author: Peters, C. J.

text:
    State of Connecticut v. Robert Somerville
    (13536)
    (13550)
    Peters, C. J., Shea, Callahan, Covello and Hull, Js.
    Argued February 7
    decision released April 3, 1990

      C. Robert Satti, Sr., state’s attorney, with whom was-Lawrence J. Tytla, assistant state’s attorney, for the appellant-appellee (state).

      Robert J. Sweeney, special public defender, with whom, on the brief, was Kathleen M. Harkins, for the appellee-appellant (defendant).
   Peters, C. J.

The principal issue in this case is whether General Statutes § 21a-278 (a), the dependency-producing drug statute applicable to persons who are not drug-dependent, when viewed either as a statute imposing an indeterminate sentence or as a statute imposing a definite sentence, requires the imposition of a maximum term of life imprisonment upon conviction. A jury found the defendant, Robert Somerville, guilty of possession with intent to sell cocaine in a freebase form by a person who is not drug-dependent in violation of § 21a-278 (a). The trial court thereupon sentenced him to a term of imprisonment of not less than thirteen nor more than twenty-six years. Having asserted at the sentencing hearing that the relevant statutory provisions required imposition of an indeterminate life sentence, the state, with the permission of the trial court, has appealed the trial .court’s refusal to impose the alleged mandatory maximum sentence. The defendant has also appealed, claiming that the trial court erred in refusing to render a judgment of acquittal because of evidentiary insufficiency and that improper remarks by the prosecutor during closing argument deprived the defendant of a fair trial. Because the trial court failed to impose a definite sentence, we find error in part on the state’s appeal. We find no error on the defendant’s appeal. Accordingly, we remand the case to the trial court for resentencing.

The jury could reasonably have found the following facts. On March 9,1988, the defendant and Christopher Bonapart were visiting Vanessa Marshall at her residence in New London. At that time, Marshall observed the defendant and Bonapart “doing business,” i.e., exchanging money for small vials with blue caps that the defendant removed from a plastic bag he kept in his pocket. Later that evening, Joseph Wilson arrived at Marshall’s residence, and subsequently got into an argument with the defendant, which escalated into a fight when Wilson threatened to call the police. As the defendant left the premises, he threw a clear plastic bag containing small vials with blue caps, identical to that he had kept in his pocket, into the rear yard of a neighboring house, near the stairs. The defendant then bent down near some garbage cans located at that same address.

Two police officers responded separately to Wilson’s report of a disturbance in progress at the Marshall residence. Upon his arrival, the first officer observed Wilson moving around near the Marshall residence, and the defendant and Bonapart, standing in front of the neighboring house. As a physical confrontation seemed imminent, the officer restrained Wilson and then secured him in the back of his vehicle. The defendant was similarly restrained in a different vehicle by the second officer, after that officer had performed a pat down search of the defendant. Because of information elicited from the various conversations with those on the scene, the officers asked the occupants of the neighboring house about their knowledge of the sale of drugs in the area.

The two officers subsequently proceeded to the rear porch area adjacent to the neighboring house. Lifting up a garbage can, they found, underneath, a clear plastic bag containing $599 in cash and 69 small vials with blue caps that later tested positive for crack cocaine. A subsequent search of the defendant failed to reveal any drugs or money on his person. The officers did, however, find a large amount of money on Bonapart and a small purse containing seven vials of crack cocaine in the diaper of Marshall’s one year old child. Marshall first claimed, but later denied, that the defendant was the source of this cocaine. The discovery of the vials led to the arrests of the defendant, Bonapart and Marshall. The police arrested Wilson for breach of the peace.

I

We consider first the state’s claim that the trial court erred when it sentenced the defendant to a term of imprisonment of not less than thirteen nor more than twenty-six years, rather than to a maximum term of life imprisonment. The state maintains that the court correctly interpreted § 2 la-278 (a) as requiring the imposition of an indeterminate sentence, but that the statute mandates the enhanced penalty of a mandatory life sentence for those persons, trafficking in illegal drugs, who themselves are not drug-dependent.

During the pendency of the present appeals, we expressly held, in State v. Delossantos, 211 Conn. 258, 284, 559 A.2d 164, cert. denied, U.S. , 110 S. Ct. 188, 107 L. Ed. 2d 142 (1989), that General Statutes § 53a-35a, which instituted a definite sentencing scheme for any felony committed on or after July 1, 1981, “implicitly repealed the indeterminate sentencing aspect of § 21a-278 (a).” (Emphasis in original.) The state now urges us either to overturn State v. Delossantos, supra, or to hold, if a definite sentencing scheme is now mandated, that § 21a-278 (a) still requires the imposition of a maximum term of life imprisonment in the circumstances of this case. We find no merit in either of these contentions.

A

The state’s argument that we should reconsider our holding in State v. Delossantos, supra, rests on its analysis of the statutory history of § 21a-278 (a). The state maintains that the legislature manifested its intention to carve out an exception for indeterminate sentencing under § 21a-278 (a) by retaining existing sentencing language subsequent to the enactment of the definite sentencing statute, § 53a-35a.

Section 21a-278 (a) provides that any person convicted of possession with intent to sell one-half gram or more of cocaine in a free-base form “who is not, at the time of such action, a drug-dependent person, shall be imprisoned for a minimum term of not less than five years nor more than twenty years; and, a maximum term of life imprisonment.” As the state notes, General Statutes § 19-480a (a), the predecessor statute to § 21a-278 (a), contained a sentencing provision identical to that currently set out in § 21a-278 (a), a sentencing provision that clearly contemplated an indeterminate sentencing scheme. See Myers v. Manson, 192 Conn. 383, 385, 472 A.2d 759 (1984). In 1980, however, “the legislature passed what is now General Statutes § 53a-35a, which became effective on July 1, 1981 .... This statute instituted definite sentencing and effectively eliminated parole in Connecticut.” State v. Dupree, 196 Conn. 655, 659, 495 A.2d 691, cert. denied, 474 U.S. 951, 106 S. Ct. 318, 88 L. Ed. 2d 301 (1985).

