author: PALMER, J.

text:
    ABINGTON LIMITED PARTNERSHIP v. BRUCE G. HEUBLEIN ET AL.
    (SC 16171)
    McDonald, C. J., and Katz, Palmer, McWeeny and Beach, Js.

    Argued May 26, 2000
    officially released August 14, 2001

      Jeffrey J. Mirman, with whom were Wesley W. Horton, and, on the brief, Lisa A. Zaccardelli and Kimberly A. Knox, for the appellant-appellee (plaintiff).

      Thomas J. Reehen, with whom were Richard F. Wareing, Dennis F. Kerrigan, Jr., Brian J. Comerford, assistant attorney general, Kent D. Mawhinney, and, on the brief, James A. Budinetz, Richard Blumenthal, attorney general, Linda Morkan, James Reardon, Mark

      W. Dietz, David A. Baram, and Paul Litman, for the appellees-appellants (defendant Talcott Mountain Science Center for Student Involvement, Inc., et al.).

       The listing of justices reflects their seniority status on this court as of the date of argument.
      Although Chief Justice McDonald reached the mandatory age of retirement before the date that this opinion officially was released, his continued participation on this panel is authorized by General Statutes § 51-198 (c).

   Opinion

PALMER, J.

This case involves a dispute between two abutting property owners, namely, the plaintiff, Abington Limited Partnership, and the defendant, Talcott Mountain Science Center for Student Involvement, Inc. (Science Center), regarding the Science Center’s use of an easement of access that it possesses over a private roadway located on the plaintiffs property. The parties agree that the Science Center acquired an easement over the plaintiffs roadway in 1975, when the Science Center purchased a certain piece of property abutting the property now owned by the plaintiff. The parties disagree, however, as to whether the Science Center also may use the roadway to reach a second piece of property that the Science Center purchased in 1980, which is adjacent to the property that it acquired in 1975. After a court trial, the court rejected the plaintiffs claim that the Science Center is barred from using the roadway to gain access to the property that it purchased in 1980 and, consequently, rendered judgment for the Science Center, among other defendants. We affirm the judgment of the trial court.

The following facts are set forth in the comprehensive and thoughtful opinion of the trial court. The plaintiff owns a ninety-six acre piece of property on Talcott Mountain, located on the border between the towns of Avon and Bloomfield. The plaintiffs property contains a private roadway known as Montevideo Road. The Science Center, which also is located on Talcott Mountain, is a nonprofit, educational institution that was established in 1965. It operates a science academy for grades four through eight and, in addition, creates and broadcasts educational programs, conducts programs for students from several public high schools, and offers weekend and summer programs for children. The Science Center holds an easement over Montevideo Road, which provides the only means of public access to the Science Center. Because the Science Center’s use of that easement gives rise to the dispute underlying this case, it is necessary to explain briefly how that easement originated.

The real property owned by the Science Center consists of two parcels of land that the Science Center acquired from different grantors at different times. Prior to 1955, the first or original parcel, which is comprised of 6.34 acres, was owned by The Hartford Times, Inc. In 1955, the United States government acquired that parcel from The Hartford Times, Inc., pursuant to a declaration of taking filed in federal court pursuant to 40 U.S.C. § 257. The United States government condemned this property, which is known as the federal parcel, for use as a radar tracking installation in connection with its Nike missile program. The United States government also acquired several access easements, including an easement over Montevideo Road, which, at that time, was owned by Katherine Vidal Smith, a predecessor in title to the plaintiff. The declaration of taking indicated that the Montevideo Road easement was “perpetual and assignable . . . ,”

In connection with its acquisition of the federal parcel, the United States government also leased from The Hartford Times, Inc., certain property adjacent to the federal parcel. The United States government leased this property, which is known as the masking area, to preclude any development on that property that might be incompatible with the United States government’s use of the federal parcel as a radar tracking site and to preserve a clear line of sight between the radar equipment to be installed on the federal parcel and the missile facility to be located in the valley below. Under its lease of the masking area, which comprised approximately 4.8 acres, the United States government was authorized to attach fixtures, erect structures, trim and remove trees, and raze any buildings or structures on the property.

When the Nike missile program was discontinued, the federal parcel, along with the access easement over Montevideo Road, became subject to the Federal Property and Administrative Services Act of 1949, 40 U.S.C. § 471 et seq., which provided for, inter alia, the disposal of “surplus real property, including buildings, fixtures, and equipment situated thereon . . . needed for school, classroom, or other educational use . . . .”40 U.S.C. § 484 (k) (1) (1964). In 1967, the United States, acting at the request of the board of education of the town of Avon, and pursuant to 40 U.S.C. § 484 (k), conveyed the federal parcel to the town of Avon. In 1970, the town of Avon leased the federal parcel to the Science Center, which then commenced its activities and programs. In June, 1975, the town of Avon conveyed the federal parcel to the Science Center, which currently uses that property for certain of its operations. It is undisputed that the Science Center holds an easement over Montevideo Road that allows the Science Center and its patrons and employees access to the federal parcel.

Initially, the Science Center held classes and other educational programs in renovated and expanded Nike site buildings located on the federal parcel. In 1980, the Science Center acquired a 13.8 acre parcel of land from the state of Connecticut, known as the state parcel, which abuts the federal parcel. In 1991, the Science Center completed construction of a 20,000 square foot building on the state parcel. Since the completion of that building, which houses administrative offices, classrooms, television studios and a planetarium, the Science Center has used both the federal parcel and the state parcel to conduct its programs. Finally, the Science Center uses the Montevideo Road easement to gain access to both the federal and state parcels.

The plaintiff filed an amended complaint containing four counts: action to settle title, trespass, misuse of easement and overburdening of easement. The essence of each of these claims is that the Science Center holds an easement appurtenant over Montevideo Road that benefits the federal parcel, but not the after-acquired state parcel, and, consequently, the Science Center is not entitled to use the roadway to access the state parcel. The Science Center disputed the plaintiffs contention that its use of Montevideo Road is so limited. Specifically, the Science Center maintained that, under controlling principles of federal common law, its easement over Montevideo Road is an independent property right that exists separate and apart from any particular piece of property. The Science Center claimed, alternatively, that, even if the use of the easement is governed by principles of state common law, that easement, though appurtenant to the federal parcel, also extends to the after-acquired state parcel.

After a trial to the court, the court, applying principles of federal common law, concluded that the Science Center possesses an easement over Montevideo Road that extends to the state parcel as well as to the federal parcel. In particular, the trial court concluded that the easement that the United States government acquired from Smith in 1955 constituted an independent property right pursuant to which the United States government was authorized to use Montevideo Road to obtain access not only to the federal parcel, but also to the masking area and to any other land that the United States government might have sought to reach in furtherance of its military operations. The trial court further concluded that the easement that the Science Center had acquired as successor in interest to the United States government also existed independent of any particular parcel of property. Finally, the court determined that, even if state common law, rather than federal common law, governs the parties’ dispute, the Science Center’s use of Montevideo Road to gain access to the state parcel is permissible in light of the reasonable expectations of the parties when the easement appurtenant was created and the fact that such use will not overburden the easement.

On appeal, the plaintiff contends that the trial court improperly applied federal common law to this case. In particular, the plaintiff contends that there is nothing in the record to support the conclusion that the disputed easement is anything but an easement appurtenant and that “[f]ederal law concerning easements appurtenant does not differ from Connecticut law.” The plaintiff further claims that the trial court improperly applied our state common law of easements to the facts of this case in concluding that the Science Center is entitled to use Montevideo Road to reach the state parcel.

We need not decide whether the trial court properly determined that this case is governed by federal common law because, even if we assume, arguendo, that the plaintiff is correct that no separate and distinct body of federal common law controls the resolution of the parties’ dispute, we conclude that the plaintiff has not established that it is entitled to prevail under established state common-law principles.

