 A.2d 961 (1983); State v. Smith, 49 Conn. 376, 379 (1881).

       “The sixth amendment to the United States constitution provides, inter alia: ‘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 . . . . ’ This guarantee has been made applicable to the states by incorporation into the fourteenth amendment. See Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491, [reh. denied, 392 U.S. 947, 88 S. Ct. 2270, 20 L. Ed. 2d 1412] (1968).
      “The constitution of Connecticut, article first, § 8, provides in pertinent part: ‘In all criminal prosecutions, the accused shall have a right ... to a speedy, public trial by an impartial jury.’ ” State v. Washington, 182 Conn. 419, 425 n.5, 438 A.2d 1144 (1980).


author: Santaniello, J.

text:
    State of Connecticut v. Robert W. Thompson
    (12107)
    Peters, C. J., Healey, Dannehy, Santaniello and Callahan, Js.

      Argued April 11
    decision released July 30, 1985

      Edward T. Lynch, Jr., with whom, on the brief, was Michael Miles, for the appellant (defendant).

      William Domnarski, deputy assistant state’s attorney, with whom, on the brief, were Herbert Carlson
      and Carl Schuman, assistant state’s attorneys, for the appellee (state).
   Santaniello, J.

The defendant, Robert W. Thompson, was convicted by a jury of three narcotics-related offenses. The substitute information charged him in count one with possession of cocaine in violation of General Statutes § 19-481 (a), in count two with possession of cocaine with intent to sell in violation of General Statutes § 19-480 (a), and in count three with possession and transportation of one ounce or more of cocaine with intent to sell in violation of § 19-480a (a). The trial court granted the defendant’s motion to set aside the verdict on count one but denied the motion as to the second and third counts. The defendant was then sentenced to confinement for a period of three years on count two and for five years on count three, to be served concurrently. On appeal, the defendant contends that: (1) he has been sentenced twice for the same offense in violation of his constitutional right not to be placed in double jeopardy; (2) there was insufficient evidence to support the jury’s verdict on count three; and (3) the trial court erred in not excepting him from the mandatory minimum sentence of five years under General Statutes § 19-480a (a). We find no error.

The jury could reasonably have found the following facts: In March, 1981, John Gervasoni, a police informant, introduced the defendant to Officer Angelo Tosi, an undercover police officer working with the state police narcotics task force. Gervasoni told Tosi that the defendant had access to cocaine from South America. In July, 1981, Tosi approached the defendant about the possible purchase of large quantities of narcotics from South America. The defendant told Tosi that he knew a man named Escobar who smuggled cocaine into this country for resale. The defendant agreed that he would contact Tosi if Escobar returned to Connecticut. Sometime in early August, 1981, the defendant contacted Gervasoni to tell him that Escobar was in Connecticut and had “something.” They then arranged to meet.

On August 13, the defendant, Tosi, Gervasoni and a friend of the defendant, Norton Johnston, met at Johnston’s home in Southington. At the meeting the defendant explained that Escobar had brought cocaine with him from South America. He produced a plastic container holding a number of small packets that were filled with a white, powdery substance later identified as nearly pure cocaine. The group then tested the cocaine and discussed its quality. Tosi requested some of the cocaine and the defendant gave him four small packets, weighing together approximately .46 ounces, from the container. Tosi offered to pay for the packets but the defendant said that no money was needed at the time and that payment could be made when the rest of the cocaine in the container was sold.

On August 18, 1981, the defendant, Escobar, Tosi and another undercover officer, Detective Jeffrey Emons, met at the defendant’s home in Southington to exchange the remainder of the cocaine in the container. The four discussed the details of the transaction and resolved questions as to the weight of the cocaine, the previous sale on August 13 and the price. When the officers went to their car purportedly to get the money for the sale, the defendant was arrested. The cocaine seized weighed approximately three ounces and was later identified as the same cocaine that had been displayed at the August 13 meeting.

I

The defendant first claims that the trial court erred in denying his motion to set aside the verdict on the second count of the information on the ground that possession of cocaine with intent to sell, a violation of General Statutes § 19-480 (a), is a lesser included offense of possession of an ounce or more of cocaine with intent to sell, a violation of General Statutes § 19-480a (a). He argues that conviction and sentencing on both counts two and three violated his constitutional right not to be placed twice in jeopardy for the same offense.

The double jeopardy clause of the fifth amendment prohibits not only multiple trials for the same offense, but also multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977); State v. Devino, 195 Conn. 70, 73, 485 A.2d 1302 (1985); State v. Frazier, 194 Conn. 233, 237-38, 478 A.2d 1013 (1984). “In Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), the Supreme Court established the test later adopted by this court to determine whether double jeopardy attaches: ‘[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.’ Blockburger v. United States, supra, 304; see State v. Goldson, [178 Conn. 422, 423-24, 423 A.2d 114 (1979)]. An analysis of the Blockburger test involves a threshold determination of whether the offenses arose out of the ‘same act or transaction,’ and a substantive analysis of whether they contain distinct elements. State v. Goldson, supra, 424.” State v. Frazier, supra, 238; see State v. Devino, supra, 74-75.

Thus, in order for this court to find that the defendant’s right to be free from double jeopardy has been violated, we must first determine if the offenses charged in counts two and three arose out of the same act or transaction. The defendant argues that the sale of cocaine on August 13, which was the basis of count two, and the sale on August 18, which was the basis of count three, were in reality one transaction merely temporally divided. We disagree.

While prosecutors cannot avoid the limitations of the double jeopardy clause “by the simple expedient of dividing a single crime into a series of temporal or spatial units”; Brown v. Ohio, supra, 169, quoted in State v. Goldson, supra, 425; in order for two separate drug sales to be considered one transaction, some temporal continuity or other close connection between the sales must be present. Blockburger v. United States, supra, 302. In Blockburger, for instance, narcotics sales between the same parties on successive days were considered separate transactions. Id., 301-302; see also People v. Edmonds, 93 Mich. App. 129, 134, 285 N.W.2d 802 (1979) (separate purchases on same day constituted separate transactions). In the present case, five days lapsed between the August 13 and August 18 transactions. Although payment for the August 13 sale was postponed until August 18, the record indicates that the parties did not firmly commit on August 13 to meet five days later for a second installment. In short, there was no temporal continuity or clear connection between the two sales.

