author: Arthur H. Healey, J.

text:
    State of Connecticut v. Wilfredo Fernandez
    (10771)
    Healey, Shea, Dannehy, Santaniello and Callahan, Js.
    Argued October 4
    decision released December 10, 1985

      Colleen M. O’Connell, certified legal intern, with whom were ToddD. Femow, and, on the brief, Michael R. Sheldon and Edward R. Scofield, certified legal intern, for the appellant (defendant).

      Elizabeth B. Leete, special assistant state’s attorney, with whom were CarlSchuman and, on the brief, David Newman, assistant state’s attorneys, for the appellee (state).
   Arthur H. Healey, J.

Upon a trial to a jury, the defendant Wilfredo Fernandez was found guilty of the. crimes of burglary in the third degree in violation of General Statutes § 53a-103 and larceny in the second degree in violation of General Statutes (Rev. to 1979) § 53a-123. This appeal followed.

On appeal, the defendant claims that the trial court erred: (1) in conducting a “partisan cross-examination” of the only defense witness, which resulted in the denial of his right to trial by an impartial jury, his right to put on a defense and his right to a fair trial; (2) in its jury instructions on the elements of larceny in the second degree in that it unconstitutionally relieved the state of its burden of proving that he acted with the requisite specific intent; and (3) in concluding that the evidence presented was sufficient to justify a verdict of guilty on either of the crimes involved. We find error on the first issue and remand for a new trial. We find no error on the third issue and will discuss the second issue only to the extent necessary to guide the trial court in connection with a new trial.

We turn first to the claim involving the conduct of the trial judge. Some of the facts which the jury could reasonably have found are as follows: The crimes of which the defendant was found guilty arose out of the burglary of a Western Auto store in a Bridgeport shopping center around midnight on March 5, 1980. Two state’s witnesses who were leaving a nearby bowling alley about that time heard the sound of breaking glass and observed a person running from the direction of the store. They observed the person jump into the passenger side of a van parked in front of the store. The van immediately sped away and both witnesses followed it in their car and made note of its license number. They then returned to the store where the police had already arrived in answer to a silent alarm. They described the van and gave its license number to the police, who in turn radioed the information to a dispatcher.

About three to five minutes after the police broadcast the information, another Bridgeport police officer spotted the van a short distance away. After using the siren and lights on his police car, he stopped it. When he stopped the van, the defendant was in the driver’s seat and his brother, Reuben Figueroa, was in the front passenger’s seat. This officer ordered the two occupants of the van to get out of the vehicle. When they did, he placed them under arrest. While handcuffing the defendant, the officer observed an inch-long cut on his right wrist which he described during his testimony as having “fresh blood, but not flowing,” “semi-coagulated.” The police search of the van at that time disclosed three television sets and a “large bulky hammer” inside the side panel door. The manager of the Western Auto store came to the store shortly thereafter and reported that three television sets were missing. The front window of the store had been broken.

The defendant’s trial took place in October, 1980, at which time the state produced the following witnesses: the two witnesses who pursued the van and obtained its license number, the two police officers who responded to the silent alarm at the store, and the police officer who actually apprehended the defendant and his brother. The defendant did not testify at the trial. His brother, Reuben Figueroa, was the only witness produced by the defense. On August 20,1980, prior to the defendant’s trial, Figueroa had pleaded guilty to charges, arising out of this incident, of burglary in the third degree and larceny in the second degree. He had not been sentenced as of the time he testified at his brother’s trial. He testified that no one had promised him anything in return for pleading guilty and that there was no plea bargain. The trial judge at the defendant’s trial was the same judge before whom Figueroa had entered his guilty pleas in August, 1980.

On direct examination, Figueroa said that the defendant, who owned the van, had picked him and a friend up earlier on the evening of the burglary and that they had had a couple of bottles of brandy to drink. Because the defendant had had too much to drink, he told Figueroa to drive as he could not, and he then fell asleep on the bed in the back of the customized van. Figueroa, who needed money to buy drugs, stopped at the Western Auto store, “pulled out” a hammer and broke the store window. He and the “other kid,” who he said was also in the van, went inside. Figueroa testified at the trial that he went in twice and brought out one television each time and that the “other kid” went in just once and brought out one television. He also said that the defendant took no part in this break because he was asleep in the bed in the rear of the van but that “somebody else did.” When defense counsel asked him who that person was, he answered: “I would like to keep his name out of the Court.”

Figueroa maintained that he drove the van away from the store, and when he saw the flashing light of the pursuing police cruiser he woke up the defendant. He did this because he did not have a license at the time and because the defendant owned the van. Thereupon, the defendant, according to Figueroa, assumed the driver’s seat. The “other kid,” Figueroa said, was able to exit the “slide door” on the passenger side of the van and “took off” unnoticed by the police officers who had stopped the van.

On cross-examination, Figueroa reiterated that he had been drinking and was using drugs at the time. He also said that he broke the store window with a hammer and that he went into the store twice bringing out one television each time. The “other person” only went in once. After he was further questioned by the state and after he admitted that he remembered pleading guilty on August 20, 1980, the state indicated that it wanted to introduce a certain transcript to impeach Figueroa’s credibility. At that juncture, the following occurred:

“Q. Mr. Figueroa do you remember telling Your Honor at the time that you pled guilty to the three crimes that you were charged with and pled guilty to, that you went inside. That once inside, you grabbed a couple of television sets and then went back outside. When his Honor asked you how many times you went in and out. You said just once. His Honor said, ‘just once, are you sure of that?’ You replied, yes. He said, ‘how many television sets did you take?’ You said, ‘one.’ Do you remember saying that?

“A. No, I’m sorry, he asked me and I told him twice.

“The Court: You never said that?

“A. No, I did not.

“The Court: You can introduce it now. I will see it first. Mr. Figueroa, I will ask you once more. I just want to make sure. On August 20, 1980 in this Courtroom, did you remember me saying to you, how many times did you go in and out. And you said, huh, do you remember saying that?

“A. Yes, but—

“The Court: Just wait, let me do this. I said ‘how many times did you go in and out?’ And you said, ‘just once.’ Do you remember saying that?

“A. No, I do not.

“The Court: I said, ‘just once, are you sure of that?’ You said, ‘yes.’ Do you remember saying that?

“A. No.

“The Court: Then you never said that?

“A. I never said that. I told you twice, and I remember saying that. Because you had asked me—

“The Court: I don’t want to hear anything more. [A]ny objections?” The balance of the cross-examination by the state is significant in two respects: Figueroa again maintained that he entered the store twice and that while he loved his brother, the defendant, and would do anything he could for him, he had pleaded guilty “because I did do it. He had no part in it.”

On redirect, he reiterated his love for his brother but said he had pleaded guilty “because I did it” and his brother did not have anything to do with it. Thereupon, after the state and defense counsel indicated that they had no further questions of Figueroa, the following occurred:

“The Court: Mr. Figueroa, who was with you?

“A. Who was with me?

“The Court: Yes.

“A. I don’t want to say the person’s name.

“The Court: I will ask you once more, who was with you?

“A. I cannot say the person’s name, the person that was with me is in jail at this moment.

“The Court: Maybe you weren’t clear about what I asked you. Who was with you?

“A. Like I said before, I cannot say that person’s name.

“The Court: Is it that you cannot or will not?

“A. I cannot.

“The Court: Can’t.

“A. I don’t know what that would bring upon myself, saying that person’s name.

“The Court: I ask you once more, what is his name?

“A. I can’t say his name.

“The Court: Any questions based on my questions Mr. Florek?

“Mr. Florek: No questions, Your Honor.

“The Court: Any questions based on my—

“Mr. Newman: No Your Honor.”

The defense then rested its case; there was no rebuttal offered.

During its charge to the jury, the trial court included the following in its instructions: “Now one other subject that I should mention to you, is that you are not to infer or take any meaning from the [intonation] of my voice or the [manner] in which the Court has to [sic] replied to or spoken to counsel or witnesses in the [course] of the trial. Be as objective and as fair as you can in weighing the credibility of the witnesses that you have heard. Do not feel, as a result of any questions I may have asked any witness, that I have endorsed, accepted, or rejected so much of the testimony which I inquired about. As it is in no way intended to remove that testimony from your consideration as to its credibility.”