As we have indicated; see footnote 6 of this opinion; we previously have had occasion to address this case on appeal after trial. See generally Abington Ltd. Partnership v. Heublein, 246 Conn. 815, 717 A.2d 1232 (1998) (Heublein). In Heublein, we reversed the trial court’s judgment rendered in favor of the Science Center, among other defendants, on grounds unrelated to the merits of the case. See generally id., 818-26, 833. We nevertheless provided guidance to the parties regarding an issue of law that was likely to recur upon retrial and about which the parties had “taken diametrically opposed positions”; id., 827; namely, “the circumstances, if any, in which the benefit of an easement can accrue to property that was acquired by the holder of the easement after the creation of the easement.” Id. Relying on certain facts that we assumed were undisputed, we addressed three issues “raised by the Science Center’s alleged right to access Montevideo Road for the benefit of those of its activities that are located on the [state parcel].” Id., 828. Specifically, we considered: “(1) whether after-acquired property is excluded, as a matter of law, from the right of access previously obtained by an easement appurtenant; (2) in the absence of a per se exclusion, what is the test for determining the extent of the easement; and (3) in applying the proper test, what factual showing is required to determine whether an extended easement overburdens the servitude created by the original easement.” Id.

We then proceeded to reaffirm the principles that we previously had enunciated in Carbone v. Vigliotti, 222 Conn. 216, 610 A.2d 565 (1992), in which we concluded that “the mere addition of other land to the dominant estate does not [necessarily] constitute an overburden or misuse of the easement.” Id., 225. In explaining the holding of Carbone in Heublein, we reiterated that, although an easement of access will not be presumed to attach automatically to after-acquired property, “in some circumstances, the parties at the time of the creation of an easement may be found to have contemplated, as a matter of law, that its benefits might accrue to adjacent property that was not formally within the terms of the easement.” Abington Ltd. Partnership v Heublein, supra, 246 Conn. 829-30. We furthc. explained: “The nub of our holding [in Carbone] was to reject a bright-line rule that permitting adjacent after-acquired property to benefit from an easement of access automatically constitutes an overburden or misuse of the easement. . . . We adopted instead the principle that the construction of an easement requires inquiry into the intent of the parties when the easement was created. ... To determine that intent, we held, a court reasonably may take into account the proposed use and the likely development of the dominant estate.” (Citations omitted.) Id., 830. We cautioned, however, that, “[ujnder no circumstances . . . could an easement be construed to encompass after acquired property if the result would be a material increase in the use of the servient property.” Id. We thereafter stated that, upon retrial, “the governing principles stated in Carbone should be applied.” Id., 832.

Upon application of these principles, the trial court concluded that, when the easement at issue was created, the parties reasonably expected that the United States government might use the easement to access property contiguous to the dominant estate (the federal parcel). The trial court also found that the Science Center’s use of the easement to access the state parcel does not constitute an overburdening of the easement. These conclusions are amply supported by the evidence.

With respect to the intent or reasonable expectations of the parties when the easement was created, the documents pertaining to the condemnation of the federal parcel indicate that the United States government acquired that property for military purposes and, in particular, for use as a radar tracking facility. In light of the highly sensitive nature of the use to which the property was to be put, it is reasonable to conclude, as the trial court did, that military personnel securing the facility would have been free “to venture beyond the perimeter [of the federal parcel] to meet and turn away any trespassers who approached . . . the military installation.” Any such personnel would have been required to use the easement over Montevideo Road to gain access to property beyond the federal parcel.

More importantly, when the United States government obtained the federal parcel, it also acquired the right to occupy the adjacent 4.8 acre masking area pursuant to a lease agreement with the owner of that property, The Hartford Times, Inc. That agreement expressly authorized the United States government to attach fixtures, trim and remove trees, and build or raze any structures on the leased property. As the trial court stated, “[i]t cannot be supposed that the government leased th[e] [masking] area . . . with the expectation that it would have no way of setting foot on it if a need arose. Since the only access to that area was from the federal parcel itself, which was to be reached by the access easement, it seems plain that the . . . government expected to reach the leased land around the federal parcel [over Montevideo Road] . . . .’’The trial court also concluded “that the lease was entered on the land records of the town of Avon . . . thus putting [Smith, the owner of the servient estate] on notice that the federal government’s use of the access easement would be to reach a facility that would include use of both the [federal] parcel . . . and [the] leased land abutting it.”

In light of these facts, we are persuaded that it necessarily was within the reasonable contemplation of the parties at the time of the creation of the easement over Montevideo Road that the benefits of that easement might accrue to adjacent property not formally within the terms of the easement. See Abington Ltd. Partnership v. Heublein, supra, 246 Conn. 829-30.

The facts also support the trial court’s determination that the extended easement does not overburden the servitude created by the original easement. With respect to the intentions of the parties when the easement was created, the trial court properly concluded that, in light of the purpose underlying the acquisition of the federal parcel, it reasonably was to be expected that, at a minimum, the United States government would construct buildings and install radar dishes, towers and antennae on that property and, upon completion, staff the site with sufficient personnel to operate and maintain the facilities. As the court further concluded, it was readily foreseeable that the easement over Montevideo Road would be used by “army vehicles of all descriptions, including large trucks and equipment for installing, operating, guarding and maintaining radar equipment.” Moreover, the court correctly observed that, “[o]n its face, the [easement] taken by the federal government [is] not restricted to those necessary to conduct particular activities .... There is no evidence [to suggest] that the federal government obligated itself to any limitation of its functions or that it made any representations to Smith that the operation of a radar site would entail only limited use of the road. It can hardly be supposed that the federal government’s ability to conduct Cold War military operations could be restricted by . . . Smith as [the owner of the servient estate], and the terms of the taking support no such conclusion.” Finally, the trial court noted that 40 U.S.C § 484 (k) “put landowners on notice that if the government [had] chose [n] to abandon interests in land taken for military purposes, it could be expected that the next use would be an educational institution.” For all these reasons, we agree with the trial court that the intended use of the federal parcel as a military installation supports the conclusion that the United States government was entitled, if it had wished, to make intensive use of the easement over Montevideo Road.

In light of this fact, we also agree with the trial court that the Science Center’s use of the easement to access the after-acquired state parcel is consistent with the intentions and expectations of the parties when the easement was created. As we noted in Heublein, “[subject to the proviso that the servitude beneficiary is not entitled to cause unreasonable damages to the servient estate, or interfere unreasonably with its enjoyment . . . the beneficiary of an easement [is permitted] to make any use of the servient estate that is reasonably necessary for the convenient enjoyment of the servitude for its intended purpose. The manner, frequency, and intensity of the beneficiary’s use of the servient estate may change over time to take advantage of developments in technology and to accommodate normal development of the dominant estate or enterprise benefited by the servitude.” (Internal quotation marks omitted.) Abington Ltd. Partnership v. Heublein, supra, 246 Conn. 831, quoting Restatement (Third), Property, Servitudes § 4.10 (Tentative Draft No. 4, 1994) (officially adopted in 1998). Moreover, the evidence adduced at trial suggests that there has been no material increase in the amount of traffic over Montevideo Road attributable to the Science Center since the Science Center opened its 20,000 square foot facility on the state parcel in 1991 and commenced using the roadway to access both the federal parcel and the state parcel. To our knowledge, the plaintiff never has claimed that the Science Center’s use of the easement over Montevideo Road to access the federal parcel prior to 1991 constituted an overburdening of the servitude. Inasmuch as the traffic over Montevideo Road has not increased since that time, notwithstanding the Science Center’s use of the easement to access both the federal and state parcels, the plaintiff cannot prevail on its claim that the Science Center’s use of the roadway to reach both parcels constitutes an overburdening of the servitude.

The judgment is affirmed.

In this opinion the other justices concurred.

       Abington Limited Partnership is owned and controlled by Michael Konover.

       There are several additional defendants in this case: Metro Mobile CTS of Hartford, Inc., Chase Family Interests No. 7, LLC; Hartford Television, Inc., the state of Connecticut, Tolland Bank and CBS Radio, Inc. Forpurposes of this appeal, the claims asserted against those parties do not differ materially from those asserted against the Science Center, which is the primary defendant. The named defendant, Bruce G. Heublein, is no longer a party to this action.

       “[T]he term easement of access is used to refer to an abutting landowner’s right of ingress, egress, and regress . . . .” (Internal quotation marks omitted.) Bolan v. Avalon Farms Property Owners Assn., Inc., 250 Conn. 135, 142, 735 A.2d 798 (1999).

       See footnote 2 of this opinion.

       The. plaintiff appealed from the judgment of the trial court to the Appellate Court and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.

