author: Callahan, J.

text:
    Wayne E. Tessmann et al. v. Tiger Lee Construction Company et al.
    (14639)
    Callahan, Borden, Norcott, Katz and Palmer, Js.
    Argued September 24—
    decision released December 7, 1993

      Edward W. Gasser, with whom was Robyn Sondak, for the appellants (named defendant et al.).

      Edward F. Hennessey, with whom, on the brief, was Sheila M. Hennessey, for the appellees (plaintiffs).
   Callahan, J.

This is an appeal from a Superior Court judgment rendered upon a jury verdict finding that the defendant Tiger Lee Construction Company (Tiger Lee) violated the New Home Warranties Act, chapter 827 of the General Statutes, and that the defendants Tiger Lee and Eugene Sammartino violated the Connecticut Unfair Trade Practices Act (CUTPA), chapter 735a of the General Statutes. The jury awarded the plaintiffs compensatory damages of $30,000 against Tiger Lee and Sammartino, and the trial court awarded punitive damages of $30,000, attorney’s fees of $20,000 and interest of $14,375 against those defendants. Tiger Lee and Sammartino appeal from the judgment claiming: (1) the trial court improperly permitted the plaintiffs to testify concerning the diminution in value of their property, which testimony contradicted their earlier answers to the defendants’ interrogatories; (2) the trial court improperly denied the defendants’ request for a continuance to obtain an expert to rebut the plaintiffs’ testimony as to diminution in value; (3) the evidence did not support the trial court’s award of punitive damages; and (4) the trial court engaged in an improper ex parte communication with the jury prior to the conclusion of the trial. We affirm the judgment of the trial court.

The facts can be briefly summarized as follows. In the fall of 1986, the plaintiffs, Wayne and Bonnie Tessmann, purchased a parcel of real property from the defendant FRI Land Equities (FRI). In December, 1986, the plaintiffs contracted with Sammartino, an agent of Tiger Lee, to construct a house on the property. The contract provided for the house to be delivered in April, 1987, but it was not delivered until July, 1987. After delivery, the plaintiffs encountered numerous problems with the construction of the house and complained to Sammartino, Tiger Lee and FRI.

The defendants denied the existence of some of the problems and renounced responsibility for the others. The plaintiffs, thereafter, brought this action in the Superior Court. In their complaint, the plaintiffs claimed that there was a unity of ownership between FRI and Tiger Lee, that Sammartino acted as an agent of Tiger Lee, and that all three defendants violated the New Home Warranties Act and CUTPA in connection with the sale of the property and the construction of the plaintiffs’ house.

I

The defendants’ first two claims address the plaintiffs’ testimony concerning the diminution in value of their house due to the problems with its construction. Specifically, the defendants contend that the trial court improperly permitted the plaintiffs to testify concerning the diminished value of their house, and improperly denied the defendants’ request for a continuance to rebut that testimony. In order to resolve the defendants’ claims, it is necessary to understand the events that led to the trial court’s admission of the plaintiffs’ testimony and to its denial of a continuance to the defendants to obtain an expert to counter that testimony.

The defendants first raised the issue of damages in their requests for disclosure and production, which were served on the plaintiffs on August 30, 1990. In their interrogatories, the defendants asked the plaintiffs to:

“6. State the fair market value of the property in question as of July 31, 1987.
“7. State the fair market value [of the property in question] as of July 25, 1988.
“8. State the fair market value of the property as of July 25,1988, had the alleged defects . . . not been present or had been corrected.” The answers given by the plaintiffs to these questions were “I do not know.”

On the first day of trial the defendants objected to the plaintiffs’ attempt to introduce the report and testimony of Kenneth Grous, a builder. That evidence would have placed a dollar amount on the diminution in value allegedly suffered by the plaintiffs due to the defendants’ substandard construction. The defendants claimed that they had never received a copy of the report. The defendants moved to preclude Grous’ report and testimony under Practice Book § 220 (D), which required the plaintiffs to disclose the substance of any expert testimony they planned to present within sixty days from the date the case was claimed to the trial list. Section 220 (D) provides that, in the absence of such a disclosure, the expert “shall not testify except in the discretion of the court for good cause shown.”

In response to the objection to Grous’ report, the plaintiffs’ counsel stated that the report had been telecopied to the defendants’ counsel in a timely manner. The defendants’ counsel, however, maintained that he had never received a copy of any such report. After hearing argument by both attorneys, the trial court granted the defendants’ motion in limine and excluded Grous’ report and testimony pursuant to § 220 (D).

That ruling precluded the plaintiffs’ only expert witness able to place a dollar amount on the plaintiffs’ damages. Faced with this prospect, the plaintiffs sought to introduce evidence regarding diminution in value by testifying themselves at trial as to their opinion of the value of their house as it was, compared to what it would have been had the house been properly constructed. The plaintiffs testified that, in their opinion, the diminution in value that they had suffered as a result of construction deficiencies was between $20,000 and $30,000.

To recover damages, the plaintiffs had the burden of producing evidence that afforded the jury a reasonable basis to measure the plaintiffs’ loss. Ferri v. Pyramid Construction Co., 186 Conn. 682, 691, 443 A.2d 478 (1982); Johnson v. Flammia, 169 Conn. 491, 501, 363 A.2d 1048 (1975). One way the plaintiffs could have proven damages would have been to present evidence of diminution in value, which is “the difference in value between the property had it been as represented and the property as it actually was.” Johnson v. Healy, 176 Conn. 97, 106, 405 A.2d 54 (1978); West Haven Sound Development Corp. v. West Haven, 207 Conn. 308, 318, 541 A.2d 858 (1988).

It is undisputed that homeowners are qualified to testify as to their personal opinion regarding the value, or diminution in value, of their properties. State v. Simino, 200 Conn. 113, 120, 509 A.2d 1039 (1986); Griffin v. Nationwide Moving & Storage Co., 187 Conn. 405, 422, 446 A.2d 799 (1982); McCahill v. Town & Country Associates Ltd., 185 Conn. 37, 41, 440 A.2d 801 (1981). The defendants conceded as much, but objected to the admission of the plaintiffs’ testimony on the ground that it contradicted their answers to the defendants’ interrogatories, which had indicated that the plaintiffs did not know the fair market value of their house or its fair market value without the defects. Thus the defendants argue on appeal that the trial court improperly failed to exclude the plaintiffs’ testimony pursuant to Practice Book § 231 (d).

Section 231 provides in relevant part: “If any party has failed to answer interrogatories or to answer them fairly, or has intentionally answered them falsely or in a manner calculated to mislead, or has failed to respond to requests for production or for disclosure ... or has failed to comply with the provisions of Sec. 232 . . . the court may, on motion, make such order as the ends of justice require.” Specifically, the court may enter “an order prohibiting the party who has failed to comply from introducing designated matters in evidence.” Practice Book § 231 (d). Whether to exclude testimony under § 231 (d) is a matter entrusted to the sound discretion of the trial court. Berry v. Loiseau, 223 Conn. 786, 798-99, 614 A.2d 414 (1992); Pool v. Bell, 209 Conn. 536, 541, 551 A.2d 1254 (1989); Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 40, 404 A.2d 889 (1978). In reviewing the trial court’s decision, every reasonable presumption should be made in favor of the court’s proper exercise of its discretion. Timm v. Timm, 195 Conn. 202, 206, 487 A.2d 191 (1985); Dudas v. Ward Baking Co., 104 Conn. 516, 518, 133 A. 591 (1926).

The plaintiffs claim that their testimony regarding the diminution in the value of their house attributable to the defendants’ faulty construction was not inconsistent with their answers to the defendants’ interrogatories and was properly admitted for that reason. We disagree.

The plaintiffs first argue that whereas the defendants’ questions regarding fair market value requested a fact, the plaintiffs’ trial testimony simply constituted their opinion of the property’s diminution in value. This distinction is without merit. A determination of fair market value, which is defined as “[t]he amount at which property would change hands between a willing buyer and a willing seller”; Black’s Law Dictionary (6th Ed. 1990); necessarily requires a prediction as to what price a property would command were it to be sold. The plaintiffs, therefore, should have understood that the defendants’ questions sought their opinions as to the property’s fair market value rather than any objectively verifiable fact.