Despite the legislative shift to definite sentencing adopted in 1980, and the publication of our decision in State v. Dupree, supra, in 1985, the legislature retained the indeterminate sentencing language of § 21a-278 (a) when it amended that statute in 1987. Public Acts 1987, No. 87-373, § 2. The state urges us to infer that, in so doing, the legislature intended, sub silentio, to create a statutory exception to § 53a-35a. For this reason, the state contends that we were mistaken in concluding, in State v. Delossantos, supra, 284, that there was an irreconcilable conflict between the sentencing provisions of §§ 21a-278 (a) and 53a-35a that had to be resolved in favor of requiring the imposition of a definite sentence. We disagree.

Although well established principles of statutory construction require us to ascertain and give effect to the apparent intent of the legislature; State v. Grullon, 212 Conn. 195, 199, 562 A.2d 481 (1989); State v. Blasko, 202 Conn. 541, 553, 522 A.2d 753 (1987); “[i]t is also a rule of statutory construction that unless there is ambiguity in the language of a statute, there is no occasion to look to the legislative intent.” State v. Dupree, supra, 660; In re Petition of State’s Attorney, Cook County, Illinois, 179 Conn. 102, 107, 425 A.2d 588 (1979). A facial comparison of § 21a-278 (a) with § 53a-35a reveals the existence of a conflict between the former’s provision requiring “a minimum term of not less than five years nor more than twenty years,” and the latter’s institution of a definite sentencing scheme. See State v. Jenkins, 198 Conn. 671, 680, 504 A.2d 1053 (1986); State v. Dupree, supra, 659. The irreconcilability of this conflict was the precise basis for our holding in State v. Delossantos, supra. We presumed, furthermore, that in enacting § 53a-35a, the legislature acted with the knowledge of existing relative statutes and with the intention of creating one consistent body of law; id., 283, and cases therein cited; and therefore would have expressly excepted § 21a-278 (a) from definite sentencing had it intended to accomplish such a result.

The state would have us draw precisely the opposite inference from the reenactment of § 21-278 (a) in 1987. We decline to do so for two reasons. First, principles of stare decisis require us to adhere to the precedent set by State v. Delossantos, supra, unless there is a compelling reason to overrule it. Ralston Purina Co. v. Board of Tax Review, 203 Conn. 425, 439, 525 A.2d 91 (1987); State v. Castonguay, 194 Conn. 416, 435, 481 A.2d 56 (1984); Society for Savings v. Chestnut Estates, Inc., 176 Conn. 563, 570, 409 A.2d 1020 (1979). Second, the state’s construction of § 2la-278 (a) disregards the principle that penal statutes must be construed strictly against the state and in favor of the accused; State v. Breton, 212 Conn. 258, 269, 562 A.2d 1060 (1989); State v. Whiteman, 204 Conn. 98, 101, 526 A.2d 869 (1987); State v. Edwards, 201 Conn. 125, 132, 513 A.2d 669 (1986). This principle enjoins us to avoid imposing criminal liability where the legislature has not expressly so intended. State v. Breton, supra, 268-69; State v. Grullon, supra, 200; State v. Hufford, 205 Conn. 386, 392, 533 A.2d 866 (1987).

We are equally unpersuaded by the state’s alternate argument, that § 53a-35a (7) provides a statutory exception from definite sentences for unclassified felonies, such as the narcotics offense of § 21a-278 (a). For unclassified felonies, such as § 21a-278 (a), § 53a-35a (7) incorporates by reference, as a definite sentence, “a term in accordance with the sentence specified in the section of the general statutes that defines the crime.” We considered this precise issue in State v. Delossantos, supra, and concluded that the minimum and maximum terms set by § 21a-278 (a) complied with the mandate of § 53a-35a (7) and that the phrase in § 21a-278 (a) referring to a minimum of “not more than twenty years” had been impliedly repealed by the enactment of § 53a-35a. We held that our authority to excise the inconsistent portion of a statute, if that portion is sever-able from the remainder of the statute, is analogous to our similar authority over a statute that is unconstitutional in part. State v. Delossantos, supra, 284; and see Harper v. Tax Commissioner, 199 Conn. 133, 141, 506 A.2d 93 (1986); State v. Dupree, supra, 660. The state has presented no persuasive argument why we should not adhere to this ruling.

B

The conclusion that § 21a-278 (a) requires a court to impose a definite sentence leaves open the question of what the statutory prescription for that definite sentence may reasonably be construed to be. By its terms, § 21a-278 (a) authorizes a life sentence as the maximum term of imprisonment that may be imposed upon a person convicted of violating the statute. The state asserts that imposition of the maximum penalty is not only permissible but is statutorily mandated for each and every such conviction, regardless of the particular circumstances or of mitigating factors surrounding any individual violation. In the context of a definite sentencing scheme, the state thus envisions that anyone sentenced in accordance with the penalty provisions of § 2 la-278 (a) will necessarily receive a term of imprisonment of life to be suspended after a certain period of years, which term shall be not less than the statutory minimum. The defendant counters that, in compliance with the definite sentencing requirement of § 53a-35a, the proper construction of the remaining penalty provisions of § 21a-278 (a) is a definite sentence anywhere within the statutory range of five years to life. We agree with the defendant.

The well established principles that counsel narrow construction of a penal statute compel the adoption of the definite sentencing scheme allowing a trial court to impose a maximum sentence of less than life imprisonment. We impliedly endorsed such a construction of § 21a-278 (a) in State v. Delossantos, supra, 285, when we held that “the trial court complied with the definite sentencing requirement of § 53a-35a, as applied to § 2 la-278 (a), by sentencing the defendant to a term of twenty-three years, execution suspended after fifteen years, and five years probation.”