The defendant mistakenly relies on State v. Goldson, supra, to support his contention that the events which transpired constituted only one transaction. In Goldson, the defendant was charged with and convicted of the separate crimes of possession of narcotics and transportation of narcotics, even though the possession and transportation occurred at the exact same time. In overturning the defendant’s conviction of possession we found that transportation of narcotics necessarily involves possession and that, under those circumstances, these acts were really just different aspects of the same criminal conduct. We therefore held that the “two” crimes arose out of the same transaction for double jeopardy purposes. State v. Goldson, supra, 424-25. Here, where there were two sales five days apart, we cannot say that each transfer was but part of a single instance of criminal conduct. The transfers constituted separate punishable acts under General Statutes §§ 19-480 (a) and 19-480a (a).

II

The defendant next claims that there was insufficient evidence to support the jury’s verdict finding him guilty of possession and transportation of cocaine in excess of one ounce with intent to sell.

“In reviewing a sufficiency of evidence claim on appeal the question presented is whether, viewing the evidence favorably to sustaining the verdict, the trier could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt.” State v. Zayas, 195 Conn. 611, 620, 490 A.2d 68 (1985); State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984). Where a person may have been convicted under more than one statutory alternative, the judgment cannot be sustained unless the evidence was sufficient to establish that the defendant was guilty under each statutory provision upon which the jury could have relied. State v. Marino, 190 Conn. 639, 650-51, 462 A.2d 1021 (1983).

There was sufficient evidence from which the jury could have reasonably found that the defendant both transported and possessed one ounce or more of cocaine with intent to sell. First, the defendant “possessed” the cocaine exchanged on August 18. He clearly exercised dominion and control over the cocaine both before and during the August 18 meeting. See State v. Corvo, 172 Conn. 414, 415, 374 A.2d 1050 (1977); State v. Harris, 159 Conn. 521, 531, 271 A.2d 74 (1970), cert. denied, 400 U.S. 1019, 91 S. Ct. 578, 27 L. Ed. 2d 630 (1971). Second, there was uncontradicted testimony that the defendant transported the cocaine. Johnston testified that the defendant came and took the cocaine out of Johnston’s home and brought it to his own home in Southington for the August 18 meeting. As for the defendant’s specific intent in possessing and transporting the cocaine, there was overwhelming evidence that the defendant both possessed and transported with intent to sell: he made arrangements for the August 18 meeting, spoke of consummating a sale, tested the drugs for purity and negotiated for the price. Under the circumstances, we find that there was sufficient evidence to support the jury’s verdict on count three of the information.

Ill

The defendant’s third claim is that the trial court erred in not excepting him from the mandatory minimum sentence of five years under General Statutes § 19-480a (a). The statute permits the trial court to except a defendant from the minimum sentence where at the time of the crime his “mental capacity was significantly impaired but not so impaired as to constitute a defense to prosecution.” General Statutes § 19-480a (a). The trial court held a sentencing hearing on the matter and concluded that the defendant had not established that his mental capacity was significantly impaired at the time of the August 18 transaction. The defendant argues that the sentencing procedures contained in § 19-480a (a) violate his right to due process, that his sentencing under the statute constituted cruel and unusual punishment, and that the trial court abused its discretion in failing to apply the exception to the mandatory sentence.

A

The defendant first argues that the exception to the mandatory minimum sentence is so vague and deficient in procedural safeguards as to constitute a denial of due process of law. Specifically, he claims that the sentencing hearing did not adequately afford him “full due process,” and that the statute is unconstitutionally vague in that it fails to set out the burden of proof on the issue of mental capacity.

In assessing the defendant’s due process claims, we note at the outset that the challenge of a statute on constitutional grounds always imposes a difficult burden on the challenger. “We have consistently held that every statute is presumed to be constitutional and have required invalidity to be established beyond a reasonable doubt.” Peck v. Jacquemin, 196 Conn. 53, 64, 491 A.2d 1043 (1985), citing Eielson v. Parker, 179 Conn. 552, 557, 427 A.2d 814 (1980).

The defendant asserts that he was denied “full due process” at the sentencing hearing but does not specify exactly how the procedures were defective. Although a criminal defendant is entitled to due process of law at sentencing; Gardner v. Florida, 430 U.S. 349, 358, 97 S. Ct. 1197, 51 L. Ed. 2d 393 (1977); the range of due process rights in sentencing procedures is not as extensive as that at trial. Williams v. New York, 337 U.S. 241, 246-47, 69 S. Ct. 1079, 93 L. Ed. 1337, reh. denied, 337 U.S. 961, 69 S. Ct. 1529, 93 L. Ed. 1760 (1949); United States v. Adams, 694 F.2d 200, 202-203 (9th Cir. 1982). We recognize that a defendant is entitled to counsel at sentencing hearings and may not be sentenced on the basis of improper factors or erroneous information. See United States v. Lemon, 723 F.2d 922, 933 (D.C. Cir. 1983); Consiglio v. Warden, 153 Conn. 673, 676, 220 A.2d 269 (1966). But the due process clauses of the state and federal constitutions do not in all circumstances require a judge to hold hearings and give a convicted person an opportunity to participate in those hearings when determining the sentence to be imposed. Specht v. Patterson, 386 U.S. 605, 606-607, 87 S. Ct. 1209, 18 L. Ed. 2d 326 (1967); Williams v. New York, supra. In the case at hand, the defendant received a full sentencing hearing, was allowed to introduce relevant evidence on his mental capacity and was allowed the opportunity to examine witnesses. The defendant received the process that was due him under the state and federal constitutions. We conclude that the defendant has failed to show that the sentencing procedure used by the court below was constitutionally deficient.

The defendant also claims that his right to due process was violated because the sentencing exception to General Statutes § 19-480a (a) is vague and standard-less. Under the due process clause, a criminal statute is considered void for vagueness when the law does not give a person of ordinary intelligence a “reasonable opportunity to know what is prohibited,” and when the law “impermissibly delegates basic policy matter to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” Grayned v. Rockford, 408 U.S. 104, 108-109, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972); see State v. Tyson, 195 Conn. 326, 332-33, 487 A.2d 1091 (1985). Vague sentencing provisions may pose constitutional questions if they do not state with sufficient clarity the consequences of violating a given criminal statute. United States v. Batchelder, 442 U.S. 114, 123, 99 S. Ct. 2198, 60 L. Ed. 2d 755 (1979). In considering whether a statute is unconstitutionally vague, however, “well established judicial interpretation of its provisions may be regarded, as clarifying the statute and may effectively remove uncertainties which the statutory language may have created.” State v. Tyson, supra, 332; see Hamling v. United States, 418 U.S. 87, 113, 94 S. Ct. 2887, 41 L. Ed. 2d 590 (1974).