Against this background, the defendant’s essential claim of error is that by the trial judge’s “partisan” examination of the only defense witness the judge became an “unsworn impeachment witness” for the prosecution and thus deprived the defendant of his right to trial by an impartial jury, his right to put on a defense before that jury and his right to a fair trial. Pointing to the colloquies between the trial judge and Figueroa, the defendant further argues that the “curative” instruction did not remedy the denial of his constitutional rights. Rejecting the state’s argument that the trial judge did not “testify” but only questioned permissibly from a document, the defendant contends that the trial judge proceeded as a cross-examiner and that the effect was to indicate that his memory of the plea proceedings did not “mesh” with Figueroa’s testimony. In addition, the defendant argues that the questioning in the second colloquy was consistent with the judge’s questioning of Figueroa in the earlier colloquy and that it, in effect, served “to inform the jury that the judge did not believe the witness’ [Figueroa] testimony and, by extension, the entire defense theory of the case.” The state disputes the defendant’s claims and counters that the trial judge did not “testify” but rather that he permissibly tracked the transcript of Figueroa’s plea proceeding as he read it. The state maintains that the missing “third man” colloquy was proper and not partisan, keeping in mind that Figueroa had waived his privilege against self-incrimination to testify and had no right to refuse to identify the missing “third man.” The state also contends that the trial judge did not indicate his opinion as to Figueroa’s credibility or “tell the jury that his opinion was for their consideration” but maintains that his “questions disclose[d] only a concern for the truth.” The state claims that any error, if any there were, was cured by the jury instructions which made clear that the credibility of witnesses was strictly for the jury to decide.

In any event, the state claims that we should not review this claim of error because no objection was made at trial and neither State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), nor the “plain error” doctrine, both advanced by the defendant to afford review, should permit our review here. The second “exceptional circumstance” permitting review under Evans is “where the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial.” State v. Evans, supra, 70. Our examination of the record demonstrates that it is adequate to support this claim.

“ ‘Due process requires that a criminal defendant be given a fair trial before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm. U. S. Const., amend. XIV; Conn. Const., art. I, § 8; Lisenba v. California, 314 U.S. 219, 62 S. Ct. 280, 86 L. Ed. 166 [1941]; Wojculewicz v. Cummings, 145 Conn. 11, 19, 138 A.2d 512, cert. denied, 356 U.S. 969, 78 S. Ct. 1010, 2 L. Ed. 2d 1075 [1958]. In a criminal trial, the judge is more than a mere moderator of the proceedings. It is his responsibility to have the trial conducted in a manner which approaches an “atmosphere of perfect impartiality which is so much to be desired in a judicial proceeding.” Glasser v. United States, 315 U.S. 60, 82, 62 S. Ct. 457, 86 L. Ed. 680 [1942]; Quercia v. United States, 289 U.S. 466, 469, 53 S. Ct. 698, 77 L. Ed. 1321 [1933].’ State v. Echols, 170 Conn. 11, 13, 364 A.2d 225 (1975).” State v. Gordon, 197 Conn. 413, 424-25, 497 A.2d 965 (1985). “The function of the court in a criminal trial is to conduct a fair and impartial proceeding. Glasser v. United States, [supra].” State v. Bember, 183 Conn. 394, 401, 439 A.2d 387 (1981). “The role of the Trial Judge is neither that of automaton nor advocate”; People v. Yut Wai Tom, 53 N.Y.2d 44, 56, 422 N.E.2d 556, 439 N.Y.S.2d 896 (1981); nor is a judge merely an “umpire in a forensic encounter” but “[h]e is a minister of justice” and in “whatever he does . . . the trial judge should be cautious and circumspect in his language and conduct.” (Citations omitted.) Cameron v. Cameron, 187 Conn. 163, 169, 444 A.2d 915 (1982); see Quercia v. United States, supra; State v. Gordon, supra, 425. In Yut Wai Tom, the New York Court of Appeals appropriately pointed out: “As defined in subdivision (a) of standard 6-1.1 of the American Bar Association Standards Relating to the Administration of Criminal Justice (Special Functions of the Trial Judge [1978]): ‘The trial judge has the responsibility for safeguarding both the rights of the accused and the interests of the public in the administration of criminal justice. The adversary nature of the proceedings does not relieve the trial judge of the obligation of raising on his or her initiative, at all appropriate times and in an appropriate manner, matters which may significantly promote a just determination of the trial.’ Under that standard, as the commentary to it reveals, ‘it is appropriate for the trial judge from time to time to intervene in the conduct of a case. Thus, when it clearly appears to the judge that for one reason or another the case is not being presented intelligibly to the jury, the judge is not required to remain silent. On the contrary, the judge may, by questions to a witness, elicit relevant and important facts. The judge may interrogate a witness after a cross-examination that appears to be misleading to the jury.’ It is, however, important, according to that commentary that the Judge ‘be aware that there may be greater risk of prejudice from overintervention than from underintervention. While the judge should not hesitate to exercise his or her authority when necessary, the judge should avoid trying the case for the lawyers.’ ” People v. Yut Wai Tom, supra; see Moll v. State, 351 N.W.2d 639, 644 (Minn. App. 1984).

We recognize that “[t]he trial judge occupies an impartial position and one of commanding authority, and it often happens in a court-room that he may ascertain the truth when counsel has failed.” State v. Cianflone, 98 Conn. 454, 469, 120 A. 347 (1923). While it is his responsibility to conduct the trial as impartially as is humanly possible, a trial judge must avoid “taking an apparent position of advocacy in a case before him”; he must refrain from making “remarks which are indicative of favor or condemnation or which disparage a defendant before the jury.” State v. Echols, 170 Conn. 11, 14, 364 A.2d 225 (1975).

Particularly, there should be no questioning that appears to reject a defendant’s credibility and implies judicial support of a prosecution witness’ testimony. See, e.g., People v. Jackson, 97 Mich. App. 660, 666, 296 N.W.2d 135 (1980). This applies to any witness, and it should be kept in mind that the “[interrogation of witnesses tends to assimilate the court’s role with the advocate’s, and may tread over the line separating the provinces of judge and jury. . . . There is the risk that the questioning [of witnesses] may bear ‘the seeds of tilting the balance against the accused’ and place ‘the judge in the eyes of some jurors, on the side of the prosecution.’ ” United States v. Barbour, 420 F.2d 1319, 1321 (D.C. Cir. 1969). “ ‘The influence of the trial judge on the jury is necessarily and properly of great weight,’ Starr v. United States, 153 U.S. 614, 626 [14 S. Ct. 919, 38 L. Ed. 841 (1894)], and jurors are ever watchful of the words that fall from him.” See Bollenbach v. United States, 326 U.S. 607, 612, 66 S. Ct. 402, 90 L. Ed. 350 (1946). These admonitions and cautions “are prompted by the truism that a jury has a natural tendency to look to the trial judge for guidance, and may find it even where it is not intended. The judge’s attitude and the result he supposedly desires may be inferred by the jury from a look, a lifted eyebrow, an inflection of the voice—in many cases without warrant in fact.” State v. Boyd, 222 Kan. 155, 159, 563 P.2d 446 (1977).

The trial judge can question witnesses both on direct and cross-examination. For example, it may be necessary to do so to clarify testimony as he has a “duty to comprehend what a witness says as much as it is his duty to see that the witness communicates with the jury in an intelligible manner.” Ray v. United States, 367 F.2d 258, 261 (8th Cir. 1966), cert. denied, 386 U.S. 913, 87 S. Ct. 863, 17 L. Ed. 2d 785 (1967), quoted in State v. Bember, supra, 402; State v. Cianflone, supra, 468. While no precise theorem can be laid down, we have held that it is proper for a trial court to question a witness in endeavoring, without harm to the parties, “to bring the facts out more clearly and to ascertain the truth”; Goggins v. Fawcett, 145 Conn. 709, 713, 147 A.2d 187 (1958); in trying to bring out the facts to resolve a doubt it apparently had as to the admissibility of certain evidence; Hutchinson v. Plante, 175 Conn. 1, 3, 392 A.2d 488 (1978); in undertaking reasonable efforts to restrain a garrulous witness; Felix v. Hall-Brooke Sanitarium, 140 Conn. 496, 502, 101 A.2d 500 (1953); and in intervening where the witness is embarrassed, has a language problem or may not understand a question. State v. Cianflone, supra.