In its argument to the contrary, the state principally relies on the use of the word “shall” in § 2la-278 (a) as evidence of a legislative intention that the maximum term of life imprisonment is mandatory. We have indeed often held that the word “shall” imposes a mandatory statutory requirement in a criminal statute. State v. Williams, 205 Conn. 456, 477, 534 A.2d 230 (1987); State v. Cook, 183 Conn. 520, 522-23, 441 A.2d 41 (1981); State v. Schaeffer, 5 Conn. App. 378, 388, 498 A.2d 134 (1985). Nonetheless, we are unpersuaded that the legislature intended to make a life sentence mandatory when it described such a sentence as a maximum and coupled it with a statutory option for the imposition of a “minimuíh term of not less than five years.” As we have noted above, in order to reconcile the penalty provisions of § 21a-278 (a) with the definite sentence requirement of § 53a-35a, § 21a-278 (a) now provides, in effect, that a person convicted under its auspices “shall be imprisoned for a minimum term of not less than five years . . . and, a maximum term of life imprisonment.” Like other unclassified felonies, § 21a-278 (a) merely delineates the applicable statutory limits of the penalty within which the trial court must exercise its discretion to impose a definite sentence. See General Statutes § 2 la-278 (b) (“for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years”); General Statutes § 53-21 (“shall be . . . imprisoned not more than ten years”).

Moreover, the legislative history of § 21a-278 (a), to which the state has earlier called our attention, undermines the state’s argument in this instance. The language of § 21a-278 (a) has, from the beginning, permitted a maximum term of life imprisonment that has never been thought to be mandatory. This same language was reenacted without change in 1987 by Public Acts 1987, No. 87-373, § 2. We discern no pressing reason to depart from the precedent established by this unbroken legislative history and conclude, accordingly, that the penalty language provided for in § 2 la-278 (a) establishes only a statutory range within which the trial court may exercise its discretion to impose a definite sentence.

The record in this case makes it clear, however, that the trial court exercised its sentencing discretion without having had the benefit of our intervening decision in State v. Delossantos, supra. The indeterminate sentence it imposed, a term of imprisonment of not less than thirteen nor more than twenty-six years, cannot be permitted to stand. We therefore remand for the imposition of a definite sentence in accordance with today’s holding.

II

The defendant’s appeal preserves two issues for our review. The defendant challenges the sufficiency of the evidence to support his conviction and the propriety of remarks made by the prosecutor during closing argument. We find neither claim of error persuasive.

A

We first address the defendant’s claim of evidentiary insufficiency. At the close of the state’s case, the defendant moved for a judgment of acquittal, on the ground that the state had adduced no evidence of his possession of the 69 vials of crack cocaine that were at issue. He claimed that there was no direct proof of his actual possession of the crack cocaine, and that the circumstantial evidence failed to prove his constructive possession beyond a reasonable doubt. When the trial court denied the defendant’s motion, the defendant rested his case without presenting any evidence of his own. The defendant now renews this insufficiency claim on appeal. While we acknowledge that the evidence linking the crack cocaine to the defendant was largely circumstantial, we conclude nonetheless that it was sufficient to support his conviction.

“ Tn accordance with well established principles, appellate analysis of a claim of insufficiency of the evidence requires us to undertake a twofold task. “We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the jury’s verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have con-eluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt .... In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.” State v. Sinclair, 197 Conn. 574, 576, 500 A.2d 539 (1985), and cases there cited.’ State v. Rollinson, 203 Conn. 641, 665-66, 526 A.2d 1283 (1987).” State v. Robinson, 213 Conn. 243, 254, 567 A.2d 1173 (1989). “So far as probative force is concerned, there is no legal distinction between direct and circumstantial evidence.” State v. Gaynor, 182 Conn. 501, 506 n.3, 438 A.2d 749 (1980).

The facts underlying this claim of error are not in dispute; it is rather the resultant inferences drawn by the trier of fact that the defendant now challenges as improperly based on speculation and conjecture. See State v. Gaynor, supra, 503. It is clear that, at the time of his arrest, the defendant had on his person neither drugs nor a large amount of money commonly associated with such illegal dealings. The state, however, was not required to prove that the defendant had actual physical possession of the 69 vials of crack cocaine that the police officers found underneath the garbage can at the neighboring house. The state only had to prove that the defendant “had exercised dominion and control over it and had knowledge of its presence and character.” State v. Reddick, 207 Conn. 323, 328, 541 A.2d 1209 (1988); State v. Alfonso, 195 Conn. 624, 633, 490 A.2d 75 (1985); State v. Williams, 169 Conn. 322, 335, 363 A.2d 72 (1975); State v. Parent, 8 Conn. App. 469, 473, 513 A.2d 725 (1986). Nonetheless, “[wjhere [, as here,] the defendant is not in exclusive possession of the premises where the narcotics are found, ‘it may not be inferred that [the defendant] knew of the presence of the narcotics and had control of them, unless there are other incriminating statements or circumstances tending to buttress such an inference.’ . . .” (Citations omitted.) State v. Alfonso, supra; State v. Santiago, 17 Conn. App. 273, 278, 552 A.2d 438 (1989).

Despite the defendant’s argument to the contrary, “circumstances tending to buttress such an inference” of his guilt are to be found in the testimony of Marshall and Wilson. It should first be noted that Marshall observed the defendant and Bonapart, at her residence, “doing business,” which she testified was the sale of crack cocaine contained in small vials with blue caps that the defendant would remove from a plastic bag that he kept in his pocket. Wilson’s independent observations corroborated this testimony at trial. Marshall also testified that she saw the defendant throw this same plastic bag filled with small vials with blue caps near the rear stairs of the neighboring house, where the police subsequently found the crack vials at issue. Furthermore, Wilson testified that the defendant was bending down somewhere near the garbage can under which the illegal drugs were found.