The defendant claims that the statute is vague because it does not sufficiently set out the burden of proof on the issue of the impairment of mental capacity. We do not agree. The defendant was put on sufficient notice that it would be his burden to present evidence on the impairment of his mental capacity. The sentencing judge assigned the burden of proof to the defendant not arbitrarily, but as a matter of law. “It is generally recognized that the state bears no initial burden of proof on matters personal to the defendant and peculiarly within his own knowledge. See 153 A.L.R. 1218, 1251-54; 29 Am. Jur. 2d, Evidence §§ 153,154.” State v. Januszewski, 182 Conn. 142, 167, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981). General Statutes § 19-474 explicitly places on the defendant the burden to prove the existence of any “exception, excuse, proviso or exemption” contained in the provisions of § 19-480a (a). The question presented here is very similar to the one decided in State v. Januszewski, supra, where we held that under § 19-480a (b) the defendant had the burden to introduce evidence as to his dependency on drugs. Section 19-480a (a) is therefore not impermissibly vague.

B

The defendant next argues that the sentence he received under General Statutes § 19-480a (a) constitutes cruel and unusual punishment in violation of the eighth amendment to the United States constitution. Again, however, the defendant has failed to sustain his burden of showing that the statute is unconstitutional.

The federal constitutional prohibition against cruel and unusual punishment proscribes not only physically barbarous punishments but also penalties that are grossly disproportionate to the offense. Hutto v. Finney, 437 U.S. 678, 685, 98 S. Ct. 2565, 57 L. Ed. 2d 522 (1978). The defendant argues that the § 19-480a (a) mandatory minimum sentence imposed on him was excessive in that it did not take into account his individual circumstances. Reviewing the record as a whole, we cannot say that the sentence received by the defendant was grossly disproportionate to the crime committed. See State v. Darden, 171 Conn. 677, 680, 372 A.2d 99 (1976). The sentencing judge heard evidence on the defendant’s mental capacity and considered the fact that this was the defendant’s first offense. Although that judge still imposed the mandatory minimum sentence of five years for violation of § 19-480a (a), he did sentence the defendant to the minimum and allowed him to serve that sentence concurrently with the sentence of three years received for violation of General Statutes § 19-480 (a).

C

Finally, the defendant claims that the trial court abused its discretion in failing to apply the exception to the mandatory minimum sentence under General Statutes § 19-480a (a). Specifically, the defendant argues that the court incorrectly allocated the burden of proof, applied an incorrect standard of proof and, on the basis of the evidence presented, should have excepted the defendant from the minimum sentence.

On the issue of the burden of proof, we have already decided that the initial burden of proof was on the defendant to show that his mental capacity was significantly impaired at the time of the transaction. See State v. Januszewski, supra. Thus, the trial court correctly allocated the burden of proof to the defendant.

On the issue of the standard of proof, we cannot extract from the record the standard the trial court applied. Because it was the defendant’s duty to perfect the record for appeal by moving for an articulation under Practice Book § 3082, we cannot review the defendant’s claimed error concerning the exercise of the trial court’s discretion on this matter. See Kaplan v. Kaplan, 186 Conn. 387, 388 n.1, 441 A.2d 629 (1982). We have stated many times that a claim of error cannot be predicated on an assumption that the trial court acted incorrectly. See Barra v. Ridgefield Card & Gift Gallery, Ltd., 194 Conn. 400, 407-408, 480 A.2d 552 (1984); State v. Nash, 149 Conn. 655, 659, 183 A.2d 275 (1962).

Reviewing the record as a whole, we cannot say that the trial court abused its discretion in finding that the defendant’s mental capacity at the time of the August 18 transaction was not significantly impaired. “ ‘[S]ound discretion has long meant a discretion that is not exercised arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law, and directed by the reason and conscience of the judge to a just result. . . .’ (Citation omitted.)” State v. Williams, 195 Conn. 1, 8, 485 A.2d 570 (1985). The court listened to a tape recording of the August 18 meeting and was able to judge first-hand the defendant’s lucidity at the time. The court weighed the conflicting testimony on the defendant’s addiction to cocaine and had sufficient evidence on which to conclude that on August 18 the defendant was not significantly mentally impaired. The trial court’s discretion was not exercised arbitrarily.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 19-481 (a) at the time of the alleged offense provided: “Any person who possesses or has under his control any quantity of any narcotic substance, except as authorized in this chapter, for a first offense, may be imprisoned not more than seven years or be fined not more than three thousand dollars, or be both fined and imprisoned . . . .”
      Section 19-481 (a) was transferred to § 21a-279 (a) in 1983.

       General Statutes § 19-480 (a) at the time of the alleged offense provided: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance, other than marihuana, or a narcotic substance except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than three thousand dollars or be both fined and imprisoned and for each subsequent offense, shall be imprisoned not more than thirty years and may be fined not more than five thousand dollars, or be both fined and imprisoned.”
      Section 19-480 (a) was transferred to § 21a-277 (a) in 1983.

       General Statutes § 19-480a (a) at the time of the alleged offense provided: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person one or more preparations, compounds, mixtures or substances containing an aggregate weight of one ounce or more of a heroin, methadone or cocaine or a substance containing five milligrams or more of lysergic acid diethylamide, except as authorized in this chapter, and who is not, at the time of such action, a drug-dependent person, shall be imprisoned for a minimum term of not less than five years nor more than twenty years; and, a maximum term of life imprisonment. The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years or, (2) such person’s mental capacity was significantly impaired but not so impaired as to constitute a defense to prosecution.”
      Section 19-480a (a) was transferred to § 21a-278 (a) in 1983.

       In State v. Duhan, 194 Conn. 347, 354, 481 A.2d 48 (1984), we held that a finding of guilt can be sustained where there is sufficient evidence to uphold any one of the alternatives charged conjunctively if the defendant fails “to alert the trial court to its duty to consider whether it might be submitting to the jury a charge on which there was insufficient evidence.” Because we find that the evidence was sufficient to sustain both statutory alternatives of “transportation” and “possession” under General Statutes § 19-480a (a), we do not reach the procedural issue raised by Duhan.

       The defendant also argues in his brief that he could not have had the requisite intent to sell because he was not a “principal, proprietor, agent, servant or employee” under General Statutes § 19-443 (50) and (3) (transferred respectively to § 21a-240 [50] and [3] in 1983). This argument is without merit. The record indicates that the defendant clearly was a principal in the August 18 sale of narcotics. It was he who transported the cocaine to his home, arranged the meeting and offered the narcotics to Officer Tosi.