Judge Kaufman, in speaking for the Second Circuit Court of Appeals, wisely observed that “[tjhere is simply no handy tool with which to gauge a claim that a judge’s conduct improperly has shifted the balance against a defendant.” United States v. Nazzaro, 472 F.2d 302, 304 (2d Cir. 1973). Such a decision is reached “only after the most thorough and careful deliberation,” as in such cases the court faces a “special quandary” stemming from the fact that “ ‘[the court is] not given the benefit of witnessing the juxtaposition of personalities which may help prevent reading too much into “the cold black and white of a printed record.” ’ United States v. Grunberger, 431 F.2d 1062, 1067 (2nd Cir. 1970).” United States v. Nazzaro, supra. Error found in the conduct of a trial judge which, upon the whole record, can safely be said to have deprived a criminal defendant of a fair trial cannot, however, be ignored. There is no doubt that a criminal trial court judge has a difficult task and is forced at each trial to make many decisions. Nevertheless, the jury alone is the trier of fact and any trespass, actual or reasonably perceived, on that exclusive function requires special scrutiny.

With that, we take up first the trial judge’s questioning of Figueroa concerning his testimony at the trial as compared with his statements to the same judge when he pleaded guilty to crimes which were the subject of the defendant’s trial. After defense counsel had examined Figueroa about his earlier guilty plea, the state cross-examined him concerning the number of times he entered the store during the burglary. Receiving what it claimed were inconsistent responses from Figueroa, the state indicated to the court that it wished to impeach him by the transcript of the guilty plea proceedings. The trial judge intervened and proceeded to examine Figueroa on this. A certified copy of that portion of the transcript upon which the trial judge examined Figueroa was made an exhibit and passed to the jury at that time. It is unrealistic to downgrade the impact upon the jury of this questioning, especially when it came from the trial judge who had also taken the guilty plea, and where its object was the sole defense witness. See State v. Lint, 361 A.2d 926 (Me. 1976). Significantly, the object of this judicial examination was the witness who had said, both in pleading guilty and in his testimony in this case, that he, and not the defendant, had committed the crimes charged. This directly implicated his credibility. Moreover, the state’s admitted theory in this case was that the defendant was liable as a principal and not as an aider or abettor. His credibility, thus implicated, called seriously into question the defense theory at trial that the defendant, because he was asleep in the rear of the van due to his intoxication, slept throughout the actual break and never entered the store. Figueroa’s credibility on the third “missing person” theory could not escape the tremor emanating from that examination by the trial judge.

While it is true that whether the due process requirement of the fourteenth amendment of fundamental fairness in state criminal proceedings is met is generally considered on a case-by-case basis, “[t]he right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State’s accusations.” Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973); see Snyder v. Massachusetts, 291 U.S. 97, 116, 54 S. Ct. 330, 78 L. Ed. 674 (1934). We have no reason to doubt that the trial judge, in each colloquy, was basically concerned about putting the truth before the jury. Good intentions, however, cannot serve to obviate an unconstitutional deprivation of a fair trial. Where credibility was so significant, as it was here, a trial judge should eschew an examination of a key witness which might easily have given the jury the impression that the court had doubts concerning the truthfulness of his testimony on a crucial issue. See United States v. Tobin, 426 F.2d 1279, 1283 (7th Cir. 1970); see also People v. Jackson, supra (trial court’s cross-examination of defendant held error where it “cast a cloud of judicial skepticism” over such testimony). This record discloses that this occurred in this case. Even where “an alert and capable judge . . . feels that he can assist ... by participating in the interrogation of witnesses ... he would ordinarily do well to forego such intrusion upon the functions of counsel, thus maintaining the court’s position of impartiality, in the eyes of the ever-observant jurors.” United States v. Carmel, 267 F.2d 345, 350 (7th Cir. 1959); United States v. Tobin, supra, 1282; United States v. Hill, 332 F.2d 105, 106 (7th Cir. 1964); People v. Yut Wai Tom, supra, 57 (“[a] Trial Judge’s examination of witnesses carries with it so many risks of unfairness that it should be a rare instance when the court rather than counsel examines a witness”). The fact that neither of the two colloquies was as lengthy as in some cases does not militate against reversible error because, on balance, in the final analysis, the ultimate test must be substance, not quantity.

The questioning in this case also worked to disadvantage the defendant’s case in that it fairly tended to convey to the jury the trial judge’s “own notion” of what inferences might be reasonable for it to draw. See generally United States v. DeLoach, 504 F.2d 185, 190 (D.C. Cir. 1974). The challenged questioning did “undercut” the defendant’s case. United States v. Hill, supra, 1207; United States v. Brandt, 196 F.2d 653, 656 (2d Cir. 1952). The questioning on both occasions was better left to counsel and was in the nature of an examination that inured to the benefit of the state.

We are certainly not suggesting that trial judges absolutely refrain from examining witnesses. Rather, we are suggesting that it be done when justice so requires but with caution and circumspection lest an appearance of partiality, although not intended, emerge. Judicial conduct that takes “on the aspect of advocacy” must be avoided. Blunt v. United States, 244 F.2d 355, 365 (D.C. Cir. 1957) (Bazelon, J.). As we have already noted, greater restraint is required in criminal cases. See 81 Am. Jur. 2d, Witnesses § 420; 2 Wharton, Criminal Evidence (13th Ed. Torcia) § 407. In explicating the role of the impartiality of the trial judge, Judge Learned Hand said: “Prosecution and judgment are two quite separate functions in the administration of justice; they must not merge.” United States v. Marzano, 149 F.2d 923, 926 (2d Cir. 1945); see Johnson v. Scully, 563 F. Sup. 851, 859 (E.D.N.Y 1983). Judge Kaufman’s statement in Nazzaro is also apposite here: “an appearance of impartiality and judicious detachment must prevail at all times. While concededly the line separating permissible and impermissible judicial conduct in the courtroom is drawn with the finest point, we are of the firm view that the line was crossed in this case.” United States v. Nazzaro, supra, 313. That line was crossed in this case. The prejudice that resulted from the denial of the defendant’s constitutional right to a fair trial requires that we order a new trial. State v. Gordon, supra, 425-26.

In reaching this result, we also concluded that the curative instruction did not cure the impact of the prejudice caused. See Quercia v. United States, supra, 472; United States v. Nazzaro, supra, 312-13. Such instructions ordinarily do prevent reversible error. Judges, both appellate and trial, may expect, “as they must if our judicial system is to survive, that conscientious jurors will respect and follow the instructions . . . .” State v. Manley, 54 N.J. 259, 270, 255 A.2d 193 (1969). We have always given great weight to curative instructions in assessing claimed errors. See State v. Binet, 192 Conn. 618, 632, 473 A.2d 1200 (1984); State v. Ubaldi, 190 Conn. 559, 563, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983). Yet we have said that “a curative instruction is not inevitably sufficient to overcome ...” the impact of prejudice. State v. Tinsley, 180 Conn. 167, 170, 429 A.2d 848 (1980); see also Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964). Only when we are persuaded, as we are here, that the prejudicial impact of the examination resulting from the two colloquies has probably overborne reasonable juror conscientiousness must we decline to accept the claimed efficacy of a curative instruction. This is one of those rare cases when we are so persuaded.

The defendant next claims that the trial court’s instructions to the jury on the element of intent required for conviction of larceny in the second degree violated his constitutional rights by relieving the state of its burden of proving the requisite specific intent in violation of Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979). We agree with the defendant’s argument that if we find, as we do, reversible error on the claimed error addressed to the conduct of the trial judge, a new trial must be ordered on both the larceny and the burglary charges even if we were to resolve the Sandstrom issue in favor of the state. We address the Sandstrom claim for the purpose of providing guidance at the new trial inasmuch as the challenged instruction was erroneous.

As there was no objection to the charge to the jury nor a request for a different charge after the instructions were given, it must first be determined whether this claim of error is reviewable under the “exceptional circumstances” rule of State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). “[W]e have repeatedly held that a claim of error under Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979), can be considered under the ‘exceptional circumstances’ rule of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). State v. Mason, 186 Conn. 574, 582, 442 A.2d 1335 (1982); State v. Cosgrove, 186 Conn. 476, 482-83, 442 A.2d 1320 (1982); State v. Arroyo, 180 Conn. 171, 173-74, 429 A.2d 457 (1980).” State v. Shine, 193 Conn. 632, 644 n.11, 479 A.2d 218 (1984); see State v. Johnson, 185 Conn. 163, 167, 440 A.2d 858, aff'd, 460 U.S. 73, 103 S. Ct. 969, 74 L. Ed. 2d 823 (1983). We will review this claim.