We also reject the plaintiffs’ other overly technical explanations as to why their testimony at trial covered different areas than the defendants’ interrogatories and was not inconsistent with their answers to the interrogatories. A reasonable person would have concluded that the defendants’ interrogatories were aimed at the same information to which the plaintiffs testified at trial—diminution in value. Practice Book § 231, moreover, does not permit sanctions only in instances of outright falsehood but allows the court to impose sanctions for answers that are unfair or “calculated to mislead.” See Mulrooney v. Wambolt, 215 Conn. 211, 219, 222, 575 A.2d 996 (1990) (defendant could not introduce expert at trial after claiming in interrogatory answers that “ ‘[n]o expert contemplated at this time’ ”); Perez v. Mount Sinai Hospital, 7 Conn. App. 514, 517, 509 A.2d 552 (1986) (plaintiff could not introduce an unpaid expert after claiming in interrogatory answers that she had not “ ‘employed’ ” an expert); Sturdivant v. Yale-New Haven Hospital, 2 Conn. App. 103, 106, 476 A.2d 1074 (1984) (plaintiff could not introduce a witness she had previously consulted after she had stated in interrogatory answers that she had not “retained” an expert).

The purpose of § 231 is to enforce the parties’ continuing responsibilities to disclose under Practice Book §§ 224 and 232. Moreover, the purpose of the rules of discovery is to “make a trial less a game of blindman’s buff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.” United States v. Procter & Gamble, 356 U.S. 677, 682, 78 S. Ct. 983, 2 L. Ed. 2d 1077 (1957); Knock v. Knock, 224 Conn. 776, 782, 621 A.2d 267 (1993); Picketts v. International Playtex, Inc., 215 Conn. 490, 508, 576 A.2d 518 (1990). We conclude that the defendants’ interrogatories were posed for the manifest purpose of ascertaining the extent to which the plaintiffs claimed they were damaged, which was also the subject of the plaintiffs’ testimony at trial.

Although we do not accept the plaintiffs’ arguments that the defendants’ interrogatories were substantively different from the questions they answered at trial, we believe, after examining all of the surrounding circumstances, that the trial court acted within its discretion in not excluding the plaintiffs’ testimony under § 231 (d). In the circumstances of this particular case, it was not unreasonable for the court to determine that the plaintiffs’ inconsistent answers resulted from an unanticipated turn of events rather than from any calculated effort by the plaintiffs to mislead the defendants. See Practice Book § 231.

The record discloses that before the first day of trial, the plaintiffs had intended to present an expert to testify as to the diminution in value of their property. Accordingly, from the time they answered the defendants’ interrogatories up to the date of the trial, the plaintiffs justifiably could have relied on their expert to testify as to diminution in value and they would have had no reason to form an independent opinion on that subject. In other words, it was reasonable for the plaintiffs to have relied on their expert’s opinion prior to trial, without ever having made an independent determination in value. It was only when the plaintiffs discovered, on the first day of trial, that their expert would not be allowed to testify that it became necessary for them to develop a different strategy for proving damages. It was reasonable under these circumstances for them to attempt at that time to formulate an opinion based on their personal knowledge and to testify to it pursuant to McCahill v. Town & Country Associates, Ltd., supra. The sanctions provisions of § 231 are not mechanically applied. Rather, the trial court is afforded wide discretion to “make such order as the ends of justice require.” Under the circumstances of this case, we cannot conclude that the court abused its broad discretion or acted unreasonably in refusing to sanction the plaintiffs by excluding their testimony as to diminution of value.

II

The defendants next claim that once the testimony was admitted, the trial court abused its discretion by refusing the defendants’ request for a continuance to obtain an appraiser to rebut the plaintiffs’ unexpected testimony. The decision to grant or deny a continuance lies within the sound discretion of the trial court. Statewide Grievance Committee v. Friedland, 222 Conn. 131, 142, 609 A.2d 645 (1992); Rullo v. General Motors Corp., 208 Conn. 74, 78, 543 A.2d 279 (1988); State v. Marra, 195 Conn. 421, 437, 489 A.2d 350 (1985). In order to demonstrate that the trial court abused its broad discretion, the defendants must demonstrate that (1) the court acted arbitrarily in denying their motion for a continuance, and (2) the denial actually prejudiced the defendants’ ability to present a defense. Rullo v. General Motors Corp., supra, 79 (“continuance serves to minimize the possibly prejudicial effect of a late disclosure”); State v. Marra, supra, 438; State v. Myers, 193 Conn. 457, 463, 479 A.2d 199 (1984).

We begin with the proposition that when a party is prejudiced by a failure to disclose in a timely manner, a continuance is ordinarily the proper method to alleviate any prejudice. Rullo v. General Motors Corp., supra; State v. Barrett, 205 Conn. 437, 455, 534 A.2d 219 (1987). The record indicates that the defendants had no notice of the plaintiffs’ testimony as to value until the day that it was presented. Although the plaintiffs’ counsel claimed that he had given the defendants timely notice of Grous’ report, the trial court accepted the representation by the defendants’ counsel that he never received the report. Moreover, as discussed above, the defendants reasonably concluded from the plaintiffs’ answers to their interrogatories that the plaintiffs would not testify as to diminution in value.

Consequently, the defendants have demonstrated that they did not receive timely notice of the plaintiffs’ testimony and that a continuance could have been proper under the circumstances. They have failed, however, to demonstrate that the trial court’s refusal to grant them a continuance actually prejudiced their ability to present a defense. The defendants requested a continuance so they would have time to secure an appraiser to rebut the plaintiffs’ testimony concerning the value of their house. Nevertheless, the defendants have not established that a continuance was necessary to secure an appraiser to testify. After the plaintiffs testified, the defendants had the period of time from May 6, the date of the plaintiffs’ testimony, until May 14, the end of the defense presentation, eight days later, to obtain an appraiser. The defendants, themselves real estate agents and builders, should have had no difficulty in securing a competent appraiser to view the property and prepare testimony to counter that of the plaintiffs within the eight day time period. There is nothing in the record to indicate that the defendants even attempted to secure an appraiser. Under these circumstances, we cannot conclude that the trial court’s action prejudiced the defendants’ ability to present a defense.

Ill

The defendants’ next contention is that the trial court abused its discretion in awarding punitive damages in the amount of $30,000. General Statutes § 42-110g (a) provides that “[t]he court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper.” The standard for awarding punitive damages under CUTPA was set forth in Gargano v. Heyman, 203 Conn. 616, 622, 525 A.2d 1343 (1987), where we explained, “ ‘[i]n order to award punitive or exemplary damages, evidence must reveal a reckless indifference to the rights of others or an intentional and wanton violation of those rights. Collens v. New Canaan Water Co., 155 Conn. 477, 489, 234 A.2d 825 (1967).’ ”

The record in this case contains evidence that, if credited, amply supports the trial court’s determination that the defendants’ actions, at the very least, exhibited a reckless disregard of the plaintiffs’ rights. Bonnie Tessmann testified that Tiger Lee represented that it would do all the work itself with its own employees, but that Tiger Lee, in fact, relied completely on subcontractors. She also testified that, although she informed Sammartino that the side driveway needed to be constructed to afford easy access to the kitchen door because of her medical problems, the driveway was not suitable for her use and in fact was so steep that it leaked water into the basement. She further attested that the skylight leaked consistently from the time she moved in, but that Tiger Lee and Sammartino refused to correct the condition and claimed it was merely condensation. Moreover, she stated that Sammartino inspected another leak, but later denied seeing either the leak or the bucket she placed under it and subsequently refused to discuss the leak any further. Bonnie Tessmann further testified that, even at the time of trial, water continued to leak into her basement near an electrical panel and into her garage, due to poor grading that Sammartino had refused to correct. She also testified that, although she was told she would receive a dumpster to dispose of debris on the property, the dumpster was never delivered and, in fact, when the house was built, paint cans and other noxious materials were partially buried in a wetland near her well. Furthermore, Walt Tabor, an agent of the defendants, wrote a letter to Wayne Tessmann indicating that the solution to the problem of mice entering the house through a hole in a wall was to set mouse traps.