       We note, preliminarily, that we previously have decided an appeal arising out of an earlier trial of this case. Abington Ltd. Partnership v. Heublein, 246 Conn. 815, 717 A.2d 1232 (1998) (Heublein). In Heublein, we reversed the judgment of the trial court rendered in favor of the Science Center and other defendants and remanded the case for a new trial; id., 833; based on the trial judge’s improper ex parte visit to the property that is the subject of the parties’ dispute and improper ex parte conversation regarding the dispute with the owner of a nearby dwelling, both of which occurred during the pendency of the trial. Id., 826. This appeal arises out of the trial on remand, which was conducted by a different judge.

       Montevideo Road is located in the towns of Avon and Bloomfield.

       The Science Center also operates a communications tower on which some of the defendants lease space.

       The 6.34 acre parcel is part of a larger tract of land that the United States acquired from The Hartford Times, Inc.

         Title 40 of the United States Code, § 257, provides: “In every case in which the Secretary of the Treasury or any other officer of the Government has been, or hereafter shall be, authorized to procure real estate for the erection of a public building or for other public uses, he may acquire the same for the United States by condemnation, under judicial process, whenever in his opinion it is necessary or advantageous to the Government to do so, and the Attorney General of the United States, upon every application of the Secretary of the Treasury, under this section and section 258 of this title, or such other officer, shall cause proceedings to be commenced for condemnation within thirty days from receipt of the application at the Department of Justice.” 40 U.S.C. § 257 (1952).

       In its declaration of taking, the United States, by and through the Secretary of the Army, represented: “The public uses for which said land is taken are as follows: The said land is necessary adequately to provide for additional facilities for the United States Army and other military uses incident thereto. The said land has been selected . . . for acquisition by the United States for use in connection with anti-aircraft positions in the [t]owns of Avon, Bloomfield and Simsbury, Hartford County, Connecticut, and for such other uses as may be authorized by Congress or by Executive Order.” The complaint that the United States government filed in connection with the declaration of taking stated that “[t]he use for which the property is to be taken is for military purposes.”

       In fact, the United States government acquired two contiguous easements over Montevideo Road. For ease of reference, we refer to the easements in the singular.

       In its memorandum of decision, the trial court stated that “ [t]he record of the [federal taking] proceeding indicates that the [United States] government deposited $1000 as compensation to [Smith] for the easements . . . but that, later, in April. 1959, the government moved for an order adjudging just compensation to be $3000 and ordering payment of that amount to [Smith] in care of her attorney .... The motion refers to an agreement between the government and [Smith] in which she accepts $3000 as just compensation for the easements over her property acquired by the government,. . . .
      “The record of the federal taking proceeding includes no motions or other papers filed in federal court on behalf of [Smith]. The fact that [the] government filed the motion to increase tire compensation based on an agreement with [Smith] and the mention of [her attorney] leads this court to infer that [Smith] negotiated for and obtained additional compensation for the [easement], and that the adjustment was achieved without the need for a contested hearing over fair compensation.” (Citations omitted; internal quotation marks omitted.)

       The declaration of taking provides in relevant part: “The estates taken for said public, uses are . . . [a] perpetual and assignable easement: and right of way for the location, construction, operation, maintenance, patrol, replacement and/or removal of an access road, overhead pole and underground electric power and telephone lines, with all necessary fittings and appliances thereto, in, upon, under, over and across the . . . designated [t racts of land] together with the right to trim, cut, fell and remove therefrom all trees, tinderbrush and obstructions, and any other vegetation, structures, or obstacles within the limits of the right of way . . . reserving, however, to the landowners, their heirs, successors and assigns and to all persons legally entitled to the use of the existing road on [the designated tracts of land], the right to pass and repass over said road in such a manner as shall not interfere with the use thereof by the United States and reserving to the landowners their heirs, successors and assigns, all such uses, rights and privileges as may be exercised and enjoyed without interferences with or abridgment of the easement hereby acquired by the United States.”

       The state parcel, which includes a portion of the masking area, partially surrounds the federal parcel on its north, west and south boundaries.

       The building is located in pari, on what formerly was the masking area.

       The plaintiff also alleged that Smith, the plaintiffs predecessor in title, was liable for breach of warranty against encumbrances contained in the warranty deed and for breach of contract under the sales agreement. The plaintiff, however, withdrew those claims prior to trial.

       “Easements are classified as either easements appurtenant or easements in gross. . . . Two distinct estates are involved in an easement appurtenant: the dominant to which the easement belongs and the servient upon which the obligation rests. ... An easement appurtenant must be of benefit to the dominant estate but the servient estate need not be adjacent to the dominant estate. ... An easement in gross is one which does not benefit the possessor of any tract of land in his use of it as such possessor. . . . An easement in gross belongs to the owner of it independently of his ownership or possession of any specific land. Therefore, in contrast to an easement appurtenant, i(s ownership may be described as being personal to the owner of it.” (Citations omitted; internal quotation marks omitted.) Il Giardino, LLC v. Belle Haven Land Co., 254 Conn. 502, 512, 757 A.2d 1103 (2000).

       The trial court determined that federal common law governs because the easement was created by the United States government pursuant to the exercise of its eminent domain power. See, e.g., United States v. 93.970 Acres of Land, 360 U.S. 328, 332-33, 79 S. Ct. 1193, 3 L. Ed. 2d 1275 (1959) (condemnation of land for Nike missile site involves essential government interests and “where [such] interests of the Federal Government Eire concerned, federal law rules unless Congress chooses to make state laws applicable”); see also Higginson v. United States, 384 F.2d 504, 506 (6th Cir. 1967); State Box Co. v. United States, 321 F.2d 640, 641 (9th Cir. 1963); United States v. Certain Interests in Property in Champaign County, 271 F.2d 379, 384 (7th Cir. 1959).

       We, therefore, intimate no view regarding the applicability of federal common law to this case.

       At, trial, the Science Center claimed, alternatively, that it was entitled to use Montevideo Eoad to reach the state parcel because it holds an easement by reservation, by implication or by necessity. The trial court rejected these claims. The Science Center cross appealed on the basis of the trial court’s rejection of the Science Center’s alternative claims. Because we affirm the trial court’s judgment rendered in favor of the Science Center, we do not consider the Science Center’s cross appeal.

       In Heublein, we assumed, inter alia, that it was undisputed “that the masking area encompasses all of the after-acquired property that the Science Center seeks to access by use of Montevideo Road.” Abington Ltd. Partnership v. Heublein, supra, 246 Conn. 828 n.18. In fact, the after-acquired property, that is, the state parcel, is comprised of land that falls both within and without the masking area. This minor factual discrepancy, however, in no way affects the validity of our treatment, in Heublein, of the issues raised by the Science Center’s claimed right to access the state parcel via Montevideo Road.

       “In Carbone, this court upheld the right of an easement holder who built a house on property that straddled the line between the property that he had owned previously and property that he acquired subsequently.” Abington Ltd. Partnerships. Heublein, supra, 246 Conn. 829, citing Carbone v. Vigliotti, supra, 222 Conn. 225. As we noted in Heublein, the Science Center, in responding to the plaintiffs claims on appeal after the first trial, had maintained “not only that Carbone was decided properly, but also that it reflects the present day understanding of the law of easements and servitudes contained in the Restatement (Third) of Property, Servitudes”; Abington Ltd. Partnership v. Heublein, supra, 829; whereas the plaintiff had urged us “to reconsider the validity of that holding ... or, at least, to limit Carbone to its facts.” (Citation omitted.) Id. We agreed with the Science Center. See generally id., 830-32.

       In Heublein, we noted that “[o]ur reaffirmation of Carbone finds support in the recently approved provisions of the Restatement (Third) of Property, Servitudes”; Abington Ltd. Partnership v. Heublein, supra, 246 Conn. 830; which “makes the intentions or the reasonable expectations of the parties the overarching consideration in the construction of a servitude.” Id, 831; see also Il Giardino, LLC v. Belle Haven Land Co., 254 Conn. 502, 513-14, 757 A.2d 1103 (2000).

       We indicated, however, that the principles announced in Carbone might not be applicable upon retrial if the factual assumptions that we had made in Heublein were found to be inaccurate at that retrial. Abington Ltd. Partnership v. Heublein, supra, 246 Conn. 832. As the factual findings of the trial court in the present case indicate, the facts that we assumed to be undisputed for purposes of Heublein are accurate in all material respects. Cf. footnote 22 of this opinion.