It is no answer to this evidentiary showing to rely on inconsistencies in the stories told by the witnesses who offered this incriminating evidence. It is equally unavailing that Marshall’s status as a codefendant, as well as her clearly stated self-interest in testifying, and Wilson’s earlier altercation with the defendant undermine the probative value of their respective testimony. These assertions all go to the weight that the trier of fact may properly assign to the testimony presented. As we have often noted, in assessing the sufficiency of the evidence to convict, we do not sit as a thirteenth juror assessing the credibility of the testimony given by witnesses for the state. See State v. Robinson, supra, 256; State v. Reddick, supra, 328; State v. Crump, 201 Conn. 489, 491, 518 A.2d 378 (1986); State v. Haddad, 189 Conn. 383, 389, 456 A.2d 316 (1983); State v. Gaynor, supra, 504. From the evidence elicited at trial, we conclude that the jury reasonably could have concluded that the defendant was guilty of violating § 21a-278 (a) beyond a reasonable doubt.

B

We turn finally to the defendant’s claim that the prosecutor’s improper remarks during closing argument deprived him of his constitutional right to a fair trial in contravention of article first, § 8 of the Connecticut constitution and the fourteenth amendment to the federal constitution. Specifically, the defendant claims that the prosecutor improperly commented upon facts not in evidence, and expressed his personal opinion as to the credibility óf a key witness. Having conceded, as he must, that he failed properly to preserve these claims at trial, the defendant now seeks review under the “exceptional circumstances” doctrine of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). Correctly identified, however, his unpreserved evidentiary claims of prosecutorial misconduct merely masquerade as constitutional claims, and therefore must be summarily dismissed. State v. Golding, 213 Conn. 233, 243, 567 A.2d 823 (1989).

While we do not deny that prosecutorial misconduct of constitutional proportions may arise during the course of closing argument, thereby implicating the fundamental fairness of the trial itself; State v. Williams, 204 Conn. 523, 539, 529 A.2d 653 (1987); State v. Pelletier, 196 Conn. 32, 33-34, 490 A.2d 515 (1985); we have long held that Evans review of such a claim is unavailable where the claimed misconduct was not blatantly egregious and merely consisted of isolated and brief episodes that did not reveal a pattern of conduct repeated throughout the trial. State v. Rodgers, 207 Conn. 646, 654, 542 A.2d 1136 (1988); State v. Williams, supra, 537; State v. Chace, 199 Conn. 102, 107-108, 505 A.2d 712 (1986); State v. Tyler-Barcomb, 197 Conn. 666, 672-74, 500 A.2d 1324 (1985), cert. denied, 475 U.S. 1109, 106 S. Ct. 1518, 89 L. Ed. 2d 916 (1986). Although certain remarks made by the prosecutor, from hindsight, may be deemed imprudent, such isolated and brief episodes as occurred here fail to implicate the denial of the defendant’s constitutional right to due process. We decline, accordingly, to review these claims of error.

There is error in part on the state’s appeal, the judgment is set aside insofar as it sentences the defendant to an indeterminate term of imprisonment and the case is remanded to the trial court for resentencing in accordance with this opinion; there is no error on the defendants’ appeal.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1987) § 21a-278 (a), as amended by Public Acts 1987, No. 87-373, § 2, provides: “(Formerly Sec. 19-480a). penalty foe ILLEGAL MANUFACTURE, DISTRIBUTION, SALE, PRESCRIPTION OR ADMINISTRATION BY non-drug-dependent person, (a) Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person one or more preparations, compounds, mixtures or substances containing an aggregate weight of one ounce or more of heroin, methadone or cocaine or an aggregate weight of one-half gram or more of cocaine in a free-base form or a substance containing five milligrams or more of lysergic acid diethylamide, except as authorized in this chapter, and who is not, at the time of such action, a drug-dependent person, shall be imprisoned for a minimum term of not less than five years nor more than twenty years; and, a maximum term of life imprisonment. The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years or, (2) such person’s mental capacity was significantly impaired but not so impaired as to constitute a defense to prosecution.”

       In the second count of the substitute information, the state had charged the defendant with breach of peace in violation of General Statutes § 53a-181 (a) (2). The jury, however, acquitted the defendant of this charge.

       At oral argument, the defendant withdrew, for lack of an adequate record, a third claim of error alleging ineffective assistance of counsel.

       General Statutes § 53a-35a provides: “imprisonment for any felony COMMITTED ON OR AFTER JULY 1, 1981: DEFINITE SENTENCES; TERMS authorized. For any felony committed on or after July 1, 1981, the sentence of imprisonment shall be a definite sentence and the term shall be fixed by the court as follows: (1) For a capital felony, a term of life imprisonment without the possibility of release unless a sentence of death is imposed in accordance with section 53a-46a; (2) for the class A felony of murder, a term not less than twenty-five years nor more than life; (3) for a class A felony other than murder, a term not less than ten years nor more than twenty-five years; (4) for a class B felony, a term not less than one year nor more than twenty years, except that for a conviction under section 53a-55a, 53a-59 (a) (1), 53a-59a, 53a-70a, 53a-94a, 53a-101 (a) (1) or 53a-134 (a) (2), the term shall be not less than five years nor more than twenty years; (5) for a class C felony, a term not less than one year nor more than ten years, except that for a conviction under section 53a-56a, the term shall be not less than three years nor more than ten years; (6) for a class D felony, a term not less than one year nor more than five years, except that for a conviction under section 53a-60b, the term shall be not less than two years nor more than five years, and for a conviction under section 53a-60c, the term shall be not less than three years nor more than five years; (7) for an unclassified felony, a term in accordance with the sentence specified in the section of the general statutes that defines the crime.”

       Public Acts 1987, No. 87-373, § 2, merely amended General Statutes | 21a-278 (a) to make its provisions applicable to an aggregate weight of one-half gram or more of cocaine in a free-base form, and in no way addressed the penalty that should be applicable.

       General Statutes § 53a-35a (7) provides that “for an unclassified felony, a term [of imprisonment be imposed] in accordance with the sentence specified in the section of the general statutes that defines the crime.”