After hearing this testimony and other evidence of the defendants’ derelictions, the trial court concluded that “the defendants attempted to stonewall the plaintiffs .... [T]hey made no real substantive type repairs, ignored the plaintiffs’ requests, [and] took advantage of the plaintiffs.” The defendants’ actions clearly rise above simple negligence and support a finding of reckless or intentional conduct by the defendants to the plaintiffs’ detriment. Given the extensive testimony as to issues relevant to punitive damages, we conclude that the trial court’s determination that punitive damages were warranted in the amount of $30,000 was supported by the record and did not constitute an abuse of the court’s discretion.

IV

The defendants’ final claim is that the trial court received an improper ex parte communication from a juror in violation of Canon 3A (4) of the Code of Judicial Conduct. They contend that the violation occurred when the court met with the jury after the jury had awarded compensatory damages and had been discharged, but before the court had formulated its award of punitive damages and attorney’s fees. According to the defendants, after the trial court had awarded punitive damages and attorney’s fees, the court had told the defendants’ counsel that, at its earlier meeting with the jury, one of the jurors had indicated to the court that he did not like Sammartino.

The defendants moved to set aside the verdict or to grant a new trial on the issue of punitive damages, arguing that the juror’s comment might have affected a matter still pending before the court, constituted an impermissible ex parte communication, and detracted from the court’s appearance of impartiality. The court denied the defendants’ motion.

Canon 3A (4) provides: “A judge shall not initiate, permit or consider ex parte communications . . . .” (Emphasis added.) A judge, nevertheless, is authorized to have ex parte communications “for scheduling, administrative purposes or emergencies that do not deal with substantive matters or issues on the merits . . . provided: (i) the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication, and (ii) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication and allows an opportunity to respond.” (Emphasis added.) Code of Judicial Conduct Canon 3A (4) (a).

Prior to meeting with the jurors, the court notified the attorneys for both parties of its intention to do so, and explained that the purpose of its meeting was to answer any questions the jurors might have about the trial they had just completed and to solicit feedback about the attorneys’ performances. None of the parties objected to the court’s expressed intention. Thereafter, when the defendants moved to set aside the verdict, the court placed the purpose of the meeting more fully on the record stating: “[A]s a matter of good public relations, this court has adopted the policy of speaking with its jury for two purposes; one is to respond to their questions about things that happen during the trial, and, secondly . . . the court inquires as to their opinions as to the behavior of counsel.” The court stated that during these meetings it never inquired as to how the jury had reached its verdict. Answering jurors’ questions, to promote good public relations, and soliciting feedback regarding the performance of members of the bar are within the court’s administrative functions and are permissible under Canon 3A (4) (a) as long as the judge fully discloses his intention to speak with the jury and discloses the subject matter to be discussed.

The defendants do not appear to question the court’s authority, in general, to conduct an ex parte meeting with a discharged jury. Instead, the defendants claim that the juror’s comments to the trial court regarding his personal feelings toward Sammartino detracted from the required appearance of impartiality on the part of the trial court and that the court acted improperly by failing to disqualify itself from the remaining matters in the case. The defendants do not claim, and there is no independent evidence that would lead us to believe, that the court invited or solicited the juror’s comment in question.

Canon 3C (1) of the Code of Judicial Conduct requires a judge to disqualify “himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.” The reasonableness standard is an objective one. Thus, the question is not only whether the particular judge is, in fact, impartial but whether a reasonable person would question the judge’s impartiality on the basis of all the circumstances. Papa v. New Haven Federation of Teachers, 186 Conn. 725, 746, 444 A.2d 196 (1982); E. Thode, Reporter’s Notes to Code of Judicial Conduct (1973) p. 60 (standard is whether a “reasonable [person] knowing all the circumstances” would conclude that the judge’s “ ‘impartiality might reasonably be questioned’ ”). The defendants contend that because the trial court heard the juror’s comment, a reasonable person would question the judge’s ability to decide the issue of punitive damages and attorney’s fees in an impartial manner. We disagree.

The court had presided over a trial that consumed six actual trial days, had heard all the witnesses testify and had ample information to arrive at its own conclusions. There is no allegation that the court initiated, or participated in, a conversation about the merits of the case. Moreover, the court stated for the record that, while it was “conceivable” that the comment was made, it had no effect on the court’s award of punitive damages.

In civil bench trials, judges are regularly faced with the task of disregarding irrelevant and possibly prejudicial evidence and making a decision based exclusively on the evidence admitted at trial and the applicable law. Moreover, we do not require a new trial every time a jury is exposed to prejudicial matter, but often cure any possible prejudice with an instruction to the jury to disregard any irrelevant prejudicial information it may have acquired during the course of the trial. We conclude that, even if it is assumed the juror made the comment ascribed to him, a reasonable person would not, under the circumstances, question the ability of the trial court to disregard the juror’s comment and decide the remaining issues in the case in an impartial manner.

The judgment is affirmed.

In this opinion the other justices concurred.

       The defendants appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). The defendant FRI Land Equities did not appeal and is not involved in this appeal.

       Practice Book § 220 (D) provides in relevant part: “[A]ny plaintiff expecting to call an expert witness at trial shall disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds lor each opinion, to all other parties within 60 days from the date the case is claimed to a trial list. ... If disclosure of the name of any expert expected to testify at trial is not made in accordanee with this subsection, or if an expert witness who is expected to testify is retained or specially employed after that date, such expert shall not testify except in the discretion of the court for good cause shown.”

       Bonnie Tessmann testified that the diminution in value was between $20,000 and $23,000, and Wayne Tessmann testified that the diminution in value was between $20,000 and $30,000.

       The defendants also contend that the plaintiffs’ testimony as to diminution in value should not be allowed because the plaintiffs, although claiming to testify to diminution in value, actually gave their opinion as to the cost of repairs. This claim is without merit.
      First, we note that a homeowner’s opinion on diminution in value may be accepted if, from all the evidence, the trier of fact finds the opinion credible. McCahill v. Town & Country Associates, Ltd., 185 Conn. 37, 41, 440 A.2d 801 (1981). Both plaintiffs claimed to give their opinion as to the diminution in value of the property. The fact that they may have relied, in part, on the cost of repairs in giving their opinion is no basis on which to challenge their opinions. It is well established that the “[rjeasonable costs of repair may . . . sometimes furnish a reasonable approximation of diminished value. Richard v. A. Waldman & Sons, Inc., 155 Conn. 343, 348-49, 232 A.2d 307 (1967); Levesque v.D & M Builders, Inc., 170 Conn. 177, 182, 365 A.2d 1216 (1976).” Johnson v. Healy, 176 Conn. 97, 106, 405 A.2d 54 (1978). If the defendants wished to challenge the plaintiffs’ calculation of diminution in value, the appropriate vehicle would have been cross-examination, which the defendants failed to do. We cannot say that the trier of fact could not reasonably have accepted the plaintiffs’ unchallenged opinions. The defendants’ other objections to the plaintiffs’ testimony, not raised at trial or in their motion to set aside the verdict or for a new trial, will not be considered. See Practice Book § 4185; Safford v. Warden, 223 Conn. 180, 189-90, 612 A.2d 1161 (1992); Miko v. Commission on Human Rights & Opportunities, 220 Conn. 192, 197 n.5, 596 A.2d 396 (1991).

       “[Practice Book] Sec. 232. —continuing duty to disclose
      “If, subsequent to compliance with any request or order for discovery and prior to or during trial, a party discovers additional or new material or information previously requested and ordered subject to discovery or inspection or discovers that the prior compliance was totally or partially incorrect or, though correct when made, is no longer true and the circumstances are such that a failure to amend the compliance is in substance a knowing concealment, he shall promptly notify the other party, or his attorney, and file and serve in accordance with Sec. 120 a supplemental or corrected compliance.”

       The plaintiffs also rely on General Statutes § 52-200, which provides that a disclosure on oath “shall not be deemed conclusive, but may be contradicted like any other testimony.” Because we find that the trial court did not abuse its discretion in admitting the plaintiffs’ testimony, we need not reach the question of an alleged conflict between the discovery rules and the General Statutes.

       The only discussion of the continuance at trial consisted of the following colloquy between the defendants’ counsel and the trial court:
      “Mr. Gasser: I would also move at this time, Your Honor, for a continuance of this case in order to obtain testimony in contravention to that testimony which I feel has never been disclosed to date. I’m asking for a two-week continuance to obtain an appraiser who was never obtained because [neither] Mrs. Tessmann nor Mr. Tessmann ever responded in the interrogatories, Your Honor.
      “The Court: Your request is denied.
      “Mr. Gasser: Exception please Your Honor.
      “The Court: You may have an exception.
      “Mr. Gasser: Thank you.”