       The trial court noted that Smith, who did not testify at trial, had indicated in response to a request for admission that she was unaware that the United States government leased the masking area. The trial court reasonably concluded, however, that Smith, who had been represented by counsel in connection with the acquisition of the easement over her property, had constructive notice of the lease agreement by virtue of the fact that the lease had been entered in the land records of the town of Avon pertaining to the leased property.

       Indeed, the United States government was free to make any use of the federal parcel that might have been approved by Congress or by executive order. See footnote 11 of this opinion. This potential for a broad grant of authority to the United States government regarding its use of the property further supports the conclusion that the parties necessarily understood that the activity on the federal parcel and, thus, the traffic over the easement, could become substantial.

       Donald LaSalle, the director of the Science Center, testified that even though the building constructed on the state parcel added 20,000 square feet of space to the approximately 13,000 square feet of space available for use on the federal parcel, the amount of traffic over the easement has not increased since the opening of the 20,000 square foot facility because that facility contains equipment that allows the Science Center to transmit its programs directly to other schools, thereby obviating the need for students from those schools to travel to the Science Center.

       The plaintiff offers three additional reasons why, in its view, the judgment of the trial court should be reversed. First, the plaintiff, relying on certain language in the trial court’s memorandum of decision, contends that the court improperly assigned it the burden of establishing that the Science Center’s use of the easement to access the after-acquired state parcel constitutes an overburdening of the easement. Although we agree with the plaintiff that the party seeking to extend an easement under the principles set forth in Carbone v. Vigliotti, supra, 222 Conn. 216, and Abington Ltd. Partnership v. Heublein, supra, 246 Conn. 815, bears the burden of establishing that the easement should be construed to encompass after-acquired property, we reject the claim that the trial court improperly shifted that burden to the plaintiff. At most, the trial court’s memorandum of decision is ambiguous on this point. To the extent that the trial court’s memorandum of decision may be viewed as ambiguous in regard to the assignment of the burden of proof on the issue of overburdening, “we read an ambiguous record, in the absence of a motion for articulation, to support rather than to undermine the judgment.” Water Street Associates Ltd. Partnership v. Innopak Plastics Corp., 230 Conn. 764, 773, 646 A.2d 790 (1994). Although the plaintiff filed a motion for articulation, it did not seek articulation with respect to the trial court’s assignment of the burden of proof on the issue of overburdening. Because the plaintiff did not seek the trial court’s articulation in that regard, “we must assume [that] the court acted properly.” Id., 774.
      Second, the plaintiff claims that the trial court improperly rejected its contention that the party seeking to establish that the benefit of an easement appurtenant accrues to after-acquired property—in this case, the Science Center—must do so by clear and convincing evidence. The plaintiff asserts that, in cases such as the present case, the preponderance of the evidence standard is insufficient in light of the burden that an extension of the easement places on the servient estate. We disagree. “Consistent with the heavy burden that [the clear and convincing] standard of proof imposes, courts and legislatures have employed it in constitutional, legislative and common-law contexts involving extremely significant questions of fact.” (Emphasis added.) Miller v. Commissioner of Correction, 242 Conn. 745, 796, 700 A.2d 1108 (1997). Although the question of whether an access easement may be found to benefit after-acquired property undeniably is an important one from the standpoint of those persons or entities with an interest in the dominant or servient estate, we simply are not persuaded 1hat its significance is such as to warrant a departure from the standard of proof that is applicable to the vast majority of factual disputes in civil cases, namely, proof by a preponderance of the evidence.
      Finally, the plaintiff claims that the trial court improperly barred it from adducing certain testimony regarding the condition of Montevideo Road from a traffic engineer who had been retained by the Science Center to conduct traffic studies on that road. We decline to review this claim because the plaintiff has failed to address why the exclusion of this proposed testimony, if improper as alleged, was harmful error requiring a new trial. See, e.g., Ham v. Greene, 248 Conn. 508, 528-29 n.11, 729 A.2d 740, cert. denied, 528 U.S. 929, 120 S. Ct. 326, 145 L. Ed. 2d 254 (1999) (issues not adequately briefed may be deemed abandoned); Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 38, 717 A.2d 77 (1998) (same).


source: Caselaw Access Project

author: SULLIVAN, C. J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JOSE COLON
    (SC 16413)
    Sullivan, C. J., and Norcott, Palmer, Vertefeuille and Zarella, Js.
    Argued April 27
    officially released August 14, 2001

      Richard E. Condon, Jr., special deputy assistant public defender, for the appellant (defendant).

      Rita M. Shair, senior assistant state’s attorney, with whom were John A. Connelly, state’s attorney, and, on the brief, Robin Lipsky, assistant state’s attorney, for the appellee (state).
   Opinion

SULLIVAN, C. J.

A jury found the defendant, Jose Colon, guilty of one count of murder in violation of General Statutes § 53a-54a (a) and one count of conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a (a). The trial court sentenced him to a term of imprisonment of fifty-five years on the murder conviction and twenty years on the conspiracy conviction, to ran concurrently, for a total effective sentence of fifty-five years. The defendant appealed from that judgment to the Appellate Court, claiming that the trial court improperly denied his motion for judgment of acquittal on the conspiracy conviction after his sole alleged coconspirator was acquitted of conspiracy in a separate, subsequent trial. The defendant argued that this outcome was in direct conflict with State v. Grullon, 212 Conn. 195, 562 A.2d 481 (1989), and State v. Robinson, 213 Conn. 243, 567 A.2d 1173 (1989), both of which held that § 53a-48 is strictly a bilateral conspiracy statute. We transferred the appeal to this court pursuant to Practice Book § 65-l. We now conclude that § 53a-48 (a) can be interpreted unilaterally in those cases in which alleged coconspirators are tried separately based on independent evidence of the crime of conspiracy. Accordingly, the defendant’s conviction is affirmed.

The jury reasonably could have found the following facts. Sergeant Michael Fischer of the Waterbury police department testified that on April 22, 1996, the Waterbury police received an anonymous telephone call alerting them to a possible homicide at an abandoned building on Ridgewood Street in Waterbury. When the police arrived, they discovered the bloody body of the victim. The victim had been stabbed several times in the head, neck, arms and torso, and also appeared to have been beaten about the head. A metal pipe and a small buck knife covered in blood and hair were discovered at the crime scene. An autopsy conducted by Edward T. McDonough, the deputy chief medical examiner, revealed that the victim had approximately “125 . . . sharp force injuries ... he had cuts and stabs over the head, the face, the front of the trunk, the back, and the arms and both legs.” The victim also had on his arms, hands and wrists several cuts that were consistent with defensive injuries, as though he had been attempting to protect himself from the blows. The autopsy revealed that the wounds had been inflicted by the buck knife and the metal pipe discovered at the scene, and that another, much larger, weapon also had been used in the attack. Michael Silva, a forensic crime scene technician, described the victim’s wounds as appearing to have been inflicted by a knife that was “large . . . approximately eight inches long with a fat blade with a brass type of guard to it.” Silva also testified that the “cast off’ patterns of blood at the crime scene illustrated that the victim had suffered a “severe attack,” that the “assailant was swinging very, very violently at the victim,” and that the wall behind the victim showed signs of “actual misses . . . [that occurred when] the assailant swung the weapon . . . against the wall . . . .’’He also testified that the hair pattern on the wall behind the victim indicated that he was struck several times in the head. It was the opinion of McDonough and Silva that, as a result of the combined sharp force injuries, the victim bled to death over a period of time.

Lieutenant Michael Ricci of the Waterbury police department testified that on April 23, 1996, the day after the body was discovered, police officers began questioning local residents about the homicide. After being shown a police photograph, the victim’s father identified the victim as his son, Hector Nieves. Once the victim was identified, Ricci and several other officers interviewed area residents in an effort to identify the individual who had made the anonymous call to the Waterbury police. Ricci interviewed Kevin Soto and his girlfriend, Edith Santos, who appeared to have been acquainted with the victim. Ricci requested that the couple come down to the police station the next day to listen to a recording of the unidentified 911 caller. While Soto was at the station, Ricci realized that it was his voice on the 911 tape. Soto then admitted making the call and, after being issued a Miranda warning, disclosed his role in the crime and implicated the defendant as the principal actor. See State v. Soto, 59 Conn. App. 500, 502-503, 757 A.2d 1156, cert. denied, 254 Conn. 950, 762 A.2d 906 (2000). Ricci testified that, after Soto’s disclosure, several officers were dispatched to Kennedy high school in Waterbury to bring the defendant in for questioning. Shortly after his arrival, and after being issued a Miranda warning, the defendant admitted to the officers his participation in the murder.

