text:
    State of Connecticut v. Daniel Vinal, Jr. State of Connecticut v. James Avis
    (11055)
    (11062)
    Peters, C. J., Shea, Dannehy, Santaniello and Callahan, Js.

      Argued December 4, 1985
    decision released February 18, 1986

      F. Mac Buckley, with whom, on the brief, was Susan K. Smith, for the appellant (defendant Vinal).

      TemmyAnnPieszak, assistant public defender, with whom were Joette Katz, public defender, and, on the brief, Jacob Coore and Richard Joselson, legal interns, for the appellant (defendant Avis).

      CarlSchuman, assistant state’s attorney, with whom, on the brief, were Dennis A. Santore, state’s attorney, and Elizabeth Fitzpatrick, law student intern, for the appellee (state).
   Peters, C. J.

The dispositive issue in each of these appeals is whether the trial court erred in refusing to sever the joint trial of the two defendants. One defendant, Daniel Vinal, Jr., was charged with murder in violation of General Statutes § 53a-54a. The other defendant, James Avis, was charged with felony murder in violation of General Statutes § 53a-54c. After a joint trial, the trial court accepted jury verdicts finding both defendants guilty as charged. The defendants appeal from these judgments.

The jury could reasonably have found the following facts concerning the incident that gave rise to the charges. Early on the morning of October 8,1978, the defendants were together in a Torrington bar where they saw the victim. At approximately 5 a.m., the victim left the bar and drove toward Litchfield. The defendants departed immediately thereafter and followed the victim in an automobile driven by Avis. In Litchfield, the defendants forced the victim to the side of the road. They stopped their car nearby, got out, and approached the victim’s car. While the victim remained in the driver’s seat of his car, Avis attempted to take his wallet from him. When the victim resisted, Vinal shot him. Avis then took the wallet and the defendants fled. The victim died of his gunshot wound.

Later that day, state police officers questioned Vinal and Avis about the victim’s death but made no arrests. After his interview, Avis left the state. Vinal, who remained in Connecticut, was arrested on October 24, 1978, and charged with having murdered the victim. In December of 1978, Vinal, his attorney, and his investigator traveled to New Hampshire to speak with Avis whom they had located there. After several meetings, Avis prepared, in the presence of Vinal’s investigator, a written confession in which he admitted that he had shot and robbed the victim and that Vinal had been unconscious during the incident. When Vinal returned to Connecticut, he submitted the confession to the Connecticut state police who immediately obtained a warrant for Avis’s arrest. In June, 1980, police in Seattle, Washington, arrested Avis and returned him to Connecticut where he was then charged with felony murder. The defendants were tried together despite numerous motions by each defendant for severance.

On appeal, both defendants claim that the trial court erred in failing to sever the two cases. Avis also contends that the trial court should have suppressed his written confession. Vinal claims that the trial court should have dismissed his indictment and that the state presented insufficient evidence to support his murder conviction.

I

Both Avis and Vinal argue that the trial court committed harmful error by requiring that they be tried together. We agree.

The rules that govern motions for separate trials are well established in this state. When two or more criminal defendants are scheduled to be tried together and one or more moves for severance, separate trials “will be ordered where the defenses of the accused are antagonistic, or evidence will be introduced against one which will not be admissible against others, and it clearly appears that a joint trial will probably be prejudicial to the rights of one or more of the accused. The test for the trial court is whether substantial injustice is likely to result unless a separate trial be accorded.” State v. Haskins, 188 Conn. 482, 450, 450 A.2d 828 (1982); State v. DeWitt, 177 Conn. 637, 644, 419 A.2d 861 (1979); State v. Varricchio, 176 Conn. 445, 447-48, 408 A.2d 239 (1979); State v. McLucas, 172 Conn. 542, 559, 375 A.2d 1014, cert. denied, 434 U.S. 855, 98 S. Ct. 174, 54 L. Ed. 2d 126 (1977); State v. Holup, 167 Conn. 240, 245, 355 A.2d 119 (1974); State v. Klein, 97 Conn. 321, 324, 116 A. 596 (1922); State v. Castelli, 92 Conn. 58, 63, 101 A. 476 (1917); State v. Brauneis, 84 Conn. 222, 226, 79 A. 70 (1911). “ ‘[T]he phrase “prejudicial to the rights of [one or more of the accused]” means something more than that a joint trial will probably be less advantageous to the accused than separate trials.’ ” State v. Haskins, supra, 450; State v. DeWitt, supra, 647-48; State v. McCarthy, 130 Conn. 101, 103, 31 A.2d 921 (1943). The trial court enjoys wide latitude in applying this standard. The joint trial of defendants who are charged with crimes that arise from a single incident often benefits the defendants as well as the judicial system. On appeal, we will reverse a trial court’s ruling on joinder only where the trial court commits an abuse of discretion that results in manifest prejudice to one or more of the defendants. See, e.g., United States v. Carpentier, 689 F.2d 21, 27-28 (2d Cir. 1982), cert. denied, 459 U.S. 1108, 103 S. Ct. 735, 74 L. Ed. 2d 957 (1983); United States v. Werner, 620 F.2d 922, 928 (2d Cir. 1980); United States v. Crawford, 581 F.2d 489, 491 (5th Cir. 1978); United States v. Robinson, 432 F.2d 1348, 1351 (D.C. Cir. 1970).