       We assume that the defendant makes his due process claims under both the state and federal constitutions. “The due process clauses of the United States constitution, § 1, of the fourteenth amendment, and of the Connecticut constitution, article first, § 8, can be treated together because they ‘generally have the same meaning and impose similar constitutional limitations.’ Keogh v. Bridgeport, 187 Conn. 53, 60, 444 A.2d 225 (1982); McKinney v. Coventry, 176 Conn. 613, 616, 410 A.2d 453 (1979).” Gunther v. Dubno, 195 Conn. 284, 297 n.13, 487 A.2d 1080 (1985). The defendant proffers no argument for enhanced state constitutional protection and, on the facts of this case, we see no reason independently to perform such an analysis.

       The defendant in his brief also made two other due process claims. First, he claimed that due process required the sentencing judge to make more adequate findings of fact on mental capacity. The defendant could have filed a motion for articulation under Practice Book § 3082. Because of his failure to file such a motion, he cannot now be heard to complain. See Kaplan v. Kaplan, 186 Conn. 387, 388 n.1, 441 A.2d 629 (1982); Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 222 n.5, 435 A.2d 24 (1980).
      Second, he claimed that General Statutes § 19-480a (a) is unconstitutionally vague in that it did not set out the standard of proof the defendant was required to meet in showing significant impairment of mental capacity. The issue of the standard of proof, however, was never raised below and the sentencing judge was never given the opportunity to address the defendant’s claim. We cannot even tell from the record what standard of proof the sentencing judge applied. We have said many times: “Only in most exceptional circumstances can and wdll this court consider a claim, constitutional or otherwise, that has not been raised and decided in the trial court.” State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973); Tucker v. Alleyne, 195 Conn. 399, 402 n.3, 488 A.2d 452 (1985). The defendant has raised no exceptional circumstances to warrant departure from this general rule and the record does not adequately support a claim that the defendant has clearly been deprived of a fundamental right or a fair trial. Thus, we do not review this claim.

       The defendant mistakenly relies on Specht v. Patterson, 386 U.S. 605, 87 S. Ct. 1209, 18 L. Ed. 2d 326 (1967). In Specht, the United States Supreme Court overturned a conviction on the grounds that the defendant’s due process rights were violated by the state sentencing proceedings. The defendant in that case was denied the right to participate in a special hearing held after his primary conviction. New findings of fact were made by the court at that hearing and, on the basis of those findings, the defendant was subjected to greater punishment than the previous conviction alone would have sustained. In contrast, the defendant in this case (1) was allowed to participate fully in the post trial hearing, and (2) could not have been subjected to increased punishment as a result of the post trial hearing.

       General Statutes 5 19-474 was transferred to § 21a-269 in 1983.


author: Shea, J.

text:
    Eileen C. Stroiney et al. v. Crescent Lake Tax District et al.
    (12580)
    Healey, Shea, Dannehy, Santaniello and Callahan, Js.
    Argued June 13
    decision released July 30, 1985

      James W. Sherman, with whom was William F. McDonald, for the appellants (defendants).

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

On April 15,1982, petition forms were submitted to the town manager for 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. Thereafter, as required by statute, a notice of a meeting to be held on May 13,1982, was published. The formation of the Crescent Lake Tax District in the town of Enfield was approved at that meeting.

The plaintiffs, thirty-two electors residing in the town of Enfield, brought this action seeking declaratory and injunctive relief as well as damages for the allegedly illegal formation of the tax district, claiming that the circulator of the petitions failed to comply with the provisions of General Statutes § 7-9. The trial court, Quinn, J., rendered summary judgment for the plaintiffs, declaring the tax district to have been illegally formed. The defendants appealed, claiming that the trial court erred in its holding that the requirements of General Statutes § 7-9 apply to the formation of a special tax district under General Statutes § 7-325. Because we conclude that a summary judgment granting only declaratory relief, but failing to dispose of claims for an injunction and for damages, is not a final judgment, the appeal is dismissed.

At oral argument, both parties expressed a desire to have the summary judgment order regarded as appeal-able. Agreement by the parties, however, cannot confer appellate jurisdiction on this court. State v. Curcio, 191 Conn. 27, 30, 463 A.2d 566 (1983); Gores v. Rosenthal, 148 Conn. 218, 221, 169 A.2d 639 (1961). The right of appeal is ordinarily limited to parties aggrieved by final judgments. General Statutes §§ 51-197a, 52-263; Practice Book § 3000; State v. Audet, 170 Conn. 337, 342, 36 A.2d 1062 (1976). Therefore, before considering the merits, we must determine whether the appeal has been taken from a final judgment. In re Juvenile Appeal (82-AB), 188 Conn. 557, 559, 452 A.2d 113 (1982); E. J. Hansen Elevator, Inc. v. Stoll, 167 Conn. 623, 624, 356 A.2d 893 (1975); Prevedini v. Mobil Oil Corporation, 164 Conn. 287, 291, 320 A.2d 797 (1973).

The record indicates no reason for the failure to complete the proceedings in the trial court by resolving the claims for injunctive relief and for damages. The trial court may well have assumed that a further hearing would take place, analogous to a hearing in damages after rendition of a summary judgment determining liability in an action for damages. See Practice Book § 385. The plaintiffs have not withdrawn or abandoned their claims for relief that have not yet been adjudicated. The situation, therefore, is similar to where a judgment has been rendered only upon the issue of liability without an award of damages. Such a judgment, being interlocutory in character, is not a final judgment from which an appeal lies. Pinnix v. LaMorte, 182 Conn. 342, 343, 438 A.2d 102 (1980); Palmer v. Hartford National Bank & Trust Co., 157 Conn. 597, 253 A.2d 28 (1968); New Haven Redevelopment Agency v. Research Associates, Inc., 153 Conn. 118, 120, 214 A.2d 375 (1965).

Such an interlocutory judgment does not fall within one of the narrowly defined exceptions to the general prohibition against appeals from judgments that are not final. “An otherwise interlocutory order is appeal-able in two circumstances: (1) where the order or action terminates a separate and distinct proceeding or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” State v. Curcio, supra, 31; Daginella v. Foremost Ins. Co., 197 Conn. 26, 30, 495 A.2d 709 (1985). The first alternative, termination of a separate and distinct proceeding, requires the order being appealed to be severable from the central cause of action so that the main action can “proceed independent of the ancillary proceeding.” State v. Parker, 194 Conn. 650, 654, 485 A.2d 139 (1984). Obviously, a ruling affecting the merits of a controversy could not be separate and distinct. Id., 653. It is clear that the plaintiffs’ claims for damages and for injunctive relief could not go forward if we were to hold that the summary judgment could properly be appealed. The declaratory judgment was merely a “step along the road to a final judgment” and was not “independent of the main action.” Id., 653-54; Dewart v. Northeastern Gas Transmission Co., 139 Conn. 512, 514, 95 A.2d 381 (1953); Enfield v. Hamilton, 110 Conn. 319, 322, 148 A. 353 (1930). The first Curcio alternative is, therefore, not met.