Ricci testified that, after taking a written statement from the defendant, police officers spoke to Soto a second time about the homicide and also interviewed Santos. Santos gave the police two different statements regarding the events of that day, one before and one after the defendant was placed under arrest. Initially, Santos did not implicate the defendant in the murder. She testified at trial that, when she gave her first statement to the police, she had been afraid that the defendant was still out on the street. Once she knew the defendant was in custody, however, she disclosed to police everything she knew about the murder. Thus, during her second interview with the police, Santos disclosed that she was with Soto at his mother’s residence on the day of the murder. She observed Soto leave the residence with the victim and then return about one half hour later. Santos told the police that, when Soto returned to his mother’s home after spending time with the defendant, he was acting strangely. When she asked what was wrong, Soto revealed to her that he and the defendant had stabbed the victim. Soto then told Santos that they had to go to her apartment because the defendant was there. When Santos arrived at her apartment and saw the defendant, she could see that he was “full of blood from head to toe.” The defendant took a large “sword” out of his sleeve and showed it to her. It also was covered in blood. Santos got the defendant a garbage bag for his bloody clothes, while he showered and changed into clean clothes. Santos testified that, after speaking with Soto, she asked the defendant if the victim was dead and he responded affirmatively. Santos then testified that she, Soto and the defendant left her apartment, and the defendant deposited the bag of bloody clothes behind an abandoned building. When Soto and Santos parted ways with the defendant, they decided to call 911.

Two additional witnesses provided information on the “large sword” Santos described in her statement to the police. Ivan Pagan testified that, on the day of the murder, the defendant came to his house and took a “Pakistani sword” that he was holding for a relative. Ivan Pagan testified that the defendant returned approximately one hour later, in different clothes, and gave the sword back to him with a dent in the tip, covered in fresh blood and hair. The defendant told Ivan Pagan that “he [had] killed [Hector from] up the street.” Ivan Pagan took the sword, cleaned it with alcohol and a rag, wrapped it in tape and placed it in his closet. Later that evening, he hid the sword “on the roof by the side of [his] house” covered in branches. Ivan Pagan testified that his fear of the defendant prompted him to take the sword and hide it for him as instructed. Danny Pagan, Ivan Pagan’s brother, testified that he saw the defendant speak to Ivan Pagan on April 22, 1996. He testified that he observed the defendant meet Soto up the street, and then place the “Pakistani knife” in his pants. When Danny Pagan asked the defendant where he was going, the defendant answered that he was going up the block “on a mission” with Soto. Later that day, Danny Pagan saw the defendant return to their neighborhood and speak to his brother. Ivan Pagan later told Danny Pagan that the defendant revealed to him that he had killed the victim. The next day, Danny Pagan saw the defendant speak to the police and deny that he was “Cujo,” a name the police had learned the defendant was called on the street. After speaking with the police, the defendant approached Danny Pagan and told him that he and Soto had killed somebody with the sword, and he instructed Danny Pagan to move it from its initial hiding place. Danny Pagan testified that after his conversation with the defendant, he moved the sword from the roof where his brother had hidden it, wrapped it in a black plastic bag and placed it in a nearby abandoned garage.

Mark Deal, a Waterbury police officer, took a statement from the defendant that was read into the record at trial. In his statement, the defendant stated that he met Soto on Hillside Avenue in Waterbury on April 22, 1996. Soto, a member of the Latin Kings gang, told the defendant that the victim had “disrespected the [Latin Kings] nation” and that they had to “work him over.” The defendant stated that he and Soto approached the victim and asked him if he wanted to smoke a “blunt,” or a marijuana cigarette, in an abandoned building on Ridgewood Street. The defendant walked into the building before Soto and the victim, but turned around when he heard the victim say, “Oh Kevin, why did you do that?” The defendant stated that when he turned around, the victim was holding his throat. When the victim took his hand away, the defendant stated that he saw a lot of blood coming from the victim’s throat. Soto had pushed the victim to the floor and shut the door. The defendant then stated that Soto passed him the knife and he stabbed the victim in the chest. When the victim resisted the attack, the defendant punched him and swung at him with the knife, while Soto beat him with a long metal bar. The defendant stated that he remembered stabbing the victim approximately five times before Soto said “let’s get out of here.” The defendant stated that the victim was still moving when they left him. After the defendant and Soto left the scene, they went to the home of Santos where they cleaned the victim’s blood off themselves and changed their clothes. In his statement, the defendant identified Soto as the other participant in the killing and described the murder weapon and the clothing he wore the night of the murder.

The jury began deliberations on October 26,1998. On October 27, 1998, the jury returned a verdict of guilty on all charges. At the sentencing phase of the trial, the defendant filed a postverdict motion for judgment of acquittal on the conspiracy charges because his sole alleged coconspirator had been acquitted of conspiracy in a separate trial after the defendant’s conviction but prior to his sentencing. See State v. Soto, supra, 59 Conn. App. 502 n.2. The defendant relied upon State v. Grullon, supra, 212 Conn. 195, and State v. Robinson, supra, 213 Conn. 243, for his argument that, as a matter of law, a defendant cannot be guilty of conspiracy to commit a crime when his sole alleged coconspirator has been acquitted of conspiracy charges stemming from the same crime. The defendant argued that, because his sole alleged coconspirator, Soto, was tried on the same charges, based on identical underlying facts, and acquitted by a jury of the charge of conspiracy to commit murder prior to the defendant’s sentencing, he also musí; be acquitted of the conspiracy charges. The defendant asserted that, because Connecticut’s conspiracy statute requires bilateral agreement, the acquittal of one conspirator necessarily precludes the conviction of the sole alleged coconspirator. The trial court disagreed.

Finding Robinson to be factually distinguishable from the present case, the trial court made the following finding: “The court feels the factual pattern here is unlike . . . Robinson. I think that the fact pattern here triggers the case law that allow[s] inconsistent verdicts at separate trials. I don’t believe it is the policy of the state or the law of the state to undo serious convictions based upon what another jury does in subsequent cases on somewhat different evidence that was presented to that jury.” The trial court went on to state: “In fact, the Court’s recollection . . . [is] that when the two met to gather the sword to move on . . . the evidence against [the defendant] said that they were ‘going on a mission,’ which the jury in [this] case could have interpreted to be a conspiracy. That evidence, my recollection [is], was absent in the case of Mr. Soto, so that two juries, one subsequent to the other, [heard] different evidence, allow[ing] inconsistent verdicts.” Accordingly, the trial court denied the defendant’s motion for judgment of acquittal. We agree with the trial court’s reasoning.

General Statutes § 53a-48 (a) provides that “[a] person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy. . . .” Generally, “[i]n construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) State v. Parra, 251 Conn. 617, 622, 741 A.2d 902 (1999). In Grullon and Robinson, we determined that the language of § 53a-48 (a) supported a bilateral interpretation of our conspiracy laws. State v. Grullon, supra, 212 Conn. 195; State v. Robinson, supra, 213 Conn. 243. “Our examination of the definition of the crime of conspiracy in § 53a-48 convince [d] us that the legislature [had] determined that conspiracy require[d] a showing that two or more coconspirators intended to engage in or cause conduct that constitute^] a crime.” (Internal quotation marks omitted.) State v. Robinson, supra, 250.

In arguing that he could not be convicted of conspiracy once Soto, his sole alleged coconspirator, was acquitted, the defendant relied upon State v. Grullon, supra, 212 Conn. 195, and State v. Robinson, supra, 213 Conn. 243. We now conclude, however, that Grullon and Robinson are factually distinguishable from one another and, therefore, that the rule in Grullon should not have governed our decision in Robinson. In Grullon, we concluded that a defendant could not be guilty of conspiracy pursuant to § 53a-48 without proof beyond a reasonable doubt that he conspired with another individual who was not a police informant or agent because the statute requires that there be an agreement between coconspirators. State v. Grullon, supra, 198-99. In Grullon, the defendant had conspired with a police agent to deliver a shipment of narcotics. The agent did not have the actual intent to commit the crime. Id., 203-204. In Robinson, however, the defendant and his coconspirator both were charged with conspiracy to commit murder and both went to trial in different proceedings. State v. Robinson, supra, 250. The defendant was convicted on the conspiracy charge, but his coconspirator was acquitted. Id. Relying on the Grullon requirement for bilateral conspiracy, we concluded that the acquittal, at a separate trial, of the defendant’s alleged coconspirator foreclosed prosecution of the defendant for conspiracy because the culpability of the coconspirator was “an essential element of the defendant’s offense.” Id., 253.