       The plaintiffs’ testimony regarding damages was presented on May 6, 1992, the second day of trial. The plaintiffs’ case rested six days later, on the afternoon of May 12. The defendants’ case rested the next day of trial, May 14, and the jury heard closing arguments later the same day.

       On appeal, the defendants have not questioned the reasonableness of the amount of the award, but have limited their argument to the proposition that no punitive damages should have been awarded.

       The defendants are, in fact, precluded from making this claim because they failed to object when the trial court informed the parties of its intention to meet with the jury to discuss these matters. We do not allow parties to await the outcome of a matter before deciding whether to make an objection but require parties to raise the objection, if possible, when there is still an opportunity for the court to correct the proposed error. Gillis v. Gillis, 214 Conn. 336, 343, 572 A.2d 323 (1990); Krattenstein v. G. Fox & Co., 155 Conn. 609, 616, 236 A.2d 466 (1967).

       In fact, the court’s comments, made in denying the defendants’ motion to set aside the verdict or for a new trial, give the impression that the trial court had no real recollection of the comment having been made (“I don’t have any particular memories of discussing very much about the trial. . . . Now it is conceivable, and obviously it must have happened, that somebody must have said, T really don’t like that Mr. Sammartino,’ but I have to in good conscience say that it had no effect whatsoever on whether or not the court was going to impose punitive damages.”).

       The case the defendants rely on, Smith v. Convenience Store Distributing Co., 583 N.E.2d 735 (Ind. 1992), is not on point. In Smith, the trial court, contrary to its representations to the parties, actively engaged in an impermissible ex parte communication by answering a jury’s questions regarding retrial, mediation and settlement of the case before the jury had entered its deliberations. The Supreme Court oflndiana found that the judge’scomments constituted an impermissible ex parte communication and granted a new trial because of the presumed prejudicial effect on the jury’s deliberations. Id., 738.
      The present case does not involve a judge’s comments on relevant legal authority to a jury before the conclusion of trial, but involves an unsolicited comment reflecting a juror’s personal feelings toward a defendant that occurred in the course of an otherwise legitimate ex parte encounter after the jury had completed its function and had been discharged from further consideration of the case.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    State of Connecticut v. Roscoe Johnson
    (14677)
    Peters, C. J., Callahan, Borden, Berdon and Santaniello, Js.
    Argued November 2—
    decision released December 7, 1993

      Richard Emanuel, public defender, for the appellant (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Richard L. Pabmho, Jr., assistant state’s attorney, for the appellee (state).
   Per Curiam.

In this certified appeal, we granted permission to appeal limited to two issues, one concerning the timeliness of a challenge to the imposition of a fine on an arguably indigent defendant, and the other concerning the constitutionality of a jury instruction on reasonable doubt. The defendant, Roscoe Johnson, was convicted, after a jury trial, of possession of narcotics with intent to sell, in violation of General Statutes § 21a-277 (a). The trial court sentenced the defendant to the statutory maximum of fifteen years imprisonment and imposed a fine of $50,000. The Appellate Court affirmed the judgment. State v. Johnson, 29 Conn. App. 584, 617 A.2d 174 (1992). Having decided that our grant of certification was improvident, we now dismiss the defendant’s appeal to this court.

Both issues on which we granted certification were fully considered and properly resolved against the defendant in the well reasoned opinion of the Appellate Court. Id., 589-90. Having examined the record on appeal and studied the briefs and the arguments of the parties, we conclude that it would serve no useful purpose to repeat the discussion contained in the Appellate Court’s opinion.

The impact of indigency on a criminal defendant’s liability to pay a fine is codified in Practice Book § 929. Section 929 provides: “No person shall be incarcerated as a result of his failure to pay a fine unless the judicial authority first inquires as to his ability to pay the fine.” This section is rooted in the constitutional principle that the state may not “subject a certain class of convicted defendants to a period of imprisonment beyond the statutory maximum solely by reason of their indigency.” Williams v. Illinois, 399 U.S. 235, 241-42, 90 S. Ct. 2018, 26 L. Ed. 2d 586 (1970); see also Bearden v. Georgia, 461 U.S. 660, 664, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983); Moscone v. Manson, 185 Conn. 124, 130, 440 A.2d 848 (1981); State v. Zakrzewski, 26 Conn. App. 716, 718, 603 A.2d 432 (1992). In the circumstances of the present case, however, in which the sentence imposed upon a criminal defendant includes a term of imprisonment as well as a fine, § 929 provides no specific guidance concerning the time when a judicial inquiry into indigency should be conducted. Although a clarifying amendment of the rules of practice to address the problem illuminated by this case might well be desirable, this court does not sit as the Rules Committee of the Superior Court. See State v. Jennings, 216 Conn. 647, 665 n.11, 583 A.2d 915 (1990); Kupstis v. Michaud, 215 Conn. 435, 437, 576 A.2d 152 (1990).

The appeal is dismissed.

       This court’s order granted the defendant’s petition for certification to appeal, limited to the following issues:
      “1. Did the Appellate Court correctly conclude that an arguably indigent defendant, who has been sentenced to a maximum term of imprisonment of fifteen years and the maximum fine of $50,000 for a single offense, may not challenge the imposition of that fine until he has served the fifteen year sentence?
      “2. Did the Appellate Court correctly conclude that the trial court’s definition of a reasonable doubt as ‘a doubt for which a valid reason may be assigned,’ was not reviewable, or if it was reviewed on its merits, was not erroneous?” State v. Johnson, 224 Conn. 927, 619 A.2d 851 (1993).

         General Statutes § 21a-277 provides in relevant part: “penalty for ILLEGAL MANUFACTURE, DISTRIBUTION, SALE, PRESCRIPTION, DISPENSING, (a) Any person who . . . 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 marijuana, 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 fifty thousand dollars or be both fined and imprisoned; and for a second offense shall be imprisoned not more than thirty years and may be fined not more than one hundred 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 two hundred fifty thousand dollars, or be both fined and imprisoned.”


author: Berdon, J. Borden, J.,

text:
    State of Connecticut v. Rofio Greenfield
    (14582)
    Peters, C. J., Callahan, Borden, Berdon and Norcott, Js.
    Argued September 23—
    decision released December 7, 1993

      Beth A. Merkin, assistant public defender, with whom was Brian S. Carlow, assistant public defender, for the appellant (defendant).

      Mary H. Lesser, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and JohnM. Waddock, assistant state’s attorney, for the appellee (state).
   Berdon, J.

The defendant, Rofio Greenfield, raises three issues on appeal: (1) whether the trial court improperly denied the defendant’s motion to suppress evidence as the fruit of an illegal seizure; (2) whether the trial court improperly found probable cause to prosecute the defendant for murder; and (3) whether the trial court improperly denied the defendant’s motion for judgment of acquittal due to insufficient evidence of his intent to kill.

The defendant was charged with the crime of murder in violation of General Statutes § 53a-54a (a). In a hearing held pursuant to article first, § 8, of the constitution of Connecticut, and General Statutes § 54-46a, the trial court found probable cause to prosecute the defendant for murder. After a jury trial, the defendant was convicted of murder, and sentenced to a term of imprisonment of forty-five years. He appeals to this court pursuant to General Statutes § 51-199 (b). We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On June 25, 1990, the defendant accompanied the victim, William Dolphin, into the victim’s apartment building in New Haven. They were seen entering the building together by a resident of the building, Robert Terry. The defendant and the victim went into the victim’s one room efficiency apartment on the sixth floor. The defendant attacked the victim, hitting him repeatedly, targeting his head and neck, and leaving him unconscious in the hallway.

After attacking the victim, the defendant left the building at a walking pace. Terry was sitting outside, at the back of the building, with his grandson Ken Evans, and they observed the defendant as he walked by, wearing a stained shirt. The defendant turned toward them. Evans said “hey,” and the defendant looked startled, then raised his hand at them and Terry waved back. The defendant then turned around and walked in a different direction.