       In State v. Dupree, 196 Conn. 655, 662, 495 A.2d 691, cert. denied, 474 U.S. 951, 106 S. Ct. 318, 88 L. Ed. 2d 301 (1985), we held, contrary to the state’s assertion in the instant appeal, that the legislature’s insertion of the penalty of life imprisonment directly into General Statutes § 53a-54d, our arson murder statute, “removed the arson murder statute from the ambit of General Statutes § 53a-54a (c), which punishes murder as a class A felony, and placed it squarely within the definition of an unclassified felony.”

       The defendant conceded at oral argument that, given our determination in State v. Delossantos, 211 Conn. 258, 284, 559 A.2d 164, cert. denied, U.S. , 110 S. Ct. 188, 107 L. Ed. 2d 142 (1989), that the indeterminate sentencing language is severable from the remaining statutory penalty provisions, General Statutes § 21a-278 (a) cannot be constitutionally attacked as void for vagueness. See United States v. Batchelder, 442 U.S. 114, 123, 99 S. Ct. 2198, 60 L. Ed. 2d 755 (1979); State v. Thompson, 197 Conn. 67, 78-79, 495 A.2d 1054 (1985).

       Our remand for resentencing makes it unnecessary for us to consider whether, as the defendant urges, the imposition of a life sentence upon a person who is not drug-dependent, for trafficking in one-half gram of cocaine in free-base form would be unconstitutional either as cruel and unusual punishment under article first, § 8 of the Connecticut constitution and the eighth amendment to the United States constitution, or as violative of the guarantee of equal protection under the fourteenth amendment to the federal constitution.

       The defendant argues first that Marshall’s testimony is unreliable because she falsely informed the police that the defendant had procured the additional crack cocaine vials found in her infant’s diaper, a statement which she later recanted at trial. The defendant next draws our attention to the seeming inconsistency between Wilson’s assertion that the defendant bent down near the garbage can at the rear of the neighboring house and Marshall’s conflicting testimony that, having seen the defendant throw the plastic bag of crack vials toward the stairs of the neighboring house, she subsequently never observed him go farther than a few steps into the front yard at the neighboring house. The defendant also highlights the seeming inconsistencies found in Wilson’s testimony with respect to the amount of time Wilson actually spent at Marshall’s residence on the day in question and thus his availability to observe the defendant’s alleged drug transactions. He also questions Wilson’s ability to observe the precise location of the garbage can by which the defendant was allegedly bending down.

       As the defendant proffers no distinct analysis under the Connecticut constitution as pertains to his claim of prosecutorial misconduct, we note that the due process provisions of the United States and Connecticut constitutions generally have the same meaning and impose similar constitutional limitations. See In re Dodson, 214 Conn. 344, 362 n.15, 572 A.2d 328 (1990); State v. Brigandi, 186 Conn. 521, 542, 442 A.2d 927 (1982).

       This claim of prosecutorial misconduct is twofold: that the prosecutor reflected on the reasons why the residents of the neighboring house refused to testify at trial, thereby inciting the prejudices and emotions of the jury by appealing to similarly felt fears of reprisals; and that his remarks concerning the nonidentifiable fingerprints on the 69 crack cocaine vials amounted to his becoming a witness for the state.


source: Caselaw Access Project

license: Public Domain

text:
    Arthur Deschnow v. City of Stamford
    (13872)
    Peters, C. J., Shea, Callahan, Glass and Hull, Js.
    Argued March 1
    decision released April 3, 1990

      John W. Greiner, for the appellant (defendant).

      Gerald F. Stevens, for the appellee (plaintiff).
   Peters, C. J.

This appeal concerns the eligibility of disabled members of municipal police and fire departments, who are entitled to compensation under General Statutes § 7-433C, the Heart and Hypertension Act, to receive insurance coverage from their municipal employers in accordance with General Statutes § 31-284b (a). On the basis of stipulated facts, a workers’ compensation commissioner determined that the plaintiff, Arthur Deschnow, was entitled to an award of § 31-284b (a) benefits. The defendant, the city of Stamford, unsuccessfully petitioned to have this determination overturned by the compensation review division. The defendant thereafter took a further appeal to the Appellate Court, which this court transferred here pursuant to Practice Book § 4023. We find no error.

As stipulated, the plaintiff was a regular member of the fire department of the defendant city, who had passed the requisite physical examination at the time of his employment. Because the plaintiff thereafter manifested symptoms of heart disease and hypertension, a compensation commissioner awarded him benefits under § 7-433c and related medical expenses. Subsequently, the plaintiff qualified for a supplemental award, under General Statutes § 31-308 (d), of “234 weeks of compensation representing a 30% permanent partial impairment of the cardiovascular system at the rate of $397.00 per week commencing on October 10, 1986 . . . .’’On September 30, 1987, the plaintiff retired on a work related disability pension because of his heart disease.

Upon the plaintiff’s retirement, the defendant discontinued the plaintiff’s fringe benefits with regard to health and life insurance. Other retired Stamford firefighters, whose retirement is unrelated to § 7-433c, are entitled to such insurance in accordance with article XIX of an “Agreement [of the] City of Stamford and Local 786, International Association of Fire Fighters.” For an employee who incurs heart disease in the line of duty, § 31-284b (a) mandates that insurance benefits continue to be paid as long as the disabled worker “is eligible to receive or is receiving workers’ compensation payments pursuant to . . . chapter [568 of the General Statutes].” The defendant maintains, however, that an employee receiving benefits under § 7-433c is not entitled to the same continued insurance benefits.

In Felia v. Westport, 214 Conn. 181, 571 A.2d 89 (1990), this court recently reviewed the relationship between § 7-433c and chapter 568. The crucial legislative instruction in § 7-433c is its provision that a disabled police officer or firefighter is entitled to “receive from his municipal employer compensation and medical care in the same amount and the same manner as that provided under chapter 568 if such . . . disability was caused by a personal injury which arose out of and in the course of his employment and was suffered in the line of duty and within the scope of his employment.” We construed § 7-433c to require that, once § 7-433c coverage is established, the measurement of an employee’s economic benefits must be the same as the measure of damages for economic benefits provided to a disabled employee under chapter 568. Id., 185. Further, we held that the economic benefits to which a § 7-433c claimant is entitled include special benefits pursuant to General Statutes § 31-308 (d). Id., 186-87.