Nor does this interlocutory order satisfy the second Curcio alternative, that the rights of the parties be so concluded “that further proceedings cannot affect them.” It is obvious that the rights of the parties have not been concluded, because further proceedings upon the plaintiffs’ claims for an injunction and for damages are bound to affect those rights. In re Juvenile Appeal (85-AB), 195 Conn. 303, 312, 488 A.2d 778 (1985); New Haven Redevelopment Agency v. Research Associates, Inc., supra, 120; State v. Fahey, 146 Conn. 55, 57, 147 A.2d 476 (1958); 47 Am. Jur. 2d, Judgments § 1054.

Because the lack of a final judgment is a jurisdictional defect, we must dismiss the appeal. Pinnix v. LaMorte, supra, 343; Guerin v. Norton, 167 Conn. 282, 284, 355 A.2d 255 (1974); Sewer Commission v. Norton, 164 Conn. 2, 6, 316 A.2d 775 (1972); New Haven Redevelopment Agency v. Research Associates, Inc., supra, 120.

The appeal is dismissed, sua sponte, for lack of jurisdiction.

In this opinion the other judges 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.”

       “[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.”

       At oral argument the plaintiffs offered to withdraw their claims for injunctive relief and for damages in this action, reserving the right to bring a separate suit to obtain such relief. It is futile for the plaintiffs to attempt to waive their claims for additional relief in order to meet the final judgment requirement, because a jurisdictional defect renders the appeal void ah initio and is, therefore, not waivable. Hao Thi Popp v. Lucas, 182 Conn. 545, 549, 438 A.2d 755 (1980). In the present appeal there is a complete lack of jurisdiction, and the only power this court has over such a ease is to dismiss for lack of jurisdiction. This court has no power to allow the plaintiff to, in effect, amend his complaint by waiving any claims for further relief. “An amendment presupposes jurisdiction of the case.” Hodge v. Williams, 63 U.S. (22 How.) 87, 88, 16 L. Ed. 237 (1859). We have “no power to allow an amendment conferring jurisdiction, since that in itself would be an exercise of jurisdiction.” Willing v. Provident Trust Co., 21 F. Sup. 237, 238 (E.D. Pa. 1937). Further, the infirmity in this case can by no means be considered merely a waivable “defect in the process of appeal.” LaReau v. Reincke, 158 Conn. 486, 493, 264 A.2d 576 (1969).


author: Per Curiam.

text:
    Tamara Eva Sasso et al. v. William V. Aleshin
    (12577)
    Peters, C. J., Shea, Dannehy, Santaniello and Callahan, Js.
    Argued June 11
    decision released July 30, 1985

      James M. Marinetti, with whom were David Sauer and, on the brief, James Kelly, for the appellant (defendant).

      Clarine N. Riddle, counsel to the attorney general, with whom were Joseph X. Dumond, Jr., assistant attorney general, and, on the brief, Joseph I. Lieberman, attorney general, and Michael J. Belzer, assistant attorney general, for the appellee (state).
   Per Curiam.

The plaintiffs in this action, Tamara Eva Sasso and the state of Connecticut, brought this paternity action against the defendant, William V. Aleshin, alleging that the defendant was the father of a child born to the named plaintiff, Sasso, on July 8, 1971. The state also sought reimbursement for $11,018.84 it had contributed as assistance to the plaintiff and her child during the period October 10, 1975 to July 15,1981. The defendant asserted three special defenses to the plaintiffs’ action, claiming: (1) that the action was barred by the statute of limitations contained in General Statutes § 46b-160; (2) that General Statutes § 46b-171, which he alleges requires a father to bear the entire “expense of lying-in and of support and maintenance of the child until the time of rendering judgment,” denies him equal protection of the law in violation of the fourteenth amendment to the United States constitution; and (3) that General Statutes § 46b-171 denies him equal protection of the law in violation of article first, § 20, of the Connecticut constitution. The defendant also filed a motion to dismiss the case based on claims identical to the special defenses. The motion to dismiss was denied by the court, N. O’Neill, J., on September 13, 1982. The defendant has appealed, claiming that the trial court erred in ruling against him on the three legal issues raised in the motion to dismiss. We dismiss the appeal without reaching the merits of these issues, because the denial of the motion to dismiss was not a final judgment.

The procedural history of this case is unusual. The first hearing was held on January 28,1982, before the court, Spada, J. Although the court found the defendant to be the father of the child, no order of support was entered and the case was postponed for a hearing to determine the amount of the arrearage and to allow the defendant to assert his special defenses. On March 25, 1982, the court conducted a hearing on the amount of the arrearage and entered an order requiring the defendant to pay ten dollars weekly on the arrearage found of $11,018.84, plus attorney’s fees and costs. Although this order appeared to be a final judgment, the court continued the case for a hearing on the defendant’s motion to dismiss. On April 29,1982, the parties filed what they entitled a “Stipulated Motion to Reopen Partial Judgment” so that the defendant’s special defenses could be reached. The court, N. O’Neill, J., opened the judgment as to the amount of the arrearage and the order of payments. The parties then stipulated that the amount of the debt owed to the state was $11,228.84 including attorney’s fees and costs. The only issues left to be resolved, therefore, were those contained in the three special defenses that were also the grounds for the motion to dismiss. After a full hearing on the legal issues, the court denied the defendant’s motion to dismiss and filed an accompanying memorandum of decision discussing the issues involved. No judgment, however, was ever rendered to correspond with the decision denying the motion to dismiss or with the new stipulation concerning the arrearage that the parties entered into following the opening of the earlier judgment. The defendant, nevertheless, appealed, claiming error in the trial court’s rulings.