The victim’s neighbor, Concetta Apuzzo, discovered the victim lying in the sixth floor hallway and called 911. When the paramedics and police arrived on the scene, they found the victim lying unconscious in the hallway outside his apartment. The victim’s face was bloodied and he had a forehead compression, a dented area of the skull. The attack had left pools of blood from the bed area through the kitchen to the outside hallway, with blood splatters and smears on a counter, wall and bed. The floor of the kitchen was so covered with blood that there was no place for the crime scene technician to walk without stepping in it. There was a broken lamp on the bed, its shade on the floor, two chairs knocked over, and the victim’s two denture plates were lying on the bed and floor. The overall condition of the apartment was described by investigating officer Robert Mullins as consistent with a “violent struggle.”

While the police were investigating the scene and interviewing witnesses, the defendant returned to the apartment building. At this point, the defendant had no shirt on, and his pants and shoes were covered with blood. Sergeant Anthony Griego, noticing the defendant’s appearance, asked the defendant to come in the building with him and the defendant did so voluntarily. Inside, Griego found Sergeant Joseph Howard and directed Howard’s attention to the defendant. At the time, Howard was talking with Terry. Terry recognized the defendant and asked him if he was the same man who had been with the victim earlier and later had waved at him. The defendant answered, “Yeah.”

Officer Alpha Dacosta testified that fingerprints found on the victim’s stereo cabinet and cigarette lighter matched those of the defendant. Joy Reho, a specialist in blood and body fluid analysis at the state police forensic laboratory, tested the blood on the defendant’s jeans and determined that it could not have come from the defendant and was consistent with the victim’s blood type. Henry Lee, the director of the state police forensic laboratory and a crime scene reconstruction expert, testified that he had examined crime scene photographs and physical evidence to reconstruct the struggle between the victim and his assailant, using blood spatter pattern interpretation. In his opinion, there had been an attack near the bed, characterized by forceful impacts by a fist, kick, or object. At one point, the victim had been on the floor and had tried to get up, smearing blood on a wall with his hand. Blood spatters on the defendant’s sneakers indicated that the sneakers must have been very near the impact, consistent with the defendant having kicked the victim.

Daniel Lowe, the victim’s treating physician, testified that when the victim had been admitted to the hospital, he had abrasions and contusions around his head. X rays revealed facial fractures, including a fracture of the maxillary sinus bone, which is the supporting bone of the eye, and bilateral fractures above the eyes. Lowe opined that it would take a “major blow” transferring a considerable amount of energy to the head to cause these fractures, and stated his belief that the injuries had been caused by blows from a rapidly moving blunt object, fist or kick. Finally, Lowe testified that the defendant had remained in essentially a comatose state from the time of the assault until his death as a result of his injuries on July 9, 1990.

I

The defendant first claims that the trial court improperly denied his motion to suppress, because evidence used at his probable cause hearing and jury trial was the fruit of an unlawful seizure of his person by the police in violation of our state constitution. The main thrust of his suppression claim is that the police effectively seized him, without probable cause, during the course of an investigative interview at the police station. After this alleged seizure, the defendant made evasive statements and manifested certain bizarre behavior, evidence that he asserts should not have been admitted at the probable cause hearing because of the exclusionary rule. Furthermore, the defendant submits that his statements and conduct gave the police probable cause to arrest, and the arrest allowed the police to confiscate his bloodied clothing as part of a search incident to arrest. Therefore, the defendant concludes, the clothing should not have been admissible at trial because it was the fruit of an unlawful seizure.

If the police obtain physical evidence or statements as the result of the seizure of a person without probable cause, in violation of the constitution of Connecticut, article first, §§ 7 and 9, the “fruit of the poisonous tree” doctrine requires that the evidence be suppressed as the product of the unlawful seizure. See State v. Oquendo, 223 Conn. 635, 659-60, 613 A.2d 1300 (1992); State v. Dukes, 209 Conn. 98, 110, 547 A.2d 10 (1988). Therefore, a two-part analysis is required: was the defendant seized; and, if so, was there probable cause for the seizure.

In determining the threshold question of whether there has been a seizure, we examine the effect of the police conduct at the time of the alleged seizure, applying an objective standard. Under our state constitution, a person is seized only if “ ‘ “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” ’ ” State v. Oquendo, supra, 647; see United States v. Mendenhall, 446 U.S. 544, 553-54,100 S. Ct. 1870, 64 L. Ed. 2d 497, reh. denied, 448 U.S. 908,100 S. Ct. 3051, 65 L. Ed. 2d 1138 (1980). Therefore, a seizure may take place under the state constitution even in a case where there is no submission by the defendant to a show of authority or use of physical force by the police. State v. Oquendo, supra, 650-52.

At the suppression hearing, the trial court determined that the defendant had not been seized at any point prior to his formal arrest. The trial court’s determination was a finding of fact that will not be overturned unless it was clearly erroneous. State v. Torres, 197 Conn. 620, 625, 500 A.2d 1299 (1985). When a factual issue implicates a constitutional claim, however, we review the record carefully to ensure that its determination was supported by substantial evidence. State v. Northrop, 213 Conn. 405, 414, 568 A.2d 439 (1990) (reviewing factual findings in fourth amendment claims). At the hearing, Howard testified that his encounter with the defendant had begun in the lobby at 60 Warren Street. Howard approached the defendant, identified himself, and asked if they could talk about the incident. The defendant said that he had been a witness to the assault and would like to assist in the investigation. Howard noticed that the defendant was not wearing a shirt, and had what appeared to be blood on his hands, trousers and sneakers. The defendant told Howard that he had been socializing with the victim in the victim’s apartment at the time of the attack. The defendant stated that two individuals had knocked on the victim’s door, and then attacked the victim when he answered. The defendant also stated that he had a black belt in an unspecified martial art.

After hearing the defendant’s description of the attack by the two assailants, Howard asked the defendant if he would go to the police department to answer more questions. The defendant consented, and rode in the front seat of Howard’s police car. Howard did not place handcuffs on the defendant or restrain him in any manner. At the police station, Howard and the defendant continued their discussion in a private room, and Detective John Fracasso joined them. The room had one window to the outside, and no window on the door. The interview was not tape-recorded. The defendant never expressed any desire to stop the interview, and Howard testified that the subject of whether the defendant could leave if he wished to “never came up.”

The defendant concedes that, up to this point in his encounter with the police, no seizure had taken place. “A person, even if a suspect in a crime, is not in custody every time he is asked questions at a police station.” State v. Northrop, supra, 415; see State v. Williams, 227 Conn. 101, 114-15, 629 A.2d 402 (1993). The defendant asserts, however, that a seizure occurred in the following manner. At a certain point in the interrogation, Howard left the room briefly. Fracasso also left the room and closed the door, leaving the defendant by himself, but either Fracasso or some other officer remained by the door. After speaking with other officers, Howard returned to the room, accompanied by Fracasso.

When the two police officers left the room, the defendant asserts, the nature of the encounter between police and suspect transformed, from a consensual meeting into a coercive interrogation. The defendant claims that he was seized at that time because a reasonable person, wearing clothing covered with blood stains, left alone in the closed interview room to wait for the officers’ return, would have believed that the officers had taken charge of the interrogation, and the person would no longer feel free to leave. This coercive atmosphere, the defendant asserts, brought about his suspicious conduct after the officers returned to the room, conduct that the defendant claims created probable cause to arrest in two relevant respects. First, the defendant’s answers to questions became less credible after the officers returned. Second, when Howard told the defendant that a lamp was believed to have been a weapon used against the victim, the defendant “jumped up to his feet and started crying and hammering his fists on a table . . . and started punching and kicking the walls in the interview room.” The defendant argues that these developments provided the crucial pieces of evidence that gave the police probable cause to arrest him and confiscate his clothing incident to the arrest. We disagree.

The defendant relies on State v. Hoeplinger, 206 Conn. 278, 537 A.2d 1010 (1988), for his argument that he was seized when Howard left the interrogation room. In Hoeplinger, the defendant Hoeplinger called an ambulance to his house to help his wife, who had been bludgeoned and strangled to death. Id., 280. Hoeplinger was covered in blood when the police arrived at his home in the early morning hours. Id., 287. He was taken directly to the police station, never informed that he was free to leave, and remained there for over thirteen hours. Id., 288. Hoeplinger had no personal transportation to return to his home, five miles away, nor did the police offer any. Id. The police preserved vital trial evidence against Hoeplinger by accompanying him to the bathroom and refusing to let him wash his hands. Id., 282-83.