Our holding in Felia v. Westport, supra, leaves two questions to be resolved in this case. Generally, may a § 7-433c claimant, who is entitled to recover economic benefits denominated by the statute as “compensation” and “medical care,” ever have a claim to recover fringe benefits? Specifically, may a § 7-433c claimant qualify for the fringe benefits provided in § 31-284b? We answer both of these questions in the affirmative.

As a general matter, once it is accepted that “compensation” in § 7-433c is to be measured in accordance with the provisions of chapter 568, we may look to the definitions in chapter 568 for guidance about the scope of “compensation” in § 7-433c. Except for a reference in § 7-433c’s preamble to the intent to protect covered firefighters and police officers “against economic loss,” § 7-433c contains no definition of “compensation.” In chapter 568, however, General Statutes § 31-275 (14) defines “income” as “all forms of remuneration to an individual from his employment, including wages, accident and health insurance coverage, life insurance coverage and employee welfare plan contributions.” It is appropriate to read these definitions conjointly, because they relate to the same subject matter. Felia v. Westport, supra, 187; Connecticut Light & Power Co. v. Costle, 179 Conn. 415, 422, 426 A.2d 1324 (1980). Furthermore, the legislature expressly characterized fringe benefits, in § 31-284b (a), as an economic benefit designed “to maintain, as nearly as possible, the income of employees who suffer employment-related injuries.” We are, therefore, persuaded that the economic benefits that qualify as “compensation” under § 7-433c may include fringe benefits, in appropriate circumstances.

The defendant contends, however, that the plaintiff in this case has not met the conditions for fringe benefits set by § 31-284b (a). The statute requires a disabled employee to make two showings. He must first establish that his employer provides “accident and health insurance or life insurance coverage for any employee.” Concededly, the provisions of article XIX in the collective bargaining agreement between the defendant and the city firefighters satisfy this requirement. He must then establish that he “is eligible to receive or is receiving workers’ compensation payments pursuant to this chapter.” In that regard, the plaintiff’s supplemental award in this case, as in Felia v. Westport, supra, is an award of benefits under § 31-308 (d). The propriety of this compensation award is uncontested. During the 234 weeks of compensation for his permanent partial cardiovascular impairment, the plaintiff in this case is, therefore, receiving benefits “pursuant to this chapter.” On this record, we agree with the compensation review division that the plaintiff is entitled to the payment of fringe benefits.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 7-433c provides: “benefits for policemen or firemen DISABLED OR DEAD AS A RESULT OF HYPERTENSION OR HEART DISEASE. In recognition of the peculiar problems of uniformed members of paid fire departments and regular members of paid police departments, and in recognition of the unusual risks attendant upon these occupations, including an unusual high degree of susceptibility to heart disease and hypertension, and in recognition that the enactment of a statute which protects such fire department and police department members against economic loss resulting from disability or death caused by hypertension or heart disease would act as an inducement in attracting and securing persons for such employment, and in recognition, that the public interest and welfare will be promoted by providing such protection for such fire department and police department members, municipal employers shall provide compensation as follows: Notwithstanding any provision of chapter 568 or any other general statute, charter, special act or ordinance to the contrary, in the event a uniformed member of a paid municipal fire department or a regular member of a paid municipal police department who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart disease, suffers either off duty or on duty any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability, he or his dependents, as the case may be, shall receive from his municipal employer compensation and medical care in the same amount and the same manner as that provided under chapter 568 if such death or disability was caused by a personal injury which arose out of and in the course of his employment and was suffered in the line of duty and within the scope of his employment, and from the municipal or state retirement system under which he is covered, he or his dependents, as the case may be, shall receive the same retirement or survivor benefits which would be paid under said system if such death or disability was caused by a personal injury which arose out of and in the course of his employment, and was suffered in the line of duty and within the scope of his employment. If successful passage of such a physical examination was, at the time of his employment, required as a condition for such employment, no proof or record of such examination shall be required as evidence in the maintenance of a claim under this section or under such municipal or state retirement systems. The benefits provided by this section shall be in lieu of any other benefits which such policeman or fireman or his dependents may be entitled to receive from his municipal employer under the provisions of chapter 568 or the municipal or state retirement system under which he is covered, except as provided by this section, as a result of any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability. As used in this section, the term ‘municipal employer’ shall have the same meaning and shall be defined as said term is defined in section 7-467.”

       General Statutes § 31-284b (a), entitled “Employer to Continue Insurance Coverage or Welfare Fund Payments for Employees Eligible to Receive Workers’ Compensation. Use of Second Injury Fund,” provides:
      “In order to maintain, as nearly as possible, the income of employees who suffer employment-related injuries, any employer, as defined in section 31-275, who provides accident and health insurance or life insurance coverage for any employee or makes payments or contributions at the regular hourly or weekly rate for full-time employees to an employee welfare fund, as defined in section 31-53, shall provide to such employee equivalent insurance coverage or welfare fund payments or contributions while the employee is eligible to receive or is receiving workers’ compensation payments pursuant to this chapter, or while the employee is receiving wages under a provision for sick leave payments for time lost due to an employment-related injury.”

       Article XIX of the “Agreement [of the] City of Stamford and Local 786, International Association of Fire Fighters” provides health insurance benefits, such as hospital, medical and major medical coverage, as well as a group life insurance plan, for current and retired employees.

       Although the record does not state the basis for the plaintiffs supplemental award, plaintiff’s counsel at oral argument provided this background information, whose accuracy defense counsel did not contest.