In its general instructions to the jury on intent, the trial court stated: “With regard to the question of intent, intent may also be presumed. This is because a man is presumed to have intended to do the act which he did. Accordingly until some credible evidence comes into the case tending to prove that because in the light of the circumstances as he honestly and in good faith believe[s] them to be, the act which he did would appear to be lawful or because the act was an accident until such credible evidence appears in the case. The State may rest upon an assumption that an accused intended to commit an act which he did commit. So I will charge you again as to intent, as to whether you—not whether you, the fact that you must have intent for a criminal act, but the State may rely on a presumption for that.”

The defendant claims that this general instruction to the jury on intent combined with specific instructions on the larceny count impermissibly shifted the burden of proof to the defendant, thereby relieving the state of its burden of proof on intent. The state claims that the general instructions on intent merely created a presumption which shifted the burden of production to the defendant and that such shifting of the burden of production should be held constitutional because it does not offend due process. In any event, the state claims that the instructions on the intent required for conviction of larceny, taken as a whole, are not erroneous.

The United States Supreme Court in Sandstrom v. Montana, supra, 517, 524, held that a jury instruction which stated that “[t]he law presumes that a person intends the ordinary consequences of his voluntary acts” may have been interpreted by the jury “as constituting either a burden-shifting presumption . . . or a conclusive presumption . . . . ” “[Ejither interpretation would have deprived defendant of his right to the due process of law” and was therefore unconstitutional. Sandstrom v. Montana, supra, 524. It should be noted that “Sandstrom does not invalidate, for example, the use of an ‘entirely permissive inference or presumption, which allows—but does not require— the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and that places no burden of any kind on the defendant.’ Ulster County Court v. Allen, 442 U.S. 140, 157, 99 S. Ct. 2213, 60 L. Ed. 2d 777 (1979). . . .” State v. Johnson, supra, 167-68.

It has been firmly established as a constitutional right that the state bears the burden of proof beyond a reasonable doubt on each essential element of the crime charged. In Re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); see State v. Griffin, 175 Conn. 155, 162, 397 A.2d 89 (1978). General Statutes §§ 53a-119 and 53a-123 define larceny in the second degree, of which the defendant was convicted, as including the “intent to deprive another of property or to appropriate the same to himself or a third person.” A specific intent is an essential element of larceny in the second degree and as such must be proved beyond a reasonable doubt by the state. State v. Harrison, 178 Conn. 689, 694, 425 A.2d 111 (1979) (state must prove intent in an accessory to attempted robbery charge).

The burden of proof on intent “ordinarily can be borne only by the presentation of circumstantial evidence, because intention is a mental process that necessarily must be proved through inferences drawn from the defendant’s statements and actions.” State v. Harrison, supra, 695. Despite the elusive nature of proving intent, the state cannot escape its burden that it must prove intent when it is an element of the crime charged.

An instruction such as the one given in this case is worded in terms of a presumption and shifts the burden to the defendant to prove that he did not have the required mental state or intent. Shifting the burden of proof on an essential element to the defendant “denies him the protections of the presumption of innocence and of due process of law.” Id., 693; see In Re Winship, supra, 364. The trial court’s general instructions in this case almost parallel those which we have on prior occasions deemed violative of due process absent a sufficient cure. State v. Truppi, 182 Conn. 449, 452-53, 438 A.2d 712 (1980), cert. denied, 451 U.S. 941, 101 S. Ct. 2024, 68 L. Ed. 2d 329 (1981); State v. Harrison, supra, 692.

Finally, the defendant claims that the evidence was insufficient to establish his guilt of either crime charged beyond a reasonable doubt. “Although we have ordered a new trial, ‘we must also address this claim, because if we were to rule that the evidence was insufficient, the defendant would be entitled to an acquittal rather than a new trial. Burks v. United States, 437 U.S. 1, 18, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978).’ State v. Ferrell, 191 Conn. 37, 46, 463 A.2d 573 (1983). ‘ “In determining whether the evidence is sufficient to sustain a verdict, ‘the issue is whether the jury could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt.’ . . .” (Citations omitted.) State v. Giguere, 184 Conn. 400, 402-403, 439 A.2d 1040 (1981); see also Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560, reh. denied, 444 U.S. 890, 100 S. Ct. 195, 62 L. Ed. 2d 126 (1979).’ State v. Reid, 193 Conn. 646, 666, 480 A.2d 463 (1984). In reviewing the evidence we must construe it in a light most favorable to sustaining the verdict. State v. Ferrell, supra.” State v. Pellegrino, 194 Conn. 279, 294, 480 A.2d 537 (1984).

In making this claim, the defendant argues that the sole theory upon which his conviction can be predicated is that he actually entered the store and took the property in question. The state agrees with this claim and argues that the evidence was sufficient to support the conviction of each crime charged on this theory. We agree with the state.

We have set out earlier certain evidence concerning the crimes charged which was before the jury and which it could reasonably have found. From this evidence, the jury could have reasonably inferred that the defendant entered or at the very least reached inside the store and removed at least one of the three stolen television sets found in the van by the police. It could also have reasonably inferred that the cut on his right wrist came about from his going in past or reaching past the broken glass of the store to remove a television. The evidence of the arresting police officer’s observation, less than ten minutes after the break, of the blood On the cut wrist as “semi-coagulated,” “fresh blood, but not flowing” is significant. Moreover, the jury could have credited Figueroa’s testimony that he himself removed only two of the three television sets from the store even if it did not credit his testimony regarding the unnamed missing person who he testified participated with him in these crimes. The jury could thus have reasonably found that the defendant was the only one who could have entered the store and removed the third television set. “There is no legal distinction between direct and circumstantial evidence so far as probative force is concerned.” State v. Little, 194 Conn. 665, 673, 485 A.2d 913 (1984), quoting State v. Cari, 163 Conn. 174, 179, 303 A.2d 7 (1972). In sum, employing the required standard of review, the evidence was sufficient to permit the jury to find the essential elements of each of the crimes charged proved beyond a reasonable doubt.

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

In this opinion the other judges concurred.

       General Statutes § 53a-103 provides in part: “(a) A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein.”
      General Statutes (Rev. to 1979) § 53a-123 provides in part: “(a) A person is guilty of larceny in the second degree when ... (2) the value of the property or service exceeds five hundred dollars . . . .”
      General Statutes § 53a-119 provides in part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner.”

       At that time the following colloquy took place:
      “Mr. Florek: I am objecting to the introduction that ah—
      “The Court: Legal basis.
      “Mr. Florek: Your Honor, the purpose of the Prosecution is to impeach Mr. Figueroa [sic] credibility.
      “The Court: That’s all it’s used for.
      “Mr. Florek: Then that's fine. Nevertheless, Your Honor I think—
      “The Court: Counsel, when you say that’s fine, tell me what you mean. I am not clear on that. That means you have no objection?
      “Mr. Florek: No it means, I do have an objection.
      “The Court: Okay, I will hear the objection. A legal objection.
      “Mr. Florek: My objection is that the impeachment is too tenuous in this situation. Your Honor, it’s not what Mr. Newman, the Prosecutor is trying to impeach him on the basis of.

        “The Court: Counsel, don’t tell me a story. I heard your legal basis. Your claim?
      “Mr. Newman: Relevant, Your Honor, impeaches the witness credibility.
      “The Court: Overruled.
      “Mr. Florek: Can I have an exception, Your Honor?
      “The Court: You can have an exception. ...”

       This is the instruction which the state claims was “curative” of any of the defendant’s claims with respect to the trial court’s conduct, if there was any error.

       The defendant did not testify at the trial.

       The state’s brief freely admits on appeal that the defendant “is correct in his contention that the only theory on which the Defendant can be convicted is that he actually entered the building and took the property in question.” (Emphasis added.)

       Whether the evidence of guilt is “overwhelming” or the case was a “close call” has been given weight in assessing an error such as that claimed in this case. See, e.g., United States v. Pellegrino, 470 F.2d 1205 (2d Cir. 1972), cert. denied, 411 U.S. 918, 93 S. Ct. 1556, 36 L. Ed. 2d 310 (1973); United States v. Hill, 332 F.2d 105 (7th Cir. 1964).

         The defendant concedes that the “language of the specific burglary-charge was sufficiently precise and elaborate to alleviate any constitutional infirmity in the general instructions on the issue of intent.”

       The state, in its brief, suggests that the punctuation of the transcription of the instruction should omit the misplaced period after “case” and continue it as one sentence.


source: Caselaw Access Project

author: Dannehy, J.

license: Public Domain

text:
    State of Connecticut v. John Denby
    (12182)
    Peters, C. J., Healey, Shea, Dannehy and Santaniello, Js.
    Argued October 10
    decision released December 10, 1985

      Donald D. Dakers, public defender, for the appellant (defendant).