In the present case, the police placed no limitations on the defendant’s freedom. The defendant returned to the scene of the crime, voluntarily spoke with Howard, indicated that he wanted to cooperate, and drove willingly with Howard to the station. The defendant never asked to leave the police station. Unlike the scenario in State v. Hoeplinger, supra, where Hoeplinger was not allowed to use the bathroom alone or wash his hands, there is no evidence that the defendant’s freedom of movement was restrained in any way. The interval between arrival at the station and the point that the defendant was formally placed under arrest was approximately one hour, far less than the thirteen hours in Hoeplinger. The defendant made no claim that the police had physically isolated him by driving him the short distance from 60 Warren Street to the police station. The defendant concedes that he had not been seized before Howard left the interviewing room; we fail to see how this pause in the interrogation took on the coercive significance the defendant ascribes to it. Instead, we conclude that the circumstances experienced by the defendant are indistinguishable from those of other cases where we have held, under the “free to leave” standard, that a specific encounter between police and suspect was entirely consensual. See, e.g., State v. Williams, supra; State v. Damon, 214 Conn. 146, 152-55, 570 A.2d 700, cert. denied, 498 U.S. 819, 111 S. Ct. 65, 112 L. Ed. 2d 40 (1990); State v. Northrop, supra, 414-15; State v. Brown, 199 Conn. 47, 52-54, 505 A.2d 1225 (1986). Accordingly, we hold that the trial court acted properly in finding that there was no seizure under the state constitution until the defendant’s formal arrest. Because we find that the defendant was not seized prior to his arrest, we need not reach the issue of whether there was probable cause to support a prearrest seizure.

II

The defendant next claims that the trial court, at the probable cause hearing mandated by the state constitution, lacked sufficient evidence to find probable cause that the defendant was the person who had killed the victim, or that the defendant had intended to kill the victim. Without such a showing of probable cause, the trial court would not have jurisdiction over the defendant’s person. State v. Mitchell, 200 Conn. 323, 512 A.2d 140 (1986). The state counters that there was a proper showing of probable cause on both issues. We agree with the state.

Prior to November, 1982, the state constitution required indictment by a grand jury before any person could be prosecuted with a crime punishable by death or life imprisonment. Id., 326. “This right to a grand jury determination of probable cause had its origin in our early statutory and common law and became part of our constitutional rights when the first state constitution was adopted in 1818.” Id. In response to long-standing criticism of the secrecy and ex parte nature of the grand jury system; id., 326-27; the state constitution was amended in 1982, replacing the grand jury indictment system “with an open and adversarial probable cause hearing.” Id., 328-29; see Conn. Const., art. I, § 8, as amended by amend. XVII, and implemented by General Statutes § 54-46a.

State v. Mitchell, supra, addressed the question of how, on appeal, a flawed or nonexistent probable cause hearing should affect an otherwise proper subsequent murder conviction. We held that a proper finding of probable cause is a “constitutional prerequisite to the court’s subsequent jurisdiction to hear the trial." Id., 330. Invoking the words of Justice Thurgood Marshall of the United States Supreme Court, we reasoned that “ ‘a right without an effective remedy has little meaning’ ” and therefore appellate review of the defective probable cause hearing would result in reversal of the underlying conviction. Id., 333, quoting Guardians Assn. v. Civil Service Commission, 463 U.S. 582, 626, 103 S. Ct. 3221, 77 L. Ed. 2d 866 (1983) (Marshall, J., dissenting). We have repeatedly reaffirmed the holding that lack of probable cause deprived the court of jurisdiction over the defendant’s person. State v. Marra, 222 Conn. 506, 513, 610 A.2d 1113 (1992); State v. Boyd, 214 Conn. 132, 136, 570 A.2d 1125 (1990); State v. McPhail, 213 Conn. 161, 170, 567 A.2d 812 (1989).

On appellate review of a probable cause hearing, we must examine the evidence presented to the trial court at that hearing and determine whether it was sufficient to warrant a person of reasonable caution to believe that the accused had committed the charged offense. State v. Marra, supra, 513. “The quantum of evidence necessary to establish probable cause at a preliminary hearing is less than the quantum necessary to establish proof beyond a reasonable doubt at trial.” (Internal quotation marks omitted.) State v. Patterson, 213 Conn. 708, 720, 570 A.2d 174 (1990). On the other hand, of course, evidence raising a mere suspicion that the defendant committed a murder would be insufficient to support a finding of probable cause. State v. Marra, supra; State v. Patterson, supra.

The trial court reasonably concluded that there was probable cause to believe that a murder had been committed and that the defendant had committed it. The trial court heard testimony from Mullins, Howard, and Terry, and also received as evidence the autopsy report of the chief medical examiner’s office. From the following evidence, the court could reasonably have found probable cause that the defendant had caused the victim’s death: testimony that the defendant had been seen entering and leaving the apartment building before and after the assault; the defendant’s admission that he had been present in the victim’s apartment at the time of the assault; the defendant’s departure immediately after the attack; the presence of blood on the defendant’s clothing and hands; and the testimony that the defendant had left the crime scene wearing a shirt and returned without a shirt, suggesting the destruction or concealment of evidence. While some of these facts are also consistent with the defendant’s position, brought out through his statement to the police, that two other men had attacked the victim, the trial court was free to disbelieve the defendant’s statement. The state also impeached this statement by introducing evidence that, although the defendant claimed to have run out of the building in pursuit of one of the men and written down a vehicle license number, other witnesses saw the defendant walking, not running, out of the building. Furthermore, the police check of the state motor vehicle records indicated that the license number he claimed to have written down did not exist. The trial court could also have considered the defendant’s reaction to Howard’s mention of the lamp as evidence that the defendant’s version of events was false.

The trial court also reasonably found probable cause that the defendant had intended to kill the victim, based on the following: the autopsy report indicated multiple injuries to the head and neck; the finding in the report that the victim’s death was a homicide; the presence of blood throughout the victim’s apartment; the defendant’s own statement to the police that he was skilled in martial arts; and Mullins’ testimony that there had been a violent struggle in the victim’s apartment. From the detailed description of head and neck injuries in the autopsy report, a reasonable inference could be drawn, supporting the finding of probable cause of intent to kill, that the defendant intentionally aimed his blows at a particularly vital and vulnerable area of the body. See State v. Carpenter, 214 Conn. 77, 82-83, 570 A.2d 203 (1990), on appeal after remand, 220 Conn. 169, 595 A.2d 881 (1991), cert. denied, 502 U.S. 1034, 112 S. Ct. 877, 116 L. Ed. 2d 781 (1992).

Ill

The defendant finally claims that the trial court improperly denied his motion for judgment of acquittal because the state failed to produce sufficient evidence to establish beyond a reasonable doubt that the defendant intended to kill the victim. In reviewing a sufficiency claim, we apply a two part test. “First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Traficonda, 223 Conn. 273, 278, 612 A.2d 45 (1992). In order to be convicted of murder, the defendant must have possessed the specific intent to cause the death of the victim. General Statutes § 53a-54a. To act intentionally, the defendant must have had the conscious objective to cause the death of the victim. General Statutes § 53a-3 (11); State v. Raguseo, 225 Conn. 114, 120, 622 A.2d 519 (1993). “Generally, intent can be proved only by circumstantial evidence. . . . Intent may be, and usually is, inferred from conduct. ... An intent to cause death may be inferred from circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading to and immediately following the death. . . . The use of inferences based on circumstantial evidence is necessary because direct evidence of the accused’s state of mind is rarely available.” (Citations omitted; internal quotation marks omitted.) State v. Carpenter, supra, 82-83.

The defendant, relying on State v. Carpenter, supra, contends that the evidence supporting an inference of intent in the present case is insufficient to prove intent beyond a reasonable doubt because it does not exclude the reasonable hypothesis that the defendant acted with a merely reckless mens rea. In Carpenter, evidence was presented that the defendant Carpenter caused the death of a sick baby in his care by throwing the baby against a hard surface. Expert testimony indicated that the baby had died of a skull injury caused by a single blow of great force. Prior to the baby’s death, but after Carpenter caused the baby’s injuries, he had called the fire department to summon medical help. This court noted that proof beyond a reasonable doubt “is proof which precludes every reasonable hypothesis except that which it tends to support, and is consistent with the defendant’s guilt and inconsistent with any other rational conclusion.” Id., 84. We held that there was insufficient evidence to preclude the rational hypothesis that the defendant, out of frustration, had recklessly caused the death of the baby without any specific intent to kill. Id., 85. We based this conclusion on the lack of evidence of a motive to kill, the expert evidence that there had been a single blow, and the fact that the defendant had summoned medical help for the child immediately after causing the injuries with that single blow. Id., 83-84.