       At oral argument before this court, defense counsel sought to interject an additional ground for denying the plaintiffs claim for relief under General Statutes § 31-284b (a). Although the issue was neither briefed nor, as far as the record discloses, raised before the compensation review division, the defendant now maintains that, because § 31-284b (a) in its present form was added to chapter 568 after the enactment of General Statutes § 7-433c, its terms cannot be included in any generic cross reference to chapter 568 in § 7-433c. We decline to consider this claim on its merits because of the failure properly to raise it below or to brief it here. See Practice Book § 4185; State v. Rollinson, 203 Conn. 641, 663, 526 A.2d 1283 (1987); Weintraub v. Richard Dahn, Inc., 188 Conn. 570, 571-72, 452 A.2d 117 (1982); C. Tait, Connecticut Appellate Practice and Procedure (1989) § 7.9.


author: Shea, J.

text:
    Morris Weinstein v. Zoning Board of the City of Stamford
    (13809)
    Healey, Shea, Glass, Covello and Hull, Js.
    Argued December 7, 1989
    decision released April 3, 1990

      Isadore M. Mackler, for the appellant (plaintiff).

      James V. Minor, assistant corporation counsel, with whom, on the brief, was Mary E. Sommer, for the appellee (defendant).
   Shea, J.

The plaintiff, Morris Weinstein, appealed to the Superior Court from the action of the defendant zoning board of Stamford in changing the zoning classification of his property from commercial to multifamily residential. After a joint trial of this and four other related cases, the court dismissed this appeal, as well as a similar appeal that had been taken directly from the zoning board, for lack of subject matter jurisdiction. The court concluded that the Stamford charter does not authorize an appeal directly to the court when other property owners, who have been affected by the same action of the zoning board, have petitioned for referral of the matter to the board of representatives, the legislative body of the city of Stamford. In the three remaining cases, appeals had been taken from the board of representatives following a referral to that body of the zoning amendments approved by the zoning board. The trial court’s remand of those cases for further proceedings before the board of representatives is the subject of additional appeals pending in this court.

For the purpose of this appeal, the facts, which are undisputed, may be summarized briefly. On March 11, 1985, as part of an extensive rezoning of the city of Stamford, the zoning board, after a public hearing, approved eight applications for zone changes that the board itself had proposed. One of the applications, pertaining to the “Downtown/Bull’s Head” neighborhood, included a change of zone for the plaintiff’s property at 480 Bedford Street from C-L, a limited business zone allowing certain commercial and residential buildings, to R-H, a high density residential district of varying dwelling unit density, depending upon the size of the lot. The area encompassed in this application extended approximately two miles from north to south and varied between one half mile and one mile from east to west. It included many properties located in different zones and devoted to diverse uses.

Several other owners of properties included in the “Downtown/BulPs Head” rezoning proposal filed petitions concerning the zoning classifications of their properties that the zoning board had approved, and, pursuant to the Stamford charter, the board of representatives acted upon their objections to the proposed zone changes as applied to their properties. Three of those owners appealed from the determinations made by the board of representatives and those appeals were consolidated for trial with the appeal of the plaintiff, which had been taken directly from the zoning board.

In dismissing the plaintiffs appeal from the zoning board, the trial court concluded that the petitions filed by the three other property owners, whose appeals from the board of representatives were tried as companion cases, had resulted in depriving the amendments approved by the zoning board of any “force and effect,” until the board of representatives had either approved or rejected those amendments, as § C-552.2 of the Stamford charter expressly provides. Relying also on § C-556 of the charter, which excepts from the right to appeal from the zoning board “those situations where a decision of the Zoning Board is referred to the Board of Representatives” and also creates a right to appeal from decisions of the latter board, the court decided that it had no jurisdiction over the subject matter of the plaintiff’s appeal. Because General Statutes § 8-10 provides for a uniform right of appeal that supersedes any conflicting charter provisions on which the court may have relied, we find error and remand the case for further proceedings.

General Statutes § 8-8 prescribes the procedure for appealing from decisions of a zoning board of appeals. General Statutes § 8-9 allows appeals from zoning commissions and planning and zoning commissions to be taken to the Superior Court “in the manner provided in section 8-8.” Section 8-10 declares that these provisions “shall apply to appeals from zoning boards of appeals, zoning commissions or other final zoning authority of any municipality whether or not such municipality has adopted the provisions of this chapter and whether or not the charter of such municipality or the special act establishing zoning in such municipality contains a provision giving a right of appeal from zoning boards of appeals or zoning commissions and any provision of any special act, inconsistent with the provisions of said sections, is repealed.”

The defendant zoning board does not contest the force of § 8-10 in overriding any inconsistent provisions of the Stamford charter, but maintains that the statute is inapplicable to the plaintiffs appeal because the “final zoning authority” in Stamford is the board of representatives once a petition is filed by opponents of a proposed amendment to the zoning map pursuant to § C-552.2 of the charter. It is true that, for a person who has filed a petition referring an amendment adopted by the zoning board to the board of representatives for approval or rejection, the “final zoning authority” is that body and not the zoning board. In Masone v. Zoning Board, 148 Conn. 551, 555, 172 A.2d 891 (1961), we declared that § C-556 of the charter “clearly indicates a choice of two different procedures.” “Furthermore, the choice provided by the charter lies between remedies each of which is complete in itself and inconsistent with the other.” Masone v. Zoning Board, supra, 556. Accordingly, we held that a party to a successful petition to the board of representatives could not, on reversal of the decision of the board of representatives by the court, pursue the alternative remedy of a direct appeal to the court. Id. Implicitly this court in Masone, by sanctioning the “choice” of a direct appeal from the zoning board, recognized that the Stamford zoning board was the “final zoning authority” when a person chose to appeal directly to court rather than pursue the alternative of a referral to the board of representatives.