The threshold question that must be determined is whether this court has jurisdiction over the appeal. Although this issue was not raised by the parties, the court has a duty to dismiss, even on its own initiative, any appeal that it lacks jurisdiction to hear. L. G. DeFelice & Son, Inc. v. Wethersfield, 167 Conn. 509, 511, 356 A.2d 144 (1975); Hoberman v. Lake of Isles, Inc., 138 Conn. 573, 574, 87 A.2d 137 (1952); In re Application of Smith, 133 Conn. 6, 8, 47 A.2d 521 (1946). In order properly to invoke our jurisdiction there must first be a final judgment, except in instances not pertinent here. General Statutes §§ 51-197a, 52-263; Practice Book § 3000; cf. Laurel Park, Inc. v. Pac, 194 Conn. 677, 678 n.1, 485 A.2d 1272 (1984). It is undisputed that the denial of a motion to dismiss is not ordinarily a final judgment. State v. Malkowski, 189 Conn. 101, 104, 454 A.2d 275 (1983); Kioukis v. Kioukis, 185 Conn. 249, 251 n.1, 440 A.2d 894 (1981); Guerin v. Norton, 167 Conn. 282, 283, 355 A.2d 255 (1974); State v. Boucher, 119 Conn. 436, 437, 177 A. 383 (1935); State v. Harris, 4 Conn. Cir. Ct. 534, 536, 236 A.2d 479 (1967); Maltbie, Conn. App. Proc. § 15.

The procedural confusion in this case may have led the parties to the erroneous conclusion that there was a final judgment. At the March 25, 1982 hearing, the court entered an order requiring the defendant to reimburse the state for support payments in an amount agreed upon for the child, but this order was subject to the determination of the issues raised by the motion to dismiss. The parties subsequently stipulated, however, to open that part of the judgment relating to the amount of the arrearage. After a motion for opening a judgment is granted, the case stands as though no judgment had ever been rendered. State v. Phillips, 166 Conn. 642, 646, 353 A.2d 706 (1974); Milford Trust Co. v. Greenberg, 137 Conn. 277, 279, 77 A.2d 80 (1950); Padaigis v. Kane, 125 Conn. 727, 728, 4 A.2d 335 (1939); State v. Carter, 3 Conn. App. 235, 239, 486 A.2d 1138 (1985). Here, the partial judgment establishing the defendant as the father of the child remains in effect but the judgment as to the amount of arrearage is open as though no judgment was ever rendered. The defendant’s rights are not concluded in this case because judgment was not entered against him with respect to the amount he was required to pay to the state. This situation is similar to that in which a judgment is entered as to liability only, without reference to damages. Such a judgment, interlocutory in character, is not an appeal-able final judgment. Stroiney v. Crescent Lake Tax District, 197 Conn. 82, 495 A.2d 1063 (1985); Pinnix v. LaMorte, 182 Conn. 342, 343, 438 A.2d 102 (1980); New Haven Redevelopment Agency v. Research Associates, Inc., 153 Conn. 118, 120, 214 A.2d 375 (1965).

Because the trial court’s denial of the defendant’s motion to dismiss is not a final judgment, the appeal is dismissed for lack of jurisdiction.

In this opinion the other judges concurred.

       The state’s involvement is derived from requirements imposed on it by the federal government. See 42 U.S.C. § 602 (a) (26) (b). The mother of a child receiving public assistance is required to identify the child’s father and, in the event that he does not acknowledge paternity, to bring an action against him. General Statutes §§ 17-82b, 46b-160, 46b-169. If the paternity action is successful and results in an order of support, the moneys so awarded are paid directly to the state because the mother of a child on public assistance must assign her rights of support to the state. General Statutes § 17-82b. See DeMace v. Whittaker, 196 Conn. 413, 414-15, 493 A.2d 219 (1985); Lavertue v. Niman, 196 Conn. 403, 406-407, 493 A.2d 213 (1985).

       The defendant took the witness stand, and upon the court's inquiry he admitted that he was the father of the named plaintiff’s child.

       We note that we have entertained interlocutory appeals from denials of motions to dismiss based on double jeopardy claims. See In re Juvenile Appeal (85-AB), 195 Conn. 303, 308-309, 488 A.2d 778 (1985); State v. Aillon, 189 Conn. 416, 425, 456 A.2d 279, cert. denied, 464 U.S. 837, 104 S. Ct. 124, 78 L. Ed. 2d 122 (1983); State v. Seravalli, 189 Conn. 201, 206 n.6, 455 A.2d 852, cert. dismissed, 461 U.S. 920, 103 S. Ct. 2076, 77 L. Ed. 2d 291 (1983). That constitutional right not only protects against being twice punished but also “is a guarantee against being twice put to trial for the same offense." (Emphasis in original.) Abney v. United States, 431 U.S. 651, 661, 97 S. Ct. 2034, 52 L. Ed. 2d 651 (1977). There is no similar constitutional or statutory right that would require us to extend the privilege of an interlocutory appeal to the case before us.


text:
    Connecticut State College American Association of University Professors v. Connecticut State Board of Labor Relations et al.
    (12196)
    Peters, C. J., Healey, Shea, Dannehy and Callahan, Js.

      Argued June 6
    decision released July 30, 1985

      JoelM. Ellis, with whom, on the brief, was William S. Zeman, for the appellant (plaintiff).

      Joseph M. Celentano, assistant counsel, for the appellee (named defendant).

      Robert E. Walsh, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellees (defendant state et al.).
   Shea, J.

The dispositive issue in this case is whether a statute that has been enacted to be effective at a future date becomes by operation of law part of a state employee collective bargaining agreement entered into prior to that date, where no contrary intention is expressed. The plaintiff, Connecticut State College American Association of University Professors (CSCAAUP), is an employee organization acting as the exclusive statutory representative of a bargaining unit composed of members of the faculty employed by the board of trustees for the Connecticut state colleges. The board of trustees, as well as the state, have been made defendants in this appeal from the dismissal of the plaintiffs petition to the state board of labor relations (SBLR) seeking a declaratory ruling that the state and the board of trustees had engaged in an act prohibited by General Statutes § 5-272. The trial court affirmed the decision of the SBLR dismissing the petition on the merits. From that judgment the plaintiff has appealed to this court and has raised various issues of statutory construction, constitutional law and civil procedure that are involved in the conclusion of the SBLR, affirmed by the trial court, that the defendants did not engage in the prohibited act of “refusing to bargain collectively in good faith with an employee organization.” See General Statutes § 5-272 (a) (4). In our disposition of the appeal we reach none of the constitutional issues and few of the other issues raised. We conclude that the change in the law that the plaintiff claims to have modified the retirement provisions of the collective bargaining agreement was included in that contract by operation of law. Accordingly, we find no error in the judgment of the trial court.