On the basis of their significant factual differences, however, we now conclude that our reliance on Grullon in deciding Robinson was improper. “The earlier determination in . . . Grullon . . . that General Statutes § 53a-48 is a ‘bilateral’ conspiracy statute does not offer any real insight in addressing the present issue. Nor does the line of cases holding that the acquittal of one conspirator forecloses the conviction of other conspirators found guilty in the same trial. This rule, while making obvious sense in the context of a single trial for all of the reasons stated in the majority opinion, has been rejected by a number of jurisdictions where, as here, the acquittal occurs in a separate trial. See United States v. Irvin, 787 F.2d 1506, 1512-14 (11th Cir. 1986); United Stales v. Roark, 753 F.2d 991, 995-96 (11th Cir.), reh. denied, 761 F.2d 698 (11th Cir. 1985); United States v. Espinosa-Cerpa, 630 F.2d 328, 330-32 (5th Cir. 1980); Gardner v. State, 286 Md. 520, 524-29, 408 A.2d 1317 (1979); Commonwealth v. Brown, 473 Pa. 458, 463-67, 375 A.2d 331 (1977).” State v. Robinson, supra, 213 Conn. 262-63 (Covello, J., dissenting).

In Grullon, the police agent never intended to commit the underlying crime and, therefore, there was no agreement as required by the statute. State v. Grullon, supra, 212 Conn. 203. In Robinson, however, the coconspirators were both charged with the underlying, substantive crime of conspiracy, and both coconspirators were charged with having the underlying necessary intent to enter into the conspiracy. State v. Robinson, supra, 213 Conn. 250. Thus, although we recognize that “[t]he doctrine of stare decisis counsels that a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it”; (internal quotation marks omitted) State v. Murray, 254 Conn. 472, 499, 757 A.2d 578 (2000) (McDonald, C. J., dissenting); it is evident that the facts of these two cases warrant different results and Robinson should be overruled. We noted in Grullon that “[a]llowing a government agent to form a conspiracy with only one other party would create the potential for law enforcement officers to manufacture conspiracies when none would exist absent the government’s presence.” (Internal quotation marks omitted.) State v. Grullon, supra, 203. We reaffirm that principle and decline to overrule Grullon. For the following reasons, however, we con-elude that the rule in Robinson, although “once believed sound, needs modification to serve justice better. . . . [This] court, when once convinced that it is in error, is not compelled to follow precedent.” (Internal quotation marks omitted.) George v. Ericson, 250 Conn. 312, 318, 736 A.2d 889 (1999). We now conclude, therefore, that the conviction of a conspirator may be upheld despite the acquittal of his sole alleged coconspirator in a separate trial where there is sufficient evidence to prove, beyond a reasonable doubt, that the defendant was guilty of conspiracy.

In Robinson, we held that, “as a matter of law, the conspiracy charge against the defendant was barred after the acquittal of the sole alleged coconspirator.” State v. Robinson, supra, 213 Conn. 253. We enumerated therein those jurisdictions that had taken a similar position. Id., 253 n.8. We also recognized, however, that authorities are split over whether criminal liability under conspiracy laws should be extended to situations where a defendant’s coconspirator has been acquitted in a prior trial before a different jury. Id., 251-52, citing annot., 19 A.L.R.4th 192, and cases cited therein. The courts that find liability in such cases have reasoned that “an acquittal is not tantamount to a determination of innocence and that the proof may differ from one trial to another. Central to that reasoning of these courts is their contention that consistent verdicts, even as to conspiracy convictions, are not required at separate trials.” Id., 252. We now consider the rationale of those jurisdictions persuasive.

When coconspirators are tried separately, the acquittal of one on charges of conspiracy should not dictate the acquittal of the other simply because the state in one case has failed to prove an element necessary to a conspiracy charge. See United States v. Espinosa-Cerpa, supra, 630 F.2d 332 (jury’s acquittal of some coconspirators should not be taken to negate fact of possible criminal complicity with any remaining alleged coconspirators); People v. Berkowitz, 50 N.Y.2d 333, 346, 406 N.E.2d 783, 428 N.Y.S.2d 927 (1980) (principles of collateral estoppel do not bar prosecution of one conspirator after acquittal of sole coconspirator in criminal trial). The acquittal of a codefendant in a separate trial “could . . . [result] from a multiplicity of factors completely unrelated to the actual existence of a conspiracy”; United States v. Strother, 458 F.2d 424, 426 (5th Cir.), cert. denied, 409 U.S. 1011, 93 S. Ct. 456, 34 L. Ed. 2d 305 (1972); for example, certain evidentiary issues that might render evidence inadmissible in one trial but not in another. See Rosencrans v. United States, 378 F.2d 561, 567 (5th Cir. 1967); Marquiz v. People, 726 P.2d 1105, 1107 (Colo. 1986). In separate trials, “[t]he evidence presented to the juries and the manner in which that evidence is presented may be significantly different and certainly will never be identical.” Marquiz v. People, supra, 1107. As a result, “[d]ifferent juries may rationally come to different conclusions, especially when differing evidence is presented.” United States v. Roark, supra, 753 F.2d 995.

“An . . . unsuccessful prosecution of an alleged coconspirator in a separate trial means nothing more than that on a given date the prosecution failed to meet its burden of proving the defendant guilty beyond a reasonable doubt of all of the elements constituting conspiracy. It certainly does not mean . . . that a conspiracy did not occur. It has long been recognized that criminal juries in the United States are free to render not guilty verdicts resulting from compromise, confusion, mistake, leniency or other legally and logically irrelevant factors.” (Internal quotation marks omitted.) State v. Robinson, supra, 213 Conn. 263 (Covello, J., dissenting), citing Dunn v. United States, 284 U.S. 390, 393-94, 52 S. Ct. 189, 76 L. Ed. 356 (1932). “Consequently, an acquittal is not to be taken as the equivalent of a finding of the fact of innocence; nor does it necessarily even reflect a failure of proof on the part of the prosecution.” (Internal quotation marks omitted.) State v. Robinson, supra, 263 (Covello, J., dissenting), quoting United States v. Espinosa-Cerpa, supra, 630 F.2d 332. We reject the rule established in Robinson that one conspirator cannot be convicted when his sole alleged coconspirator is acquitted in a separate proceeding. We recognize that “[wjhile symmetry of results may be intellectually satisfying, it is not required.” (Internal quotation marks omitted.) United States v. Roark, supra, 753 F.2d 996, quoting Standefer v. United States, 447 U.S. 10, 25, 100 S. Ct. 1999, 64 L. Ed. 2d 689 (1980).

The defendant in this case was tried and convicted by a jury that was presented with a specific body of facts, some of which were not presented in Soto’s trial. For example, the jury in this case heard testimony of the “mission” upon which the defendant and his coconspirator embarked when they conspired to murder the victim. That evidence was inadmissible at the trial of the defendant’s coconspirator, which may have been a factor in his acquittal on the conspiracy charge. The acquittal of the defendant’s coconspirator did not nullify the defendant’s conviction of the same charge, where the two defendants were tried separately, and their respective juries were presented with separate, independent evidence of their agreement to commit the dime in question. Accordingly, we conclude that the trial court properly concluded that the defendant’s conviction should stand despite Soto’s acquittal and, therefore, that it properly denied the defendant’s motion for judgment of acquittal.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 53a-54a (a) provides: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

       General Statutes § 53a-48 provides in relevant part: “(a) A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy. ...”

       The defendant argued that he should have been acquitted when his coconspirator was acquitted aftar his conviction, but before his sentencing. The timing of the outcomes of these two cases is irrelevant for purposes of this appeal.

       Practice Book § 65-1 provides: “When, pursuant to General Statutes § 51-199 (c), the supreme court (1) transfers to itself a cause in the appellate court, or (2) transfers a cause or a class of causes from itself to the appellate court, the appellate clerk shall notify all parties and the clerk of the trial court that the appeal has been transferred. A case so transferred shall be entered upon the docket of the court to which it has been transferred. There shall be no fee on such transfer. The appellate clerk may require Hie parties to take such steps as may be necessary to make the appeal conform to the rules of the court to which it has been transferred, for example, supply the court with additional copies of the record and the briefs.”