      Julia D. Dewey, assistant state’s attorney, with whom, on the brief, were Arnold Markle, state’s attorney, and Robert J. Devlin, Jr., assistant state’s attorney, for the appellee (state).
   Dannehy, J.

The defendant was charged with assault in the first degree in violation of General Statutes § 53a-59 (a) (1). After a jury trial, he was acquitted of that charge but convicted of the lesser offense of assault in the second degree in violation of General Statutes § 53a-60. The defendant’s sole claim of error on appeal is that the trial court erred in limiting his cross-examination of the victim of the assault. We agree with the defendant that the trial court improperly restricted cross-examination, but we find that the error was harmless. Thus, we affirm the conviction.

Jerome Washington was the victim of the assault. He testified that for about one month prior to the incident he had been staying with his cousin, Christine Maynard, at her New Haven apartment. Washington, who lived in Ansonia, knew that the Ansonia police had a warrant for his arrest in connection with a robbery that had occurred just before he moved to his cousin’s apartment. The defendant was Christine Maynard’s boyfriend and a frequent overnight guest at her apartment. Washington testified that on the evening of March 6, 1981, he was alone in the apartment when the defendant and a companion entered and accused him of stealing the defendant’s gun. Washington denied taking the gun and tried to remonstrate with the defendant. Washington testified that the defendant, who was standing approximately fifteen feet away, suddenly produced a handgun: “He just shot me, and I didn’t know I was shot the first time. I kept talking. I got shot again. So I hit the floor. He might try to shoot me again.” Washington suffered two bullet wounds in his leg and spent more than two weeks in the hospital.

The defendant gave a different version of the incident. He stated that for about one year he had been sharing the apartment in question with Christine Maynard. He testified that on the morning of August 6, 1981, he looked in the closet where he kept his gun and found that it was not there. He immediately suspected that Washington had stolen it. He got into his car and drove to various locations in New Haven to look for Washington, picking up several friends along the way. The defendant did not find Washington. When he returned to the apartment later that evening, Washington was there. The defendant testified that he and a companion each grabbed one of Washington’s arms in an attempt to subdue him and recover the gun. The defendant testified, “Dewey had him like this, and I had him like this. I went like this. (Indicating). I said, T feel the gun,’ and I was trying to pull the gun out of him, right; and when I was pulling the gun, I think he grabbed like that, (Indicating) and I pulled the gun. The gun went off two times right there.” According to the defendant, he then removed the gun from Washington’s waist and departed with his companion.

On direct examination, Washington admitted that, shortly after the incident in question, he himself had been convicted of an unrelated robbery in Ansonia, and, as a result, had served a term of imprisonment in Somers. On cross-examination, defense counsel sought to learn more about Washington’s robbery conviction. He first established that the conviction had been for robbery in the first degree. He next attempted to ascertain when the robbery occurred, and whether Washington possessed a handgun during the robbery. In response to the first question, which was propounded several times, Washington testified that he could not remember when the robbery occurred. Asked whether he possessed a handgun during the robbery, Washington responded that he had not. The state’s attorney immediately objected to further questioning into this matter on the ground that “getting into the details of the crime is improper.” The trial court sustained the objection, apparently ruling that Washington’s robbery conviction was relevant only to credibility. The entire sequence is reproduced in the footnote.

It is a common trial tactic, employed by both the state and the defense, to introduce on direct examination the prior convictions of one’s own witness. The obvious purposes of this maneuver are to avoid the appearance that the witness is attempting to conceal the conviction from the jury, and to preclude the opposing party from reaping any advantage which may accrue from exposing the indiscretions of one’s adversary. State v. Nardini, 187 Conn. 513, 527, 447 A.2d 396 (1982). In the present case, the state’s attorney obviously proceeded on the assumption that the evidence of Washington’s robbery conviction would be admissible, on cross-examination, only to impeach Washington’s credibility through the indirect inference arising from general bad character. State v. Geyer, 194 Conn. 1, 12, 480 A.2d 489 (1984); State v. Carter, 189 Conn. 631, 644, 458 A.2d 379 (1983); State v. Nardini, supra, 523-24. The trial court apparently agreed, and therefore precluded the defendant from probing further into the details of the robbery conviction. Prior convictions, when offered to impeach credibility through the inference of general bad character, may be proved either by questioning the witness or by introduction of a certified copy of the judgment reflecting the conviction. The facts underlying that conviction are generally inadmissible. See State v. Geyer, supra, 8; State v. English, 132 Conn. 573, 580, 46 A.2d 121 (1946); see also Tait & LaPlante, Connecticut Evidence (1976) § 7.21 (d); McCormick, Evidence (2d Ed.) § 43, p. 88.

In the present case, however, the defendant argued at trial that the robbery conviction was relevant not only to Washington’s character for veracity, but also to the question of who initially possessed the handgun which caused Washington’s injuries. This question was obviously relevant to the central factual issue presented by the evidence. According to the state’s theory of the case, the defendant shot Washington from across the room with the intent to cause serious physical injury. General Statutes § 53a-59 (a) (1). In contrast, the defendant testified that the gun discharged accidently as he attempted to remove it from Washington’s person. The jury was required to decide between these conflicting versions, and it certainly would assist that decision to know that the victim possessed a handgun shortly before the incident occurred.

While evidence of a prior conviction may be admissible as character evidence to impeach credibility, it may also be admissible as directly relevant to a material issue in the case. State v. Geyer, supra, 6; State v. McDermott, 190 Conn. 20, 25, 458 A.2d 689 (1983); see State v. Braman, 191 Conn. 670, 676-77, 469 A.2d 760 (1983). Evidence that the victim carried a handgun approximately one month before he was allegedly shot by the defendant would be relevant to test the credibility of his testimony that he did not possess a handgun on the evening of the shooting. “Cross-examination, in quest for the truth, provides a means for discrediting the testimony of a witness. ‘When pursued for that purpose, the examination frequently and legitimately enters into matters collateral to the main issues.’ Hirsch v. Vegiard, 137 Conn. 302, 304, 77 A.2d 85 (1950). Matters which might not be strictly relevant on direct examination may be so on cross-examination where that matter is explored for the purpose of credibility. Given that function of cross-examination in shedding light on the credibility of the witness’ direct testimony, ‘[t]he test of relevancy is not whether the answer sought will elucidate any of the main issues, but whether it will to a useful extent aid the court or jury in appraising the credibility of the witness and assessing the probative value of the direct testimony.’ McCormick, Evidence (2d Ed.) § 29.” State v. Ouellette, 190 Conn. 84, 102, 459 A.2d 1005 (1983). We find that the trial court did not allow the defendant sufficient latitude on cross-examination to inquire whether Washington possessed a handgun during the commission of the robbery for which he was convicted.

Our inquiry does not end with the conclusion that the trial court improperly limited cross-examination of the state’s witness. We now consider whether the trial court’s ruling was so prejudicial to the rights of the defendant as to deprive him of a fair trial. State v. Ruth, 181 Conn. 187, 196-97, 435 A.2d 3 (1980). Stated another way, the question is “whether the claimed erroneous action of the court would have been likely to affect the result.” State v. McClain, 171 Conn. 293, 300, 370 A.2d 928 (1976). Because the claim does not involve the violation of a constitutional right, the burden lies with the defendant to demonstrate the harmfulness of the error. State v. Talton, 197 Conn. 280, 290, 497 A.2d 35 (1985).

We do not find that the trial court’s improper restriction of the defendant’s cross-examination of Washington was harmful under the circumstances of this case. Significantly, the defendant claimed that he owned the handgun which shot Washington, and that Washington had stolen the gun from him earlier that day. Thus, there was no claim that the gun which Washington may have possessed during the robbery was the same gun that he possessed on the evening that he was shot. Moreover, defense counsel conceded at oral argument that he should have made an offer of proof showing that Washington, in fact, possessed a handgun during his commission of the earlier robbery. That no such offer was made suggests that counsel could not offer any extrinsic evidence which might have established Washington’s possession of a handgun during the robbery. And finally, although cross-examination was improperly restricted, the answers that Washington gave to questions which were allowed indicate that he would not have admitted possession of a handgun even if the matter were pursued further. When asked on cross-examination why he “just pled guilty to a robbery in the first degree, not even knowing when the robbery occurred,” Washington responded that “[tjhere was a lot behind that.” Later, on recross-examination, when asked again if he possessed a weapon on the evening that he was shot, Washington answered that he had never carried a weapon in his life. When counsel immediately asked whether he had ever “been convicted of a crime involving a weapon,” Washington answered that he had been “convicted of a crime involved in [sic] a weapon, but I never carried one.” On this record it appears unlikely that Washington would have admitted possession of a handgun, unless confronted with extrinsic evidence to the contrary.