Vinal and Avis argue that the trial court should have granted their motions for severance because their defenses were fundamentally antagonistic. To decide whether severance was necessary, we must scrutinize the strategies employed by each defendant at trial and determine, in light of the trial court’s ongoing duty to monitor the fairness of the joint trial, whether conflict between the defendants tainted the proceeding. Such an inquiry in this case reveals that the defendants’ defenses at trial were fundamentally incompatible and that the trial court abused its discretion in trying the defendants together. The state, in its bills of particulars, alleged that either Vinal or Avis had shot the victim. At trial, Vinal claimed that Avis had killed the victim. Avis defended by blaming Vinal for the murder. Each defendant introduced evidence that incriminated the other. Each attacked evidence that tended to exonerate the other. During their closing arguments, each vigorously sought to convince the jury that the other alone had killed the victim.

Central to the conflict between the defendants was Avis’s written confession in which he admitted that he had killed the victim and that Vinal had not participated in the crime. The confession was one of the few pieces of evidence at trial that directly suggested Vinal’s innocence and Avis’s guilt. Although it was the state that introduced the confession into evidence, Vinal adopted it as the centerpiece of his defense, claiming that it created an undeniable source of doubt about his culpability that precluded a finding of guilty. Avis, on the other hand, devoted much of his defense to challenging the credibility of the confession. His attorney claimed during final argument that Avis had falsely assumed responsibility for the murder as a ploy to extricate Vinal. Avis’s attorney explained that, at the time his client confessed, Vinal had already been charged with murder and Avis believed that he could safely claim guilt because he was beyond the reach of Connecticut authorities while he was living in another state. Avis’s attorney also brought to light through cross-examination dubious circumstances surrounding Avis’s decision to confess, implying that Vinal and his representatives had tricked Avis into confessing to a crime that he had not committed. Avis’s attorney suggested further that Avis was not the true author of the confession, claiming that Avis’s vocabulary did not contain several words that appeared in the confession and that the confession was not written in the style of a man of Avis’s verbal ability. Vinal’s attorney did his best to refute Avis’s attacks on the confession. During direct examination of his own witnesses, and even during cross-examination of the state’s witnesses, Vinal’s attorney continually sought to establish the credibility of the confession.

Each defendant also employed various other tactics designed to shift blame for the crime to his codefendant. For example, Vinal introduced evidence of Avis’s flight from the state after the murder and of Avis’s use of various names during the months following the murder, alleging that the evidence was indicative of Avis’s consciousness of guilt. During final argument, Vinal’s attorney suggested that Avis had had a financial motive to kill the victim and reminded the jury that Avis had known the victim and had talked with him several hours before the murder. Avis’s attorney emphasized in his closing argument the existence of a long list of evidence that implicated Vinal in the murder.