       We do not, however, overrule State v. Grullon, 212 Conn. 195, 562 A.2d 481 (1989), in which we held that a defendant cannot be guilty of conspiracy when the only other coconspirator is a police officer or agent who never actually intended that the illegally “agreed upon” activity occur.

       Additional witness interviews revealed that a large sword like a machete also had been used in the attack.

        Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L, Ed. 2d 694 (1966).

       The Appellate Court opinion, in State v. Soto, supra, 59 Conn. App. 502-503, sets forth the relevant facts as follows: “On April 22, 1996, officers from the Waterbuiy police department were dispatched to 49 Ridgewood Street where they discovered the body of the victim, Hector Nieves, who had been stabbed and cut approximately 125 times. They had been directed to the scene by a 911 emergency telephone call made by a male caller who had identified himself only as ‘Michael.’ On the following day, the defendant, a friend of the victim, was interviewed, and he denied any knowledge of the murder. On the next day, after listening to the 911 tape, the defendant admitted that he had made the call and that the voice on the tape was his. . . . [T]he defendant named Jose Colon as the person who had committed the murder . . . [and] did not admit that he was present or that he had participated in the murder.
      “Following Colon’s questioning by the police, the police again spoke to the defendant and he admitted at that time that he had been present and had been involved in the murder. Thereafter, the defendant gave a signed written statement wherein he described how he and Colon had only planned to scare the victim because the victim had disrespected both of them in public. He indicated that he had given his buck knife to Colon, who after waving it around, gave it back to him. The defendant then cut Nieves on the side of the neck. At trial, the defendant testified that they had been smoking marijuana and had cut the victim on the neck, but that Colon had pulled out a big knife, which was an antique Pakistani sword, and began stabbing Nieves, at which time the defendant left. The defendant then went to the house of his girlfriend, Edith Santos, and told her that Colon had just lolled Nieves.”

       Danny Pagan also described the knife as long, with teeth on one side and a sharp blade on the other.

       In the trial court’s memorandum of decision on Soto’s postverdict motions; State v. Soto, Superior Court, judicial district of Waterbury, Docket No. CR4-247755 (January 20,1999); the court pointed out that the defendant’s statement about going “on a mission” was inadmissible at Soto’s trial.

       Defense counsel argued that “[t]he . . . philosophy . . . behind the Robinson decision is that . . . our conspiracy statute is bilateral as was held in Grullon. . . . [I]f there [are] only two coconspirators ... as there [were] in this case, which I think the evidence is clear that it was [the defendant] and Mr. Soto ... if one or the other is acquitted after trial, it’s a finding on [the] merits; and as a matter of law, then there is no conspiracy because as the case law indicated, you can’t have one hand clapping. It’s not a unilateral situation, it’s a bilateral situation . . . .”

       The defendant recognized that the timing in Robinson was different in that there was an acquittal of the first alleged coconspirator, and therefore the prosecution of the second individual was barred. State v. Robinson, supra, 213 Conn. 253. He went on to argue, however, that “[i]t doesn’t matter who’s convicted first,” relying on Evans v. Commissioner of Correction, 47 Conn. App. 773, 709 A.2d 1136, cert. denied, 244 Conn. 921, 714 A.2d 5 (1998).

       The judge instructed the jury on the conspiracy charge as follows: “A person is guilty of conspiracy when with the intent that conduct constituting a crime be performed . . . here murder, he agrees with one or more persons to engage in or cause the performance of such conduct and any one of them commits an overt act in the pursuance of the conspiracy. To constitute the crime of conspiracy, the state must prove the following elements beyond a reasonable doubt: (1) There was an agreement between the defendant and one or more persons to engage in conduct constituting a crime; (2) there was an overt act in furtherance of the subject of the agreement by one of the persons; (3) there was the intent on the part of the defendant lliat conduct constituting a crime be performed. . . . [WJhat is important is whe1 her 1 he defendant willfully participated in the activities of the conspiracy with knowledge of its illegal ends.”

         Indeed, the legislature has taken no action since the publication of our decisions in Grullon and Robinson, both of which interpreted § 53a-48 as a bilateral conspiracy statute. However, “legislative inaction is not necessarily legislative affirmation . . . .” (Citations omitted; internal quotation marks omitted.) State v. Hodge, 248 Conn. 207, 262-63, 726 A.2d 531, cert. denied, 528 U.S. 969, 120 S. Ct. 409, 145 L. Ed. 2d 319 (1999). The legislature’s failure to challenge either decision is not dispositive of the issue, however, because “even legislative inaction is not the best of guides to legislative intent.” (Internal quotation marks omitted.) Streitweiser v. Middlesex Mutual Assurance Co., 219 Conn. 371, 379, 593 A.2d 498 (1991).

       Several jurisdictions disagree with our holding in Grullon. In People v. Schwimmer, 66 App. Div. 2d 91, 92, 411 N.Y.S.2d 922 (1978), cert. denied, 47 N.Y.2d 1004, 394 N.E.2d 288, 420 N.Y.S.2d 218 (1979), the New York Appellate Division decided that a defendant could be convicted of conspiracy when all the other members of the alleged conspiracy feigned agreement and never intended to perform the object crime. In Schwimmer, the defendant conspired with an undercover New York City police officer and a confidential police informant to illegally sell diamonds owned by the city of New York. The defendant argued that he could not be guilty of conspiracy because his two coconspirators never intended to commit the underlying substantive crimes. Id., 93. He argued that his coconspirators’ lack of intent rendered a finding of “conspiratorial agreement” impossible and, therefore, that he must be acquitted of the conspiracy charges. Id. The New York Appellate Division disagreed and adopted the “ ‘unilateral approach’ exemplified by the [revised] Model Penal Code (10 Uniform Laws Ann., §§ 5.03, 5.04).” Id.; see also People v. Villetto, 47 N.Y.2d 1006, 394 N.E.2d 288, 420 N.Y.S.2d 219 (1979); People v. Teeter, 47 N.Y.2d 1002, 394 N.E.2d 286, 420 N.Y.S.2d 217 (1979). Other states have followed suit. See State v. Chan, 188 Ariz. 272, 274, 935 P.2d 850 (1997) (“person may be guilty of conspiracy even if other person in plot is police agent who has no real intention of committing criminal act”); State v. Null, 247 Neb. 192, 203, 526 N.W.2d 220 (1995) (“consequence of the unilateral approach to make it immaterial to the guilt of a conspirator whose culpability has been established that the other person . . . with whom he conspired [has] not been or cannot be convicted”); State v. Sample, 215 Wis. 2d 487, 501-505, 573 N.W.2d 187 (1998) (coconspirator’s feigned agreement with defendant sufficient to support charge for “inchoate crime of conspiracy”). “Other states have justified the unilateral theory of conspiracy as sound public policy [based on reasoning similar to that of Schwimmer]. Aperson who believes he is conspiring with another to commit a crime is a danger to the public regardless of whether the other person in fact has agreed to commit the crime.” Miller v. State, 955 P.2d 892, 897 (Wyo. 1998).
      We note, however, as we did in Grullon, that “[although much of the language of the New York and Connecticut statutes is virtually identical, the New York statute contains a section, not contained in the Connecticut statute, that specifically states that it is not a defense to a conspiracy charge that the defendant’s coconspirator lacked the mental state necessary to himself be guilty of conspiracy.” State v. Grullon, supra, 212 Conn. 201. Because the holding in Schwimmer hinges on that section, we are not persuaded by the decision in Schwimmer as it pertains to cases in which Ihe underlying conspiracy charge arose out, of a police officer or agent’s feigned agreement to commit a crime.

       As previously noted, this conclusion does not alter our analysis in Grullon,, in which we held that there must be “ ‘at least one bona fide co-conspirator’ ” in order for there to be an underlying substantive charge of conspiracy. State v. Grullon, supra, 212 Conn. 203. Thus, a defendant’s agreement, with a police officer or police agent to commit a crime does not satisfy the requirement in § 53a-48 that there be some other person, with culpable intent, who agrees with the defendant to violate the law. Id.