We do not believe that the defendant has met his burden of demonstrating the harmfulness of the trial court’s erroneous ruling. State v. Talton, supra. Therefore, it is unnecessary to order a new trial.

There is no error.

In this opinion the other judges concurred.

       The following questions were asked of the victim by defense counsel.
      “Q. Mr. Washington, let me clarify one thing. You indicated that you had been convicted of the charge of robbery, is that correct?
      “A. Yeah, right. Yes.
      “Q. This incident that you testified about occurred sometime, you said, I believe, in 1981, is that correct?
      “A. Yeah.
      “Q. Now, you don’t recall what time in 1981 this was? Is that your testimony?
      “A. What’s that?
      “Q. Is your testimony that you don’t remember when in 1981 this happened to you that you got shot?
      “A. It was in the summer.
      “Q. In the summer of 1981?
      “A. Yeah.
      “Q. And by ‘the summer’—
      “A. I think it was. I can’t remember, though, cause I go through too much emotional problems. I can’t remember.
      “Q. Did you go through emotional problems back in the summer of 1981?
      “A. What do you mean by that?
      “Q. What do you mean by it?
      “A. What I’m saying—What I’m saying is that’s something I don’t want to remember, something I’m trying to wipe out of my mind.
      “Q. You mean this incident that occurred to you, getting shot, has caused you, since that time, emotional problems? Is that your testimony?
      “A. I don’t understand what you are saying.
      “Mr. Dakers: Could you read back—Excuse me. Could you read back his response to my first question because I thought he testified that he had emotional problems and couldn’t remember. Is that correct? I don’t remember what he said.
      “The Court: Read the first question and the response.
      (Whereupon, the pertinent questions and answers were read back by the court reporter.)
      “The Court: Next question.
      “Q. Are the emotional problems that you referred to something that has occurred since the time you were shot?
      “A. No. It’s—Well, I don’t think back that far. I can’t remember back that far.

        “Q. In other words, in the summer of 1981, or at or about the time you were shot—let’s call it that—did you encounter the same emotional problems?
      “A. I still don’t understand what you’re saying.
      “Q. Do you have emotional problems?
      “A. Yes.
      “Q. In what way do you have emotional problems? What do you mean by that?
      “A. I got high blood pressure and my nerves.
      “Q. And how do those symptoms affect you?
      “Mr. Devlin: Well, objection, unless we’re talking about at the time of the incident.
      “Mr. Dakers: I’m trying to find out if, in fact, whatever these emotional problems are—
      “The Court: Overruled. Read the question to the witness.
      (Whereupon, the pertinent question was read back by the court reporter.)
      “A. I don’t really know. If I knew, I wouldn’t have to be going to the doctor all the time.
      “Q. But you experienced these emotional problems prior to the time that you were shot, is that correct?
      “A. No. I’ve been having them.
      “Q. And you’d been having them before you were shot, is that correct?
      “A. Yes. Yes, sir.
      “Q. And whatever they are, you had them at the time that you were shot, is that correct?
      “A. Yes.
      “Q. Now, you can’t recall specifically the date that you were shot?
      “A. I can’t recall if it was in the summer or the winter.
      “Q. Whether it was in the summer or the winter of 1981?
      “A. No, I can’t recall what it was.
      “Q. But I think Mr. Devlin asked you on direct examination, some time after this incident, the shooting, your being shot, you were arrested for a robbery or convicted of a robbery, is that correct?
      “A. Yes.
      “Q. Now, first of all, was that a robbery in the first degree?
      “A. I can’t remember that.
      “Q. Are you the same gentleman that was convicted of robbery in the first degree on March 17 of 1981?
      “A. Yes. I did some time for it, too.
      “Q. Now, when did you go to Somers Prison for this robbery in the first degree?

        “A. I didn't go straight to Somers. They had me at Whalley Avenue.
      “Q. When you were arrested for the crime of robbery in the first degree?
      “A. After I got out of the hospital—I didn’t get out of the hospital. They arrested me in the hospital.
      “Q. So at the time you were in the hospital recovering from being shot, you were arrested for the crime of robbery in the first degree by the New Haven Police Department?
      “A. No.
      “Q. Okay. Then what?
      “A. Ansonia, I think, came and got me, Ansonia Police.
      “Q. You were arrested by the Ansonia Police Department for the crime of robbery in the first degree while you were in the Yale-New Haven Hospital recovering from being shot, is that correct?
      “A. Right.
      “Q. So that when you recovered from this incident, did you go directly to jail?
      “A. Yes.
      “Q. And the reason you went to jail was because you hadn’t made bond on the robbery in the first degree—
      “A. Yes.
      “Q.—for which you were arrested while you were at Yale-New Haven Hospital, is that correct?
      “A. Yes.
      “Q. Now, when did that robbery in the first degree occur?
      “Mr. Devlin: I’m going to object, your Honor. I think we’re a little far afield here on that.
      “The Court: Do you claim it?
      “Mr. Dakers: I do, your Honor. I claim it because of two reasons: One, because I was under the impression from direct examination that he had committed a robbery at some time after this incident, when apparently it is before, and I want to clarify when that was. Second of all, if he in fact had pending a robbery arrest, it may be that this would influence his testimony in this case and to the police at the time he was in the hospital. I think it’s a matter that might affect his credibility even as to the statements he made back in the hospital whenever it was in 1981 that he was shot, and I think it’s appropriate—
      “Mr. Devlin: He already testified he wasn’t arrested until he was at the hospital, released from the hospital and arrested then. So I don’t see where that second ground cuts any—I’ll withdraw my objection specifically as to the date, but I'll renew it if we get further into this.
      “The Court: Next question.

        “Q. When did the incident occur, the robbery occur, for which you were arrested at the hospital?
      “A. I don’t know, I can’t remember.
      “Q. You don’t know?
      “A. No, sir.
      “Q. Do you remember the incident at all?
      “A. No, I don’t.
      “Q. You know you were convicted of a robbery in the first degree?
      “A. I know that.
      “Q. You know that you were sentenced to Somers?
      “A. Yes.
      “Q. But you have no idea when that robbery occurred?
      “A. No, I don’t.
      “Q. Do you know what the allegations were against you? Were you charged and convicted of possession of a pistol in this robbery?
      “A. No.
      “Mr. Devlin: Objection, your Honor. I’m going to object because I think getting into the details of the crime is improper, and I would object to it.
      “Mr. Dakers: I would say it’s completely relevant, your Honor, because a robbery in the first degree—for me to be aware that this witness was convicted of a felony, more specifically, a robbery in the first degree, and if that robbery occurred at or around the time of this incident and involved the possession of a handgun, I think it is extremely appropriate to this case.
      “The Court: Objection sustained.
      “Mr. Dakers: Exception, your Honor?
      “The Court: Exception noted.
      “Q. You don’t recall when you committed the crime of robbery in the first degree, is that correct?
      “A. I was—I had said that I did that. You see, when I went to court for that, a lot was behind that.
      “Mr. Devlin: I object to this, your Honor.
      “A. (continuing) A lot was behind that.

        “Mr. Devlin: The answer is not responsive, number one; and I think the question was ‘when,’ and I don’t think that was responsive to ‘when.’
      “The Court: I’ll treat it as a motion to strike and grant it.
      “Q. You pled guilty to the crime of robbery in the first degree at some point, is that correct?
      “A. Yes.
      “Q. Did you know, at the time you pled guilty to the crime of robbery in the first degree, when that robbery was supposed to have occurred?
      “A. No, sir, I didn’t.
      “Q. You just pled guilty to a robbery in the first degree, not even knowing when the robbery occurred, is that correct?
      “A. There was a lot behind that.
      “Q. There was a lot behind that?
      “A. Yes, there was, sir.
      “Q. But you are telling us now that you didn’t commit this robbery for which you pled guilty?
      “Mr. Devlin: Objection, your Honor. I think you struck the answer to the question which got into that, and I don’t think that’s a proper inquiry. I think this goes—The inquiry regarding this robbery, which you’ve heard about twenty-five times now in Mr. Dakers’ questioning, is abusing it to some extent, and I would object.
      “Mr. Dakers: I would submit, your Honor, that the entire case rests upon the credibility of this witness and the believability of what he has said, and I would submit to your Honor that if he is stating—On direct, it was brought out he was convicted of the crime of robbery in the first degree.
      “The Court: For a limited purpose which is well-known to you.
      “Mr. Dakers: Yes, your Honor. I have an opportunity, it seems to me, since that is appropriate indication to the jury of credibility, to explore the credibility of this witness in what he perceives to have been whether he was properly convicted of that robbery in the first degree.
      “The Court: Objection sustained.
      “Mr. Dakers: Exception, your Honor?
      “The Court: Exception noted.”