In light of this record we must conclude that Avis and Vinal should have been tried separately. The trial court implied, in its memorandum of decision denying the defendants’ motions to sever, that severance due to antagonistic defenses is necessary only when codefendants testify against each other at trial. Our case law supports no such proposition. See State v. Gordon, 170 Conn. 189, 365 A.2d 1056 (1976); State v. Holup, supra. The state argues that the joint trial prejudiced neither defendant because the trial court admitted no evidence that would have been inadmissible against either defendant in separate trials and because neither defendant raised arguments detrimental to his codefendant that would not have been available to the state at separate trials. Defendants who offer fundamentally incompatible defenses at a joint trial need not, however, make showings of such prejudice to establish the substantial injustice necessary to support a finding of error. When, as in this case, the jury can reasonably accept the core of the defense offered by either defendant only if it rejects the core of the defense offered by his codefendant, the defenses are sufficiently antagonistic to mandate separate trials. See State v. Gordon, supra; State v. Holup, supra; see also United States v. Berkowitz, 662 F.2d 1127 (5th Cir. 1981). If defendants are tried jointly in this context, “a substantial possibility exists ‘that the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty.’ United States v. Eastwood, 489 F.2d 818, 822 n.5 (5th Cir. 1973) (quoting United States v. Robinson, 432 F.2d 1348, 1351 (D.C. Cir. 1970)).” United States v. Berkowitz, supra, 1134. Moreover, even where one defendant is found not guilty, it becomes likely under these circumstances that the conviction of the losing defendant is more a result of his codefendant’s success in defending himself than it is a product of the state’s satisfaction of its constitutional duty to prove the accused guilty beyond a reasonable doubt. In this case, both Avis and Vinal, out of necessity, sought to blame each other for the victim’s death and constantly fought to frustrate each other’s attempt to create doubt in the minds of the jurors. The trial court abused its discretion by holding a joint trial. We order that Vinal and Avis be retried separately.

II

Because we find harmful error in the trial court’s failure to grant the defendants’ motions for severance, we need consider only those additional claims asserted by the defendants that are likely to arise again at retrial and those which, if resolved in favor of either defendant, would result in his acquittal.

Avis raises only one additional issue that we must consider on appeal. He claims that the trial court should have refused to admit his written confession into evidence because Vinal’s attorney had obtained the confession improperly. According to Avis, Vinal’s attorney violated Disciplinary Rule 7-104 (A) (2) of the Canons of the Code of Professional Responsibility by persuading Avis to confess in 1978. Disciplinary Rule 7-104 (A) (2) requires that “[d]uring the course of his represention of a client a lawyer shall not . . . [gjive advice to a person who is not represented by a lawyer, other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of his client.” Avis maintains that evidence obtained in violation of Disciplinary Rule 7-104 (A) (2) is inadmissible and that therefore the trial court erred. Because Avis did not raise this claim at trial, we do not review its merits on appeal.

This court reaches the merits of issues not raised below only where the trial court has committed plain error; Practice Book § 3063; where “a new constitutional right not readily foreseeable has arisen between the time of trial and appeal”; State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973); or where “the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial.” Id.; see State v. Preyer, 198 Conn. 190, 502 A.2d 858 (1985). Avis concedes that his claim implicates no newly recognized constitutional right and that it does not involve the denial of a fundamental constitutional right and a fair trial. Instead, he urges us to hold that the trial court’s failure to exclude the confession was plain error. We decline to so hold.

Practice Book § 3063 permits us “in the interests of justice [to] notice plain error not brought to the attention of the trial court.” We invoke this power only in extraordinary circumstances “where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985). For example, we have found plain error where a trial court ignored a controlling statute that the legislature enacted to effectuate a fundamental right; State v. Burke, 182 Conn. 330, 331-32, 438 A.2d 93 (1980); Hartford Federal Savings & Loan Assn. v. Tucker, 181 Conn. 607, 609, 436 A.2d 1259 (1980); and where the trial court failed to apply an analogous procedural rule. State v. Pina, 185 Conn. 473, 482, 440 A.2d 962 (1981).

We cannot in this case characterize as plain error the trial court’s failure to announce, sua sponte, that evidence is inadmissible when it has been obtained in violation of a disciplinary rule of professional responsibility. Avis has cited no precedent for such a treatment of Disciplinary Rule 7-104 (A) (2) in this or any other jurisdiction and we know of none. It would be unreasonable to expect the trial court to make any ruling on this issue without a request from one of the parties. Moreover, because Avis did not raise this claim at trial, the record on appeal is inadequate for us to determine whether Vinal’s attorney violated Disciplinary Rule 7-104 (A) (2) at all. We do not know, for example, whether the attorney in fact gave Avis professional advice nor whether the conduct of the attorney’s investigator was attributable to the attorney for the purposes of this rule. Avis remains free to pursue this claim at retrial. We do not review it here.