The defendant claims that State v. Carpenter, supra, mandates a reversal of his conviction because there was no evidence of motive, he returned to the scene to assist the authorities, and the victim’s injuries, as characterized by the defendant, were not great. We disagree. The jury in this case, unlike the one in Carpenter, could reasonably have concluded from the state of the apartment and the expert testimony that the defendant pursued the victim through the apartment, striking him repeatedly in the head and neck, a fragile and vital area of the body to choose as a target. The victim was found in the building hallway, bloodied, unconscious, his forehead visibly compressed, outside his blood-soaked apartment, yet there is not the slightest evidence that the defendant made any attempt to help the victim in this case. We conclude that there was sufficient evidence for the jury to find beyond a reasonable doubt that the defendant intended to cause the victim’s death.

The judgment is affirmed.

In this opinion Peters, C. J., and Norcott, J., concurred.

Callahan, J., concurring. I concur in the result.

Borden, J.,

concurring.

I agree with both the reasoning and the result reached by the majority opinion. I write separately, however, regarding the suppression of evidence issue, only to repeat my disagreement with the majority’s reliance on article first, § 9, of the Connecticut constitution.

The majority in this case cites State v. Oquendo, 223 Conn. 635, 659-60, 613 A.2d 1300 (1992), for that reliance. I recognize that, in Oquendo, a majority of that five member panel of this court based its conclusion regarding whether an unconstitutional seizure had taken place upon both article first, § 7, which is our search and seizure provision, and article first, § 9, which is our criminal due process provision.

In State v. Oquendo, supra, I questioned, and I continue to question, the appropriateness of the reliance on § 9, as opposed to § 7. See id., 669 n.l (Borden, J., dissenting). The fragility of the reliance on § 9 is particularly apt, considering the absence in Oquendo of any independent analysis of § 9 and considering the discussion in State v. Lamme, 216 Conn. 172, 579 A.2d 484 (1990), regarding the limited application of article first, § 9, to search and seizure issues.

       General Statutes § 53a-54a (a) provides in relevant part: “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 . . . .”

       The constitution of Connecticut, article first, § 8, as amended by article seventeen of the amendments, provides in relevant part: “No person shall be held to answer for any crime, punishable by death or life imprisonment, unless upon probable cause shown at a hearing in accordance with procedures prescribed by law, except in the armed forces, or in the militia when in actual service in time of war or public danger.”

       General Statutes § 64-46a provides: “(a) No person charged by the state, who has not been indicted by a grand jury prior to May 26, 1983, shall be put to plea or held to trial for any crime punishable by death or life imprisonment unless the court at a preliminary hearing determines there is probable cause to believe that the offense charged has been committed and that the accused person has committed it. The accused person may knowingly and voluntarily waive such preliminary hearing to determine probable cause.
      “(b) Unless waived by the accused person or extended by the court for good cause shown, such preliminary hearing shall be conducted within sixty days of the filing of the complaint or information in superior court. The court shall be confined to the rules of evidence, except that written reports of expert witnesses shall be admissible in evidence and matters involving chain of custody shall be exempt from such rules. No motion to suppress or for discovery shall be allowed in connection with such hearing. The accused person shall have the right to counsel and may attend and, either individually or by counsel, participate in such hearing, present argument to the court, cross-examine witnesses against him and obtain a transcript of the proceedings at his own expense. At the close of the prosecution’s case, if the court finds that, based on the evidence presented by the prosecution, probable cause exists, the accused person may make a specific offer of proof, including the names of witnesses who would testify or produce the evidence offered. The court shall not allow the accused person to present such evidence unless the court determines that such evidence would be sufficient to rebut the finding of probable cause.
      “(c) If, from the evidence presented pursuant to subsection (b) of this section, it appears to the court that there is probable cause to believe that the accused person has committed the offense charged, the court shall so find and approve the continuance of the accused person’s prosecution for that offense. A determination by the court that there is not probable cause to require the accused person to be put to trial for the offense charged shall not operate to prevent a subsequent prosecution of such accused person for the same offense.”

       The defendant’s statements and conduct during the interrogation were introduced into evidence at the probable cause hearing, but not at his jury trial. His bloodied clothing was introduced into evidence at the jury trial, but not at the probable cause hearing.

       The constitution of Connecticut, article first, § 7, provides: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.”

       The constitution of Connecticut, article first, § 9, provides: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.”

       In California v. Hodari D., 499 U.S. 621, 626, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991), the United States Supreme Court abandoned the "free to leave” objective standard of United States v. Mendenhall, 446 U.S. 544, 553-54,100 S. Ct. 1870, 64 L. Ed. 2d 497, reh. denied, 448 U.S. 908, 100 S. Ct. 3051, 65 L. Ed. 2d 1138 (1980), in favor of a narrower standard requiring a show of authority or use of physical force by the police, and submission by the defendant, before there can be a seizure. We rejected this standard under the state constitution in State v. Oquendo, 223 Conn. 635, 652, 613 A.2d 1300 (1992), adhering to the Mendenhall standard for suppression claims brought under the state constitution. Of course, “[i]t is well established that federal constitutional and statutory law establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights.” (Internal quotation marks omitted.) State v. Geisler, 222 Conn. 672, 684, 610 A.2d 1225 (1992). Although the defendant in the present case has brought his claim under both the federal and state constitutions, his argument is predicated on the Oquendo state constitutional standard, and we limit the scope of our review accordingly.

       The defendant does not point to any statements in particular, and the suppression hearing transcript reveals no specific admissions by the defendant, but only general observations by the police officers. For example, Howard testified that “once we returned to the room . . . his actual rendition of [what] occurred just didn’t add up with common sense, didn’t add up with the facts that we knew, and just seemed to be consistent with when I have been deceived in the past.”

       After the defendant’s excited reaction to Howard’s mention of the lamp, Howard and Fracasso left the room a second time. Howard conferred with other officers as to whether there was probable cause to arrest, and then returned to the room and placed the defendant under arrest. The defendant stated that he did not want to be questioned further without the presence of counsel, and the interview ceased. It was then that the search incident to the arrest took place.

       Often, an important factor distinguishing a consensual encounter from a seizure is whether the police expressly informed the defendant that he was free to leave at the outset of the interview. State v. Northrop, 213 Conn. 405, 414-15, 568 A.2d 439 (1990); 2 W. LaFave, Search and Seizure (2d Ed.) § 5.12, p. 390 n.23. Although the police made no such express statement in the present case, the trial court could reasonably have found that both Howard and the defendant understood that their meeting was consensual, and therefore the defendant did not need to be expressly informed that he was free to leave.

       Howard could not remember exactly how long the interview lasted, but testified that it lasted “possibl[y]” less than an hour and he “doubt[ed]” it could have been as much as two hours. Pracasso testified that the time between arrival at the station and arrest was thirty to forty minutes.

       The state introduced a map of the city of New Haven into evidence as an exhibit. An examination of the map indicates that the police station where the defendant was interrogated is only several blocks away from 60 Warren Street, the scene of the crime and the place where the encounter between the police and the defendant began.

       The state argues that this court should reconsider and overrule State v. Mitchell, 200 Conn. 323, 512 A.2d 140 (1986). Because we hold that the trial court properly found probable cause to place the defendant on trial for murder, we need not reach this claim.

       The state did not proffer any evidence as to a possible motive to kill. We note that although motive evidence is probative of the existence or absence of intent; State v. Pinnock, 220 Conn. 765, 790, 601 A.2d 521 (1992); motive evidence is but one factor in determining the intent of the defendant.

       The Connecticut constitution, article first, § 7, provides: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.”

       The Connecticut constitution, article first, § 9, provides: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.”


text:
    Elizabeth Sadloski et al. v. Town of Manchester et al.
    (14748)
    Peters, C. J., Borden, Norcott, Katz and Palmer, Js.
    Argued October 27—
    decision released December 7, 1993

      Kathleen Eldergill, for the appellant (plaintiff Virginia Celinski).