The plaintiff, CSC-AAUP, and the defendant board of trustees for state colleges, acting in behalf of the state, entered into a collective bargaining agreement for the period August 24, 1979, to August 19, 1982. This contract contained provisions continuing for the duration of such term state and federal fringe benefits, including retirement plans, that were uniformly available to bargaining unit members at the time of signing the agreement, July 27, 1979, “unless specially modified by federal legislation.” The state legislature, pursuant to General Statutes § 5-278 (b), approved this agreement on August 13,1979. Prior to such approval fbc i^oislature on June 28, 1979, had enacted Public Acts 1979, No. 79-541, to become effective on January 1, 1980. This act amended the definition of “disabled” in General Statutes § 10-183b (13) from an occupational disability standard to a general disability standard for the purpose of determining eligibility for payments to disabled teachers under General Statutes § 10-183aa. Although the act containing this amendment had been passed by the legislature and signed by the governor before the collective bargaining agreement was approved, it was omitted from the “supersedence analysis” which was submitted to the legislature pursuant to General Statutes § 5-278 (b) at the time of the vote to approve the collective bargaining agreement, August 13, 1979.

On May 9, 1980, after Public Acts 1979, No. 79-541, had become effective, the plaintiff petitioned the SBLR for a declaratory ruling pursuant to General Statutes § 4-176 to determine whether the state, as the employer, had refused to bargain collectively in good faith with the plaintiff concerning the change in the teacher retirement statutes effectuated by Public Acts 1979, No. 79-541, and thus had engaged in a practice prohibited by General Statutes § 5-272 (a) (1) and (4). The SBLR dismissed the petition after concluding (1) that it had jurisdiction to determine the question raised; (2) that “one legislature cannot by its enactments control the exercise of the powers of a succeeding legislature”; and (3) that the prohibition against unilateral changes in conditions of employment made by state officials does not forbid the legislature from making such changes by statute. Upon the appeal from the SBLR the trial court affirmed its dismissal of the petition as well as its conclusions. The court also held that certain constitutional issues raised by the plaintiff were not properly before it because they had not been raised before the SBLR and also because that agency in any event had no jurisdiction to decide constitutional questions. Both the SBLR and the trial court implicitly assumed that Public Acts 1979, No. 79-541, had modified retroactively the terms of the collective bargaining agreement that the legislature had previously approved. In our view, this assumption was incorrect.

“It is true that statutes existing at the time a contract is made become a part of it and must be read into it just as if an express provision to that effect were inserted therein, except where the contract discloses a contrary intention.” Ciarleglio v. Benedict & Co., 127 Conn. 291, 293, 16 A.2d 593 (1940); see State v. American News Co., 152 Conn. 101, 111-12, 203 A.2d 296 (1964); Williamson v. Massachusetts Bonding & Ins. Co., 142 Conn. 573, 116 A.2d 169 (1955). “But into all contracts, whether made between States and individuals or between individuals only, there enter conditions which arise not out of the literal terms of the contract itself; they are superinduced by the preexisting and higher authority of the laws of nature, of nations, or of the community to which the parties belong; they are always presumed, and must be presumed, to be known and recognized by all, are binding upon all, and need never, therefore, be carried into express stipulation, for this could add nothing to their force.” West River Bridge Co. v. Dix, 47 U.S. (6 How.) 507, 532, 12 L. Ed. 535 (1848); see Great Northern Ry. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 53 S. Ct. 145, 77 L. Ed. 360 (1932).

The presumption that parties contract in the light of existing statutes is implemented with respect to collective bargaining agreements with state employees entered into pursuant to § 5-278 (b) by the provision thereof requiring submission to the legislature at the time of its vote upon such an agreement “[a] request ... for approval of any provisions of the agreement which are in conflict with any statute or any regulation of any state agency . . . .” Such a request has been referred to by the parties as a “supersedence analysis.” Unless the legislators are thus informed of those statutes or regulations that conflict with the negotiated agreement, their vote of approval cannot be deemed to modify or suspend such inconsistent provisions of law for the purpose of the agreement. In providing in § 5-278 (e) that, in any conflict with statutes or agency regulations upon matters appropriate for collective bargaining, the terms of the agreement “shall prevail,” the statutory scheme contemplates explicit notice to the legislators of the particular conflicts involved. Board of Trustees v. Federation of Technical College Teachers, 179 Conn. 184, 197, 425 A.2d 1247 (1979). Only in this manner can a vote of approval fairly be deemed to waive or suspend those provisions of law that would otherwise be implied in the contract and override its inconsistent terms. Section 5-278, by imposing the requirement for expressly informing the legislators of conflicts between the agreement and existing statutes or regulations, makes inapplicable the usual rule for ascertaining legislative intent, “that the legislature is presumed to be aware and to have knowledge of all existing statutes and the effect which its own action or nonaction may have on them.” Miller v. Eighth Utilities District, 179 Conn. 589, 594, 427 A.2d 425 (1980). With respect to a collective bargaining agreement approved pursuant to § 5-278 (b), unless a particular statute or regulation has been referred to specifically in the documents submitted to the legislature, its terms must necessarily prevail over conflicting provisions of the agreement. Board of Trustees v. Federation of Technical College Teachers, supra.

The plaintiff does not dispute the finding of the SBLR that the supersedence analysis sent to the legislature when the collective bargaining agreement was approved on August 13,1979, did not mention any conflict with Public Acts 1979, No. 79-514. The plaintiff maintains, however, that this omission is immaterial, because that statute, though enacted into law on July 28,1979, did not become effective until January 1, 1980, and therefore “was not legally in existence” at the time the legislature approved the contract. Although a statute cannot ordinarily be given force before its effective date, the requirement of § 5-278 (b) that the legislature be informed of provisions of the agreement conflicting with any statute or regulation properly applies to a statute duly enacted at the time of contract approval that is to become effective during the term of the agreement. The legislature unquestionably should be made aware of a conflict with a statute that is scheduled to come into force a short time after a collective bargaining agreement has been approved. In this case, if the supersedence analysis had pointed out the difference in treatment of disability claimants in the bargaining unit represented by the plaintiff as compared to other teachers once Public Acts 1979, No. 79-514, became effective, it is quite possible that the legislature would not have voted to approve the agreement but would have returned it for further negotiations in accordance with § 5-278 (b). The requirement that such a conflict be pointed out to the legislature prior to its approval of a collective bargaining agreement assures that a vote of approval, suspending for purposes of the contract any conflicting statutes or regulations, will be had with full knowledge of the consequences. It follows, therefore, that the failure of the supersedence analysis in this case to alert the legislature to the conflict that would arise on January 1, 1980, because of the change in the definition of “disabled” effectuated by Public Acts 1979, No. 79-514, made that amendment applicable to the agreement that had been approved on August 13, 1979, “just as if an express provision to that effect were inserted therein.” Ciarleglio v. Benedict & Co., supra, 293. “Put another way, a term at variance with law, not approved by the legislature in accordance with General Statutes § 5-278 (b), does not enjoy the preferential position provided for legislatively approved conflicting terms by § 5-278 (e), but is rendered a nullity.” Board of Trustees v. Federation of Technical College Teachers, supra, 197.