Ill

Vinal raises three additional issues that we must consider. He claims that the trial court erred in failing: (1) to dismiss his indictment; (2) to acquit him after the state introduced evidence that exonerated him; and (3) to find that the state failed to prove that he possessed the requisite intent to murder. We find error in none of these claims.

A

Vinal argues that the trial court should have dismissed his indictment because the court had earlier failed to allow the grand jury that indicted him to consider Avis’s confession. During the grand jury proceedings, Vinal had sought to make the confession available to the grand jurors, but the trial court ruled that it was hearsay and refused to allow it before the grand jury. The state has since conceded that the confession was admissible as a statement against penal interest and that it was erroneously kept from the grand jury. On appeal, Vinal claims that by refusing to give the grand jury access to the confession, the state failed to satisfy its obligation to “present the grand jury with any substantial evidence that would negate the accused’s guilt, that is evidence which ‘might reasonably be expected to lead the jury not to indict.' " State v. Couture, 194 Conn. 530, 557, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985), quoting United States v. Ciambrone, 601 F.2d 616, 622 (2d Cir. 1979). Because of this, he contends, the trial court committed harmful error by denying his motion to dismiss his indictment.

We do not review this claim because to do so we would have to consult the transcript of the proceedings of the grand jury. While the record permits us to determine the exculpatory nature of the Avis confession, we would have to look to the other evidence considered by the grand jury in order to decide whether the admission of the confession would have altered the grand jury’s finding of probable cause to indict. Such an inquiry necessarily would entail a review of the grand jury transcript. Under General Statutes § 54-45a (b), however, a grand jury transcript may only be used, in subsequent proceedings against an accused, to challenge the credibility of witnesses and to prove perjury. Our use of the transcript in this case would fall within neither authorized category. Because appellants may not prevail on claims of error that depend upon the unauthorized use of a grand jury transcript, we consider this claim no further. State v. Morrill, 197 Conn. 507, 498 A.2d 76 (1985); State v. Couture, supra, 554-55; State v. Canady, 187 Conn. 281, 287, 445 A.2d 895 (1982).

B

Vinal next claims that the trial court should have granted his motion for acquittal of the murder charge because the state introduced Avis’s written confession into evidence. Vinal argues that because the state was bound by the content of the evidence it presented, and because Avis stated in the confession that Vinal did not participate in the murder of the victim, the state’s introduction of the confession rendered its case-in-chief inadequate to support his conviction of murder. We disagree.

The state’s use of the confession at trial did not preclude it from proving that Vinal had killed the victim. In Connecticut, the proponent of evidence vouches for the credibility of the evidence he presents and may directly impeach that evidence only under certain specified circumstances. See State v. Mitchell, 169 Conn. 161, 164-65, 362 A.2d 808 (1975); Delfino v. Warners Motor Express, 142 Conn. 301, 307, 114 A.2d 205 (1955); Schmeltz v. Tracy, 119 Conn. 492, 498, 177 A. 520 (1935). The proponent, however, remains free to introduce contradictory evidence and ask the jury to accept arguments that rely on that evidence. See Weiner v. Loew’s Enterprises, Inc., 120 Conn. 581, 584, 181 A. 921 (1935); State v. Guilfoyle, 109 Conn. 124, 133, 145 A. 761 (1929). In this case, the state was not bound by Avis’s assertion that Vinal remained unconscious throughout the entire incident.

In light of our holding, Vinal’s argument becomes a simple challenge to the sufficiency of the evidence supporting the jury’s conclusion that he killed the victim. In reviewing such a claim, we construe the evidence presented in the light most favorable to sustaining the verdict; State v. Braxton, 196 Conn. 685, 691, 495 A.2d 273 (1985); State v. Cimino, 194 Conn. 210, 211, 478 A.2d 1005 (1984); and then determine whether “ ‘the jury could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt.’ ” State v. Braxton, supra, quoting State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984). We have reviewed the record and conclude that the state introduced sufficient physical and testimonial evidence to support the jury’s conclusion in spite of the Avis confession.