      William J. Shea, assistant town attorney, for the appellee (named defendant).

      Karen P. Blado, with whom was Ann E. Lynch, for the appellees (defendants The Mall at Buckland Hills Partnership and Homart Manchester Investment Company).
   Per Curiam.

The dispositive issue in this appeal is whether a trial court has subject matter jurisdiction to determine the merits of a taxpayer action without first deciding whether the taxpayer has standing to pursue such a claim. A number of taxpayers of the town of Manchester brought this action challenging the enforceability of a tax assessment agreement between the named defendant, the town of Manchester, and the defendant The Mall at Buckland Hills Partnership. The defendant Homart Manchester Investment Company is an investor in The Mall at Buckland Hills Partnership. The plaintiffs alleged that the agreement violated the provisions of General Statutes § 12-65b and public policy by depriving them of their constitutional rights to equal protection. The trial court, O’Neill, J., dismissed the action as to all the plaintiffs except Virginia Celinski. The trial court, Aurigemma, J., thereafter granted the defendants’ motion for judgment of dismissal with respect to Celinski (hereinafter the plaintiff). The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We remand for further proceedings.

The trial court dismissed the plaintiffs cause of action for failure to have made out a prima facie case pursuant to Practice Book § 302. The court held: “Even if the court were to find that the plaintiff submitted sufficient evidence to prove her own standing, the plaintiff must make out a prima facie case with respect to her substantive claims in order to defeat a Motion for Judgment.” (Emphasis in original.) Considering the merits of the plaintiffs substantive claims, the court ruled that she had failed to make out a prima facie case of the invalidity of the tax assessment agreement.

In her appeal to this court, the plaintiff urges reversal of the trial court’s substantive conclusion. The defendants, however, have raised the plaintiff’s failure to prove her standing as an alternative ground for sustaining the trial court’s judgment of dismissal. We agree with the defendants that, without a finding with respect to the plaintiff’s standing, the trial court had no authority to consider the plaintiff’s case on its merits. We disagree, however, that the present record is sufficient for us to determine whether the plaintiff had standing, and we therefore cannot sustain the judgment of dismissal.

The plaintiff’s status as a taxpayer does not automatically give her standing to challenge alleged improprieties in the conduct of the defendant town. Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 549, 427 A.2d 822 (1980); Bell v. Planning & Zoning Commission, 174 Conn. 493, 497-98, 391 A.2d 154 (1978); Belford v. New Haven, 170 Conn. 46, 52-53, 364 A.2d 194 (1975); Gannon v. Sanders, 157 Conn. 1, 6-9, 244 A.2d 397 (1968); Truesdale v. Greenwich, 116 Conn. 426, 430-32, 165 A. 201 (1933). The plaintiff must also “allege and demonstrate that the allegedly improper municipal conduct cause[d her] to suffer some pecuniary or other great injury.” (Internal quotation marks omitted.) Alarm Applications Co. v. Simsbury Volunteer Fire Co., supra; Belford v. New Haven, supra, 53; Atwood v. Regional School District No. 15, 169 Conn. 613, 617, 363 A.2d 1038 (1975); Bassett v. Desmond, 140 Conn. 426, 430, 101 A.2d 294 (1953); see 18 E. McQuillin, Municipal Corporations (3d Ed. Rev. 1993) §§ 52.12 through 52.14, 52.24. It is not enough for the plaintiff to show that her tax dollars have contributed to the challenged project; Bell v. Planning & Zoning Commission, supra, 498; Gannon v. Sanders, supra, 7; the plaintiff must prove that the project has directly or indirectly increased her taxes; Atwood v. Regional School District No. 15, supra, 617; or, in some other fashion, caused her irreparable injury in her capacity as a taxpayer. Bassett v. Desmond, supra; Cassidy v. Waterbury, 130 Conn. 237, 245, 33 A.2d 142 (1943).

The parties cannot waive a showing that the plaintiff has standing because, in the absence of standing, the court lacks subject matter jurisdiction to determine the merits of the case. Tomlinson v. Board of Education, 226 Conn. 704, 717-18, 629 A.2d 333 (1993); Stroiney v. Crescent Lake Tax District, 205 Conn. 290, 294, 533 A.2d 208 (1987); Belford v. New Haven, supra, 52-53. “Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy. . . . Standing is not a technical rule intended to keep aggrieved parties oút of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented. ...” (Citations omitted; internal quotation marks omitted.) Unisys Corp. v. Department of Labor, 220 Conn. 689, 693, 600 A.2d 1019 (1991).

A possible absence of subject matter jurisdiction must be addressed and decided whenever the issue is raised. The parties cannot confer subject matter jurisdiction on the court, either by waiver or by consent. Serrani v. Board of Ethics, 225 Conn. 305, 308, 622 A.2d 1009 (1993); In re Judicial Inquiry No. 85-01, 221 Conn. 625, 629, 605 A.2d 545 (1992); Castro v. Viera, 207 Conn. 420, 429-30, 541 A.2d 1216 (1988); Practice Book §§ 143,145. The trial court in this case should not have considered the merits of the plaintiffs case without having first made a finding about whether she had standing and, consequently, whether the court had subject matter jurisdiction.

We cannot supply the finding that the trial court failed to make. Although the plaintiff presented her own testimony and that of an expert witness to establish that her property taxes had increased subsequent to the implementation of the tax assessment agreement, the defendants denied that there was a causal relationship between these two events and represented to the court that they were prepared to offer evidence on that issue. Each of the parties bears some responsibility for the fact that the court improperly rendered a judgment without hearing all the relevant evidence. In the interests of justice, therefore, this case must be remanded to the trial court for further proceedings to resolve the issue of the plaintiffs standing to challenge the validity of the tax assessment agreement.

The judgment is set aside and the case is remanded for further proceedings in accordance with this opinion.

       The original plaintiffs were Elizabeth Sadloski, Virginia Celinski, Harvey Steeves, Joyce R. Senkbeil and Adele Katkauskas, all of whom identified themselves as residents, voters and taxpayers of the town of Manchester.

       General Statutes § 12-65b provides: “agreements between municipality AND OWNER OR LESSEE OF REAL PROPERTY OR AIR SPACE FIXING THE ASSESSMENT OF SUCH PROPERTY OR AIR SPACE, (a) Any municipality may, by affirmative vote of its legislative body, enter into a written agreement with any party owning or proposing to acquire an interest in real property in such municipality, or with any party owning or proposing to acquire an interest in air space in such municipality, or with any party who is the lessee of, or who proposes to be the lessee of, air space in such municipality in such a manner that the air space leased or proposed to be leased shall be assessed to the lessee pursuant to section 12-64, fixing the assessment of the real property or air space which is the subject of the agreement, and all improvements thereon or therein and to be constructed thereon or therein, subject to the provisions of subsection (b) of this section, (1) for a period of not more than seven years, provided the cost of such improvements to be constructed is not less than three million dollars, (2) for a period of not more than two years, provided the cost of such improvements to be constructed is not less than five hundred thousand dollars or (3) to the extent of fifty per cent of such increased assessment, for a period of not more than three years, provided the cost of such improvements to be constructed is not less than one hundred thousand dollars.
      “(b) The provisions of subsection (a) of this section shall only apply if at least one of the following requirements is satisfied: (i) The improvements are for office use; (ii) the improvements are for retail use; (iii) the improvements are for permanent residential use; (iv) the improvements are for transient residential use; (v) the improvements are for manufacturing use; (vi) the improvements are for warehouse, storage or distribution use; (vii) the improvements are for structured multilevel parking use necessary in connection with a mass transit system.”

       The plaintiffs claimed that the tax assessment agreement violated the equal protection clause of the fourteenth amendment to the United States constitution as well as the public emoluments clause contained in article first, § 1, of the Connecticut constitution.

       This dismissal has not been appealed.

       Practice Book § 302 provides: “dismissal in court cases for failure TO MAKE OUT A PRIMA FACIE CASE
      “If, on the trial of any issue of fact in a civil action tried to the court, the plaintiff has produced his evidence and rested his cause, the defendant may move for judgment of dismissal, and the court may grant such motion, if in its opinion the plaintiff has failed to make out a prima facie case. The defendant may offer evidence in the event the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made.”