We conclude, therefore, that there is no factual or legal basis for the plaintiffs petition for a declaratory ruling that the state had engaged in a practice prohibited by § 5-272 by unilaterally modifying a term of the collective bargaining agreement that had previously been approved. No such change in the agreement occurred, because the failure to notify the legislature of the conflict that would arise within the contract period made the modified disability provisions of Public Acts 1979, No. 79-514, which became effective on January 1, 1980, a change contemplated by the contract at the time of its approval. Ciarleglio v. Benedict & Co., supra. Accordingly, the trial court properly affirmed the dismissal of the petition by the SBLR and also properly declined to address the constitutional issues the plaintiff sought to raise.

There is no error.

In this opinion the other judges concurred.

       The statement of issues in the plaintiff’s brief is as follows:
      “1. Where the State, as employer, enters into a collective bargaining agreement with a union representing state employees, and, thereafter, by statute unilaterally changes one of the conditions of employment set forth in said Agreement (despite its agreement not to effect any such change), has the State violated its obligation to refrain from failing to bargain in good faith concerning adverse unilateral changes in conditions of employment and has the State committed a practice prohibited by C.G.S. §§ 5-272 (a) (1) and (4)?
      “2. Where an appellant in an administrative appeal to the Superior Court claims that the decision, as rendered by the agency, itself violates the Contracts Clause of the U. S. Constitution, is such a claim properly before the Superior Court under C.G.S. § 4-183 (g) (1) which provides that the Court may reverse an agency’s decision if it is in violation of constitutional provisions?
      “3. If a claim that an agency’s decision is in violation of the Contracts Clause of the U. S. Constitution may be raised in an administrative appeal pursuant to C.G.S. § 4-183 (g) (1), is that claim properly before the Superior Court in spite of the fact that no claim was made before the agency that its decision not yet announced was in violation of the Constitution when the nature and basis of the decision was not known to the plaintiff prior to its rendition?
      “4. If a claim that an agency’s decision is in violation of the Contracts Clause of the U. S. Constitution may be raised in an administrative appeal pursuant to C.G.S. § 4-183 (g) (1), is that claim properly before the Court in spite of the fact that the plaintiff did not pursue said constitutional claim in a separate action for a declaratory judgment?
      “5. Does the Connecticut State Board of Labor Relations have jurisdiction to determine whether the State, as the employer, has committed a prohibited practice by enacting a statute which unilaterally and adversely changes a condition of employment when the statute in question is ordinarily administered by a different state agency which, itself, has no jurisdiction over prohibited practices?”

       These provisions of the collective bargaining agreement are as follows:
      “12:11 Insurance and Retirement Benefits. Except as specifically modified by this Agreement, state and federal fringe benefits uniformly available to bargaining unit members as of the date of signing this Agreement shall continue to exist during the term of the contract unless specifically modified by federal legislation.
      “12:11:1 The retirement plans available to members on the date of this agreement shall be continued . . . . ”
      It is arguable that the term “benefits uniformly available . . . as of the date of signing this Agreement” can be construed broadly to include the modification of those benefits effectuated by Public Acts 1979, No. 79-541, a duly enacted statute at the time the agreement was executed of which the parties are presumed to have known. Ciarleglio v. Benedict & Co., 127 Conn. 291, 293, 16 A.2d 593 (1940). Neither the parties, the SBLR nor the trial court have adopted this interpretation, but have uniformly assumed that this “benefits uniformly available” clause meant that the conditions for eligibility for payments to disabled teachers in force at the time of the agreement would remain unchanged for the duration of the agreement. We need not, therefore, discuss other possible alternative constructions of these provisions of the agreement.

       Prior to the effective date of Public Acts 1979, No. 79-541, January 1, 1980, “disabled” was defined for the purpose of the Teachers’ Retirement System to mean “(A) for purposes of eligibility for survivor’s benefits, inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or to be of long-continued and indefinite duration; and (B) for purposes of eligibility for disability benefits, permanent inability to render service as a teacher by reason of any medically determinable physical or mental impairment which can be expected to result in death or to be of long-continued and indefinite duration.” General Statutes (Rev. to 1979) § 10-183b (10). Subparagraph (b), which pertains to teacher disability benefits, is referred to as an occupational disability standard.
      The public act changed this definition as follows: “ ‘Disabled’ means inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or to be of long-continued and indefinite duration.” Public Acts 1979, No. 79-541, § 1. This definition is referred to as a general disability standard. See Solberg v. Aetna Life Ins. Co., 151 Conn. 637, 638, 201 A.2d 465 (1964).

       Public Acts 1979, No. 79-541, was passed by the General Assembly on May 31, 1979, and was signed by the governor on June 28, 1979.

       The term “supersedence analysis” has been used by the parties as well as the SBLR to refer to the “request . . . for approval of any provisions of the agreement which are in conflict with any statute or any regulation of any state agency” which must be submitted to the legislature at the time a collective bargaining agreement is to be voted upon. See General Statutes § 5-278 (b).

       General Statutes § 4-176 provides in part as follows: “Each agency may, in its discretion, issue declaratory rulings as to the applicability of any statutory provision or of any regulation or order of the agency, and each agency shall provide by regulation for the filing and prompt disposition of petitions seeking such rulings.”

       General Statutes § 5-272 provides as follows: “(a) Employers or their representatives or agents are prohibited from: (1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed in section 5-271 including a lockout; (2) dominating or interfering with the formation, existence or administration of any employee organization; (3) discharging or otherwise discriminating against an employee because he has signed or filed any affidavit, petition or complaint or given any information or testimony under sections 5-270 to 5-280, inclusive; (4) refusing to bargain collectively in good faith with an employee organization which has been designated in accordance with the provisions of said sections as the exclusive representative of employees in an appropriate unit; including but not limited to refusing to discuss grievances with such exclusive representative; (5) discriminating in regard to hiring or tenure of employment or any term or condition of employment to encourage or discourage membership in any employee organization; (6) refusing to reduce a collective bargaining agreement to writing and to sign such agreement; (7) violating any of the rules and regulations established by the board regulating the conduct of representation elections.”

       It is not clear how this principle is applicable under the circumstances of this case, where the statute claimed to modify the collective bargaining agreement approved on August 18, 1979, was enacted prior to that date by the same legislature that approved the contract. The vote of approval was the last action taken by the legislature pertaining to this contract or its subject matter.

       See footnote 8, supra.