C

The final issue raised by Vinal also involves the sufficiency of the evidence. Vinal contends that the state failed to prove that he was capable of forming the specific intent to commit murder on the morning of the victim’s death because he was intoxicated. In support of this claim he points out that all of the state’s witnesses who saw him during the hours preceding the murder testified that he was visibly intoxicated. Because the state produced no witnesses who testified to his sobriety, the defendant argues that the state failed to meet its burden of proving that Vinal possessed the requisite intent to kill the victim. We disagree.

Vinal’s argument erroneously assumes that intoxication automatically negates intent. A criminal defendant’s intoxication is relevant to the determination of his capacity to form a specific intent to commit a crime; see State v. D’Antuono, 186 Conn. 414, 423, 441 A.2d 846 (1982); see also General Statutes § 53a-7; but it is not dispositive of the issue. It is for the jury to decide, after weighing all the evidence adduced at trial, whether a criminal defendant’s intoxication rendered him incapable of forming the intent required to commit the crime with which he is charged. See State v. Smith, 185 Conn. 63, 70 n.7, 441 A.2d 84 (1981). In this case, the witnesses testified that Vinal had been drinking and that he seemed intoxicated. Nothing in their testimony required that the jury find that Vinal lacked the intent to kill. This was merely one permissible conclusion that the jury could reasonably have reached after considering the testimony. Its verdict indicates that it found that Vinal’s intoxication had not rendered him incapable of forming the intent to kill the victim. Viewing the evidence in the light most favorable to sustaining the jury’s verdict, we find no basis for disturbing its conclusion. See State v. Sinclair, 197 Conn. 574, 576, 500 A.2d 539 (1985); State v. Stepney, supra; State v. Braxton, supra.

There is error, the judgments are set aside and the cases are remanded for separate trials.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 53a-54a. murder defined, affirmative DEFENSES. EVIDENCE OF MENTAL CONDITION. CLASSIFICATION, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.
      “(b) Evidence that the defendant suffered from a mental disease, mental defect or other mental abnormality is admissible, in a prosecution under subsection (a), on the question of whether the defendant acted with intent to cause the death of another person.
      “(c) Murder is punishable as a class A felony in accordance with subdivision (2) of section 53a-35a unless it is a capital felony.”

       “[General Statutes] Sec. 53a-54c. felony murder. A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping, sexual assault in the first degree, sexual assault in the first degree with a firearm, sexual assault in the third degree, sexual assault in the third degree with a firearm, escape in the first degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants, except that in any prosecution under this section, in which the defendant was not the only participant in the underlying crime, it shall be an affirmative defense that the defendant: (A) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (B) was not armed with a deadly weapon, or any dangerous instrument; and (C) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and (D) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.”

       Avis also claims that the trial court erred in allowing the state to amend the bill of particulars against Avis during trial and in permitting the state to introduce evidence against Vinal that was highly prejudicial to Avis. In light of our disposition of this case, we need not consider these issues.

       The Court of Appeals for the Ninth Circuit has observed that joinder of defendants “expedites the administration of justice, reduces the congestion of trial dockets, conserves judicial time, lessens the burden upon citizens who must sacrifice both time and money to serve upon juries, and avoids the necessity of recalling witnesses who would otherwise be called upon to testify only once.” Parker v. United States, 404 F.2d 1193, 1196 (9th Cir. 1968); see also United States v. Robinson, 432 F.2d 1348, 1351 (D.C. Cir. 1970).

       Vinal claims alternatively that the trial court should have granted his motions for severance because, at the joint trial, the state introduced his codefendant’s confession into evidence and thereby violated Vinal’s sixth amendment right to confrontation. See Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). Our holding on the issue of antagonism between the defendants obviates the need for us to consider this claim.

       The state’s original bill of particulars accused Avis of robbing the victim and Vinal of killing the victim in the course of the robbery. During trial, the state amended the bill of particulars against Avis. The amended bill claimed that either Vinal or Avis had killed the victim.