       Our analysis of § 53a-48 (b) indicates that even when a conspirator successfully thwarts a conspiracy and has a defense to the charge, it does not negate the intent and the guilt of the alleged coconspirator. It is evident, therefore, that it was not the intention of the legislature universally to discharge the guilt of a sole conspirator when, for some evidentiary or procedural reason, his coconspirator is acquitted.


author: PER CURIAM.

text:
    MARY GADBOIS ET AL. v. PLANNING COMMISSION OF THE TOWN OF EAST LYME ET AL.
    (SC 16483)
    Sullivan, C. J., and Norcott, Katz, Vertefeuille and Zarella, Js.
    Argued April 18
    officially released August 21, 2001

      Scott W. Sawyer, for the appellants (named plaintiff et al.).

      Edward B. O’Connell, for the appellee (named defendant).

      Amy M. Stone, for the appellee (defendant Orchard Woods Associates, L.P.).
   Opinion

PER CURIAM.

The plaintiffs in this case, Mary Gadbois, Robert Gadbois and Lucy Romanych (plaintiffs) appeal from the judgment of the trial court dismissing their appeal from the granting of a subdivision application by the named defendant, the planning commission of the town of East Lyme (commission). They claim that the trial court improperly determined that it did not have subject matter jurisdiction over the appeal owing to their failure to comply with the strict requirements of General Statutes § 8-8. We affirm the trial court’s judgment of dismissal.

The following facts are pertinent to this case. In March, 1999, the defendant Orchard Woods Associates, L.P. (Orchard Woods), a developer, submitted a 161 lot subdivision plan to the commission. In May, 1999, the commission unanimously voted to approve the Orchard Woods subdivision plan. The plaintiffs commenced their appeal of that decision by service of process on June 4, 1999. The procedure for the service of legal process in an appeal from the decision of the commission to the Superior Court is delineated in General Statutes § 8-8, which is made applicable to decisions of a planning commission by General Statutes § 8-28. An appeal “shall be commenced by service of process . . . within fifteen days from the date the notice of the decision was published.” General Statutes § 8-8 (b). Process must be served upon “the chairman or clerk of the board” and “the clerk of the municipality.” General Statutes § 8-8 (e).

In the present case, the plaintiffs commenced their appeal of the commission’s decision by means of a citation directed to a proper officer to “summon the . . . Commission ... by leaving with or at the usual place of abode of the chairman or clerk of that Commission a true and attested copy of the complaint and of this citation . . . .” Subsequently, in accordance with the citation, legal process was served upon Walter Cullen, chairperson of the commission, and upon Peter G. Perakos II, Orchard Woods’ agent for service of process. The citation made no reference to the clerk of the municipality, and the town clerk therefore was not served. Accordingly, the trial court dismissed the appeal.

It is well established that within the context of administrative appeals, defects in service of process deny the court subject matter jurisdiction over the appeal. “A citation is a writ issued out of a Court of competent jurisdiction commanding a person therein named to appear on a day named to do something therein mentioned. . . . The citation, signed by competent authority, is the warrant which bestows upon the officer to whom it is given for service the power and authority to execute its command. . . . Without it, the officer would be little more than a deliveryman. . . . [Additionally, the] citation is a matter separate and distinct from the sheriffs return and is the important legal fact upon which the judgment rests. . . . [Thus, a] proper citation is essential to the validity of the appeal and the jurisdiction of the court.” (Citations omitted; internal quotation marks omitted.) Simko v. Zoning Board of Appeals, 205 Conn. 413, 420, 533 A.2d 879 (1987) (Simko I).

In Simko v. Zoning Board of Appeals, 206 Conn. 374, 382, 538 A.2d 202 (1988) (Simko II), this court reaffirmed its decision in Simko I, that the municipal clerk is a necessary party to a zoning appeal. “[W]e affirm Simko I and hold that the clerk of the municipality is a statutorily mandated, necessary party to the proper institution of an appeal and must properly be served with true and attested copies of the appeal.” Id.

Following that decision, the legislature modified the provision of § 8-8 concerning service of appeals, currently found in subsection (e); see Public Acts 1988, No. 88-79, § 1 (b); clarifying that the clerk of the municipality was not a necessary party to the appeal. Public Acts 1988, No. 88-79, however, also emphasized that the service upon the clerk of the municipality was still mandatory. As the trial court ably expressed: “Although neither the chair nor the clerk, as individuals, are necessary parties to this administrative appeal; see General Statutes § 8-8 (e); the commission is a necessary party and the failure to provide sufficient notice of the appeal to that commission deprives the court of subject matter jurisdiction. Service on the chairman . . . and on the clerk of the municipality shall be for the purpose of providing legal notice of the appeal to the board . . . .” (Internal quotation marks omitted.)

The trial court properly concluded that the failure to make service upon the town clerk, a fatal jurisdictional defect, cannot be remedied by the so called “savings provisions”: General Statutes (Rev. to 1999) § 8-8 (p) and (q). General Statutes (Rev. to 1999) § 8-8 (p) provides in relevant part: “The right of a person to appeal a decision of a board to the Superior Court, and the procedure prescribed in this section, shall be liberally interpreted in any case where a strict adherence to these provisions would work surprise or injustice. . . .” General Statutes (Rev. to 1999) § 8-8 (q) provides in relevant part: “If any appeal has failed to be heard on its merits because of insufficient service or return of the legal process due to unavoidable accident or the default or neglect of the officer to whom it was committed, or the appeal has been otherwise avoided for any matter of form, the appellant shall be allowed an additional fifteen days from determination of that defect to properly take the appeal. ...”

As the trial court correctly recognized, this court has not had the opportunity to speak to the issue of the applicability of the savings provisions to defective service of process. We now agree with the trial court that for valid service of process in an administrative appeal from the decision of a zoning board or planning commission, service must be made by “leaving a true and attested copy of the process with . . . the chairman or clerk of the board, and by leaving a true and attested copy with the clerk of the municipality.” (Emphasis added.) General Statutes § 8-8 (e). The adoption of General Statutes (Rev. to 1999) § 8-8 (p) and (q) has not changed this strict requirement except in very specifically defined exceptions. Defective service of process may not be fatal when either the strict adherence to the mandate of § 8-8 (e) would work surprise or injustice, or the problem with the service is due to negligence or error on the part of the sheriff, not the plaintiff. Because the circumstances of this case do not satisfy either narrowly drawn exception, the failure of the plaintiffs to serve legal process correctly is a fatal defect. As a result, the court had no subject matter jurisdiction and correctly dismissed the appeal.

The judgment is affirmed.

       The plaintiffs intervened pursuant to General Statutes § 22a-19 (a), which provides in relevant part: “In any administrative, licensing or other proceeding, and in any judicial review thereof made available by law . . . any person ... or other legal entity may intervene as a party on the filing of a. verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or oUter natural resources of the state.”

       We transferred this appeal to this court from the Appellate Court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.

       General Statutes § 8-8 (b) provides in relevant part: “[A]ny person aggrieved by any decision of a board may take an appeal to the superior court for the judicial district in which the municipality is located. The appeal shall be commenced by service of process in accordance with subsections (e) and (f) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes. . . .”
      General Statutes § 8-8 (e) provides: “Service of legal process for an appeal under this section shall be directed to a proper officer and shall be made by leaving a true and attested copy of the process with, or at the usual place of abode of, the chairman or clerk of the board, and by leaving a true and attested copy with the clerk of the municipality. Service on the chairman or clerk of the board and on the clerk of the municipality shall be for the purpose of providing legal notice of the appeal to the board and shall not thereby make the chairman or clerk of the board or the clerk of the municipality a necessary party to the appeal.”

         General Statutes § 8-28 provides in relevant part: “Any appeal from an action or decision of a planning commission shall be taken pursuant to the provisions of section 8-8.”

       Section 1 (b) of Public Acts 1988, No. 88-79 provides in relevant part: “Notice of such appeal shall be given by leaving a true and attested copy thereof with, or at the usual place of abode of, the chairman or clerk of said board, and by serving a true and attested copy upon the clerk of the municipality, provided service upon the clerk of the municipality shall be for the purpose of providing additional notice of such appeal to said commission and shall not thereby make such clerk a necessary party to such appeal. . .

       In the General Statutes as revised to 2001, what had been subsections (p) and (q) of § 8-8, as revised to 1999, are now subsections (o) and (p). For the salce of consistency with the trial court’s memorandum of decision, the plaintiffs’ brief, the commission’s brief and Orchard Associates’ brief, we will refer to them in this opinion as § 8-8 (p) and (q).