Furthermore, § 8-10 refers to a zoning board of appeals and a zoning commission as in pari materia with a “final zoning authority” of a municipality. The Stamford zoning board performs the same functions as a zoning commission created pursuant to General Statutes § 8-1 and exercises an authority parallel to that given a zoning commission by General Statutes § 8-2 to enact and amend zoning regulations, subject to the possibility of a timely referral to the board of representatives. Indeed, this court has previously noted the similarity between the Stamford zoning board and a zoning commission established under the General Statutes by remarking that, “[ojnce a zoning commission has adopted zoning regulations . . . the municipality is powerless to amend them. . . . The legislative intent expressed in the Stamford charter modifies this principle by enabling the board of representatives to approve or reject any amendment by the zoning board to the zoning map or regulations, if proper and timely objection is made.” (Citation ommitted.) Burke v. Board of Representatives, 148 Conn. 33, 43, 166 A.2d 849 (1961).

The defendant zoning board also relies upon our decision in Conto v. Zoning Commission, 186 Conn. 106, 115-18, 439 A.2d 441 (1982), in which we declared that § 8-10 did not conflict with town zoning regulations providing for an appeal from its zoning commission, which had acted in an administrative capacity by granting a permit to use a building as a restaurant, to the board of zoning appeals, another administrative agency of the town. We held that § 8-10 did not excuse the failure of an opponent of the application for the permit to exhaust the administrative remedy established by the zoning regulations and that his appeal to the court directly from the granting of the permit by the zoning board was properly dismissed for lack of jurisdiction.

The present case is distinguishable from Conto in two significant respects. First, both the Stamford zoning board and its board of representatives act in their legislative capacities with respect to the amendment of zoning regulations, the subject of this litigation. Burke v. Board of Representatives, supra, 35-36, 38-41. The petition for referral to the board of representatives cannot, therefore, be characterized as an administrative remedy to which the exhaustion requirement would pertain. Second, we have previously held in Masone that the Stamford charter gave a “choice” of two alternative remedies, necessarily implying that a person aggrieved was free to elect between them and not have the “choice” made for him by others.

We conclude that the zoning board of Stamford is the “final zoning authority” within the intent of § 8-10 for those, such as the plaintiff, who have not exercised the alternative of petitioning for a referral to the board of representatives. It is clear, therefore, that the plaintiff was entitled to appeal from the action of the zoning board to the Superior Court pursuant to § 8-10.

There is error, the judgment dismissing the appeal is set aside and the case is remanded for further proceedings.

In this opinion the other justices concurred.

       The complaint alleges that the plaintiff owns property known as 480 Bedford Street, Stamford, which was located within a C-L Limited Business District for twenty years prior to March 11, 1985, when its zoning classification was changed to R-H Multiple Family Residence District.

       Section C-552.2 of the Stamford charter provides: “Referral to Board of Representatives by Opponents of Proposed Amendment to Zoning Map After the Effective Date of the Master Plan.
      “After the effective date of the Master Plan, if twenty percent or more of the owners of the privately-owned land in the area included in any proposed amendment to the Zoning Map, or if the owners of twenty percent or more of the privately-owned land located within five hundred feet of the borders of such area, file a signed petition with the Zoning Board, within ten days after the official publication of the decision thereon, objecting to the proposed amendment, said decision shall have no force or effect but the matter shall be referred by the Zoning Board to the Board of Representatives within twenty days after such official publication, together with written findings, recommendations and reasons. The Board of Representatives shall approve or reject such proposed améndment at or before its second regularly-scheduled meeting following such referral. When acting upon such matter the Board of Representatives shall be guided by the same standards as are prescribed for the Zoning Board in Section C-550 of this Act. The failure of the Board of Representatives either to approve or reject said amendment within the above time limit shall be deemed as approval of the Zoning Board’s decision.”
      Parallel provisions staying the effect of a zoning board decision, once a petition has been filed referring the matter to the board of representatives, apply to such referrals by “proponents of proposed amendments to zoning map after the effective date of the master plan”; § C-552.3; and by “opponents or proponents of amendments to the zoning regulations, other than the zoning map, after the effective date of the master plan.” Section C-553.2.

       Section C-556 of the Stamford charter provides: “Appeals.
      “Except in those situations where a decision of the Zoning Board is referred to the Board of Representatives for action pursuant to Section C-552.2, C-552.3, or C-553.2 of this act, any person aggrieved by any such decision may appeal therefrom, within fifteen days of the official publication of such decision, to the Superior Court, Judicial District of Fairfield. Any person aggrieved by a decision of the Board of Representatives or by a failure of that Board to decide a matter referred to it within the prescribed time pursuant to Section C-552.2 C-552.3 or C-553.2 of this act may appeal therefrom within fifteen days of such decision or such expiration of prescribed time, whichever first occurs, to the Superior Court, Judicial District of Fairfield.”

       “[General Statutes] Sec. 8-10. appeals procedure to apply to all municipalities. The provisions of section 8-8 and 8-9 shall apply to appeals from zoning boards of appeals, zoning commissions or other final zoning authority of any municipality whether or not such municipality has adopted the provisions of this chapter and whether or not the charter of such municipality or the special act establishing zoning in such municipality contains a provision giving a right of appeal from zoning boards of appeals or zoning commissions and any provision of any special act, inconsistent with the provisions of said sections, is repealed.”
      The trial court did not address General Statutes § 8-10 in its memorandum of decision and the record does not disclose whether this statute was called to its attention. Because jurisdiction is implicated, however, we must consider the statute, whether or not it was raised in the trial court.

       We are not unmindful of the fact that an appeal taken to the Superior Court directly from the Stamford zoning board may be rendered moot by the action of the board of representatives on a petition referring a proposed amendment, which is also the subject of a direct appeal, for its approval or rejection. If the result of the vote of the representatives or any appeal taken from the action of the board is to moot a pending appeal, such as that of the plaintiff, that appeal would, of course, have to be dismissed.
      We also realize that it would be inappropriate for the trial court to decide the merits of the plaintiff’s appeal until the issues raised in the three companion appeals from the board of representatives have been resolved and the action of that board has been finalized. Such considerations, however, relate to the appropriateness of a stay of a pending appeal rather than to subject matter jurisdiction.