       In contrast to the claim he raises on appeal, Avis argued at trial that Vinal’s attorney also represented him at the time he confessed and that, therefore, the attorney-client privilege rendered the confession inadmissible. The trial court found that no attorney-client privilege existed. Avis does not challenge this finding on appeal.

       In his brief, Vinal contends that the grand jury proceeding that resulted in his indictment contained several other flaws. At oral argument, Vinal conceded that this court may not review these issues on appeal.

       We note that the jury at trial heard the Avis confession and nevertheless found that the evidence proved beyond a reasonable doubt that Vinal was guilty of murder.

       “[General Statutes] Sec. 54-45a. record of grand jury proceedings. transcripts, (a) In any grand jury proceeding ordered pursuant to the provisions of section 54-45, the official stenographer of the superior court or his assistant shall make a record of the proceedings excluding the deliberations, which shall be confidential and filed with the court. Access to the transcript shall be available only to the prosecutorial official or any person accused of crime as a result of the grand jury investigation or the accused person’s attorney. The prosecutorial official or the person accused of a crime as a result of such grand jury investigation or the accused person’s attorney may obtain a copy of the transcript by paying for it.
      “(b) The transcript of such proceedings may not be used as evidence in any proceeding against the accused except for the purpose of impeaching a witness, attacking the credibility of a witness or proving inconsistent statements of a witness. The transcript may also be used as evidence in a prosecution for peijury committed by a witness while giving such testimony.”

       In November, 1982, the state constitution was amended to eliminate the requirement that a grand jury indict an accused before he is tried for any crime punishable by death or life imprisonment. The state constitution now requires that probable cause for such crimes be established at a hearing. See Conn. Const., art. I, § 8, and art. XVII.

       See footnote 1, supra.

       “[General Statutes] Sec. 53a-7. effect of intoxication. Intoxication shall not be a defense to a criminal charge, but in any prosecution for an offense evidence of intoxication of the defendant may be offered by the defendant whenever it is relevant to negate an element of the crime charged, provided when recklessness or criminal negligence is an element of the crime charged, if the actor, due to self-induced intoxication, is unaware of or disregards or fails to perceive a risk which he would have been aware of had he not been intoxicated, such unawareness, disregard or failure to perceive shall be immaterial. As used in this section, ‘intoxication’ means a substantial disturbance of mental or physical capacities resulting from the introduction of substances into the body.”


source: Caselaw Access Project

author: Peters, C. J.

license: Public Domain

text:
    Bound Brook Association et al. v. City of Norwalk et al.
    (12209)
    (12212)
    Peters, C. J., Healey, Shea, Dannehy and Santaniello, Js.
    Argued December 12, 1985
    decision released February 18, 1986

      James V. Minor, deputy corporation counsel, for the appellant (named defendant).

      PaulL. Blawie, with whom, on the brief, was Karen Reynolds, for the appellant (defendant William R. Guarnieri).

      AlanR. Spirer and Robert M. Davidson, with whom was Karan Spirer, for the appellees (plaintiffs).

      Philip M. Block filed a brief as amicus curiae.
   Peters, C. J.

The principal issue on this appeal is whether the defendants, the city of Norwalk (hereinafter Norwalk), and William R. Guarnieri, the former chief building inspector for Norwalk, fraudulently concealed the existence of a cause of action so as to toll the running of a statute of limitations. The plaintiffs, owners and former owners of houses in the Bound Brook Estates subdivision in Norwalk, commenced a suit against the defendants by complaint dated September 19, 1978. In that complaint, the plaintiffs alleged that the defendants were liable for negligence, nuisance, negligent nuisance, and fraudulent and reckless misrepresentations in connection with the construction of houses purchased by the plaintiffs. In order to avoid the defendants’ special defenses that the plaintiffs’ cause of action was time-barred, the plaintiffs affirmatively pleaded, pursuant to General Statutes § 52-595, that the defendants had “fraudulently concealed from the plaintiffs [the] existence of their cause of action.” Following a lengthy trial, the defendants unsuccessfully moved for directed verdicts in their favor. Subsequently, the jury returned verdicts for the plaintiffs against Norwalk and Guarnieri on all counts, finding that, although the action had been brought more than three years from the acts and omissions in question, the