       The relevant portion of recross-examination of the victim by defense counsel follows:
      “Q. I’ll ask you again, Mr. Washington. I think I asked you this yesterday, or you volunteered it. At the time of the shooting, it’s your testimony that you were not in possession of a weapon, is that correct?
      “A. At the time of the shooting?
      “Q. When you got shot, when you were shot, you didn’t have a weapon, is that correct?
      “A. You see, I never carried no kind of weapon in my life.
      “Q. You never carried a weapon?
      “A. Never carried a weapon.
      “Q. You’ve never been convicted of a crime involving a weapon?
      “A. I have been convicted of a crime involved in [sic] a weapon, but I never carried one.
      “Q. You never carried a weapon?
      “Mr. Devlin: I’m going to object, your Honor, because I think the original question was relevant as to the night in question. In terms of other time frames, I would object.
      “The Court: That objection is sustained. The question and answer may be stricken.
      “Q. You did not have in your possession that evening, the night that you were shot, a weapon?
      “A. No.
      “Q. A handgun?
      “A. No.”


author: Dannehy, J. Shea, J.,

text:
    Lisa Ann Fox et al. v. First Bank et al.
    (12507)
    Healey, Shea, Dannehy, Santaniello and Callahan, Js.
    Argued October 11
    decision released December 10, 1985

      Daniel V. Presnick, for the appellant (named plaintiff).

      Ronald J. Cohen, with whom was Stanley E. Párese, for the appellees (defendants).
   Dannehy, J.

The trial court, Fracasse, J., dismissed the plaintiffs’ action against the defendants for failure to comply with orders of the court. The only question presented by this appeal which can be regarded as decisive is whether an appropriate sanction was imposed.

The controlling facts are conceded. On September 11, 1980, the plaintiff, Lisa Ann Fox, obtained a loan from the named defendant, First Bank (hereinafter the defendant), for the purchase of a 1980 Triumph TR7 convertible. When the plaintiff defaulted in the payment of sums due under the retail installment contract, the defendant, on September 2,1981, repossessed the car without judicial intervention in accordance with General Statutes § 42-98. On the same day that the car was repossessed, the plaintiff filed this action for wrongful repossession and the trial court, Hadden, J., without a hearing, issued a temporary restraining order to prevent the sale or transfer of the car. On September 28, 1981, the defendant requested that the temporary restraining order be dissolved. The trial court, Berdon, J., denied the request on January 13, 1982. When the defendant applied for reargument, the plaintiff asked for the return of the car pending the litigation. On April 8, 1982, the trial court modified the temporary restraining order. Under the terms of the modified order the defendant returned the car to the plaintiff upon condition that she make monthly payments to the defendant in the amount established by the underlying retail installment contract. Subsequently, a motion by the plaintiff that she be relieved from her obligation of monthly payments was denied.

The plaintiff concedes that the temporary restraining order for monthly payments was valid, and that her failure to obey the order was punishable by contempt. It is also undisputed that on three separate occasions the plaintiff was found in contempt of court for failure to make the monthly payments as required by the temporary restraining order. At no time did she appeal from any of the contempt proceedings. The plaintiff does not claim that she was denied a hearing or the opportunity to appear and purge herself of the contempt. Nor does it appear from the record that the plaintiff sought to have the temporary restraining order vacated or modified due to changed circumstances.

The first finding of contempt was made after a hearing in response to the defendant’s motion for contempt dated September 15,1983. At that hearing the defendant introduced evidence, in the form of an affidavit of a First Bank employee, to establish the balance in arrears and the amount due from the plaintiff. The plaintiff was not present at the hearing. Her attorney did not introduce any evidence to show that the plaintiff was not in arrears nor any evidence of an inability on her part to comply with the April 8,1982 order. The plaintiff’s attorney stated, “I would ask simply, your Honor, that Ms. Fox be given thirty days to bring the account current.” The court, Fracasse, J., on September 26,1983, cited the plaintiff for contempt of court.

Less than four months later, on January 12, 1984, the plaintiff was for the second time found guilty of contempt of the court’s April 8, 1982 order. At the hearing on the defendant’s motion for contempt dated November 17,1983, the defendant introduced an affidavit of a First Bank employee to establish that while the plaintiff had paid the arrearage up to September, 1983, she had failed to make any subsequent payments. Again, the plaintiff was not present at the hearing. Her attorney stated, “[First Bank’s] [c]ounsel indicated to me that he hasn’t received any payments, and I have no evidence to contradict that, your Honor.” The plaintiff did not offer any evidence of her inability to make the payments ordered by the court. Her attorney stated, “I indicated to my client that she should be making payments, but I have been informed that her fiance is taking her to Puerto Rico for a brief vacation.” The court, Fracasse, J., for the second time, found the plaintiff in contempt of court.

On April 10, 1984, at the behest of the defendant, the plaintiff for the third time was found to be in contempt of the court’s April 8,1982 order. This third finding of contempt was made after a hearing at which the defendant introduced the affidavit of a First Bank employee to establish that while the plaintiff had substantially paid the arrearage accumulated as of January 12,1984, she had failed to make payments for the months of February and March and was again in arrears. Once again the plaintiff did not appear for the hearing, and the trial court was given no explanation of her failure to comply with its earlier order. Her attorney could only concede that “[the plaintiff is] behind at this time in her payments.” He stated, “[a]ll I can represent to the Court, your Honor, is I’ve spoken to Miss Fox, and she indicated that one of the problems that she has had is that her grandfather has recently passed away. I’m not exactly sure how that is going to relate to this particular matter and her position.” In answer to these statements made during the hearing, the defendant pointed out to the court that it had invited Miss Fox to provide documentation of hardship more than a month earlier and that she had declined to do so.

At the conclusion of the April 9,1984 contempt proceeding, the trial court ordered that the plaintiff pay to the defendant the arrearage through April, 1984, together with attorney’s fees, by April 16,1984, or, failing that, the action would be dismissed. By April 17, 1984, no payment had been made. On April 18, 1984, Judge Fracasse accordingly dismissed the action. The plaintiff appealed, claiming among other reasons of appeal, that the court erred in dismissing the case, and in invoking the “strongest possible sanction.”

This court’s role in reviewing an order of contempt is very limited. Adjudications of contempt are final and may be reviewed only on questions of jurisdiction such as whether the court had authority to impose the punishment inflicted or whether the act for which the penalty was imposed could constitute a contempt. Friedlander v. Friedlander, 191 Conn. 81, 84, 463 A.2d 587 (1983). The claims of error challenge neither the authority of the court nor the finding that the act of which the contempt consisted constituted a contempt. We must therefore presume that the trial court had authority and a sufficient basis for the imposition of sanctions. The sole issue before us is whether, under the circumstances of this case, the trial court abused its discretion in dismissing the action for failure to comply with orders of the court.

It is well settled that the imposition of sanctions to compel the observance of its orders rests within the discretion of the trial court and will not be disturbed on review unless there is an abuse of discretion. Thode v. Thode, 190 Conn. 694, 462 A.2d 4 (1983); In re Mongillo, 190 Conn. 686, 461 A.2d 1387 (1983). Generally, a sanction should not serve as a punishment or penalty. Courts should be reluctant to employ the sanction of dismissal except as a last resort. Such drastic action is not, however, an abuse of discretion where a party shows a deliberate, contumacious or unwarranted disregard for the court’s authority.

With these observations as a frame of reference we conclude that the trial court did not abuse its discretion in dismissing the action. Our review of the record shows that the plaintiff did not comply with the April 8, 1982 court order to make monthly payments to the defendant, although she was duly notified of that order. On September 26,1983, and again on January 12,1984, the first two occasions on which the plaintiff was found in contempt, she complied with the court’s order only to the extent of her arrearage as of the date of the contempt findings. The record is devoid of any reason why the plaintiff failed to make continuing payments as required. During this period the court expended a great deal of time entertaining the defendant’s motions and trying to accommodate the plaintiff. On April 10,1984, the trial court finally allowed the plaintiff six more days within which to purge herself. April 16 came and went without a response from the plaintiff. The record does not reveal any explanation by the plaintiff for her noncompliance. These facts demonstrate sufficient disregard for the court’s order and deliberate disregard of the authority of the court to warrant the trial court’s imposition of a sanction for noncompliance. Moreover, the plaintiff’s course of action for almost two years justified the court’s conclusion that such conduct would have persisted. We cannot conclude that the judgment of dismissal under the circumstances was an abuse of discretion.

There is no error.

In this opinion Healey, Santaniello and Callahan, Js., concurred.

Shea, J.,

dissenting. I disagree with the majority on both procedural and substantive grounds.

The dismissal of the complaint by the trial court as a sanction for contempt is wholly unprecedented in this state and unauthorized by our rules of practice. A motion to dismiss a suit is proper only for failure to prosecute with reasonable diligence or where there is “(1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper service, (4) insufficiency of process, [or] (5) insufficiency of service of process.” Practice Book §§ 251, 143. It is not contended that any of these grounds for a dismissal exist in this case. The court, therefore, erred in granting the dismissal sought by the defendant’s motion as a sanction for the plaintiff’s alleged contempt.

Practice Book § 351 provides that “[i]f a party fails to comply with an order of court . . . he may be non-suited or defaulted by the court.” The trial court did not invoke this more moderate sanction for the alleged disobedience of a court order by the plaintiff. The entry of a nonsuit would, of course, have allowed the plaintiff four months to open that judgment. Practice Book § 377. The possibility that the judgment might be opened was no justification for ordering a dismissal on grounds not authorized by §§ 143 or 251.

Although the plaintiff has not raised the issue, my reading of the record indicates a defective jurisdictional basis for the finding of contempt. The finding of contempt by the trial court, Fracasse, J., was based on the plaintiffs failure to make payments on a debt owed to the defendant pursuant to an order by the court, Berdon, J., of April 8, 1982. This order directed that the defendant return the automobile it had previously repossessed to the plaintiff on the condition that she provide collision insurance and make payments of $132.28 monthly to the defendant. The order of payments was simply a condition under which the plaintiff was permitted to retain possession of the car during the pendency of the litigation. Fairly construed, the order did not impose an unqualified obligation on the plaintiff to pay her debt to the defendant but only a conditional one to be fulfilled in order to continue her use of the car.

Indeed, the court had no authority to direct the plaintiff to make the payments to her creditor under the sanction of contempt for failure to do so. The practice of imprisonment for ordinary debts was abandoned long ago and it defies credulity to assume that the court, Berdon, J., in entering the order that is the basis for the finding of contempt intended that the plaintiffs noncompliance might result in her incarceration or other punishment for contempt. It would be most unusual for a court to make its contempt power available to a creditor in the collection of an ordinary debt. The terms of the order imposed only a conditional obligation in lieu of the security normally required for issuance of a temporary injunction. See General Statutes § 52-472. The failure of the plaintiff to fulfill the condition was, of course, a ground for terminating the temporary injunction and allowing the defendant to repossess the car. The plaintiffs default on the debt she owed the defendant did not under the order, as properly construed, subject her to punishment for contempt.

I would find error in the judgment of dismissal and remand for further proceedings.

       While there were three named plaintiffs in the original action, only Lisa Ann Fox (hereinafter the plaintiff) has appealed the dismissal.

       General Statutes § 42-98 provides in part: “foreclosure, (a) repossession. When the retail buyer is in default in the payment of any sum due under the retail instalment contract or instalment loan contract, or in the performance of any other condition which such contract requires him to perform, or in the performance of any promise, the breach of which is by such contract expressly made a ground for the retaking of the goods, the holder of the contract may retake possession thereof. Unless the goods can be retaken without breach of the peace, it shall be retaken by legal process, but nothing herein contained shall be construed to authorize a violation of the criminal law. In the case of repossession of any motor vehicle without the knowledge of the retail buyer, the local police department shall be notified of such repossession immediately thereafter. In the absence of a local police department or if the local police department cannot be reached for notification, the state police shall be promptly notified of such repossession.
      “(b) notice of intention to repossess. Not less than ten days prior to the retaking, the holder of such contract, if he so desires, may serve upon the retail buyer, personally or by registered or certified mail, a notice of intention to retake the goods on account of the buyer’s default. The notice shall state the default and the period at the end of which such goods will be retaken, and shall briefly and clearly state what the retail buyer’s rights under this subsection will be in case such goods are retaken. If the notice is so served and the buyer does not perform the conditions and provisions as to which he is in default before the day set for retaking, the holder of the contract may retake said goods and hold such subject to the provisions of subsections (d), (e), (f), (g) and (h) of this section regarding resale, but without any right of redemption.
      “(c) redemption. If the holder of such contract does not give the notice of intention to retake, described in subsection (b), he shall retain such goods for fifteen days after the retaking within the state in which they were located when retaken. During such period the retail buyer, upon payment or tender of the unaccelerated amount due under such contract at the time of retaking and interest, or upon performance or tender of performance of such other condition as may be named in such contract as precedent to the retail buyer’s continued possession of such goods, or upon performance or tender or performance of any other promise for the breach of which such goods were retaken, and upon payment of the actual and reasonable expenses of any retaking and storing, may redeem such goods and become entitled to take possession of the same and to continue in the performance of such contract as if no default had occurred. The holder of such contract shall within three days of the retaking furnish or mail, by registered or certified mail, to the last known address of the buyer a written statement of the unaccelerated sum due under such contract and the actual and reasonable expense of any retaking and storing. For failure to furnish or mail such statement as required by this section, the holder of the contract shall forfeit the right to claim payment for the actual and reasonable expenses of retaking and storage, and also shall be liable for the actual damages suffered because of such failure. If such goods are perishable so that retention for fifteen days as herein prescribed would result in their destruction or substantial injury, the provisions of this subsection shall not apply and the holder of the contract may resell the goods immediately upon such retaking.”

       The dissent implies what is certainly true that a trial court may not impose sanctions which are intended primarily as punishment and that dismissal, being such a drastic sanction, should be employed only as a last resort. The dissent does not recognize that the burden was on the plaintiff to establish by affidavit or otherwise that her persistent failure to comply with the order of the court was warranted by extenuating circumstances or events. The imposition of sanctions is addressed to the sound discretion of the trial court. While the trial court surely would have been justified in imposing a less severe sanction, we cannot say on the state of this record that the court abused its discretion in taking the action it did. The dissent equivocates when it characterizes as “conditional” Judge Berdon’s order of April 8, 1982. An order of the court must be obeyed until it has been modified or successfully challenged, and the consequences for noncompliance may be severe indeed. We need not consider the propriety of “imprisonment for ordinary debts,” which, as observed by the dissent, “was abandoned long ago.” If such were the case before us, our decision might well be advised by different considerations. But the plaintiff here asked for return of the car and accepted it subject to orders, perhaps in the form of “conditions,” imposed by the court. As the architect of her own predicament, the plaintiff may not be heard to complain for any of the reasons expressed in the dissenting opinion.

       The order of April 8, 1982 by the court, Berdon, J., was as follows:
      “The plaintiff moves for a modification of the temporary order seeking a return of the automobile pending the litigation. The court for the reasons set forth in this and the original memorandum of January 13, 1982, is of the opinion that the same should be granted under the following condition which will fully protect both parties.
      “Accordingly, the temporary restraining order is hereby amended as follows: Upon the defendant filing with this court a certificate from an insurance company licensed to do business in Connecticut, insuring the said automobile which is subject matter of this action with collision insurance for its full fair market value, with a cash deductible of no greater than $100.00 and the defendant First Bank listed as a loss payee to the extent of its interest in the automobile, and the payment of $132.28 to counsel for the defendant to be held in escrow (and a like payment each and every month thereafter until further order of the court), the defendant First Bank shall cause to be delivered to the plaintiff the said 1980 convertible, Triumph, TR7, vehicle identification number 7C7-11458UCF. So there is no further confusion, the order contemplates that the defendant First Bank make said vehicle available for delivery to the plaintiff upon the plaintiff fulfilling the above conditions free and clear of any liens and other charges resulting from the taking and storage of said vehicle by the defendant on September 2, 1981. Furthermore, the court finds, for good cause shown, that the plaintiff not be required to furnish bond with surety; the defendants’ lien on the automobile and the insurance policy is adequate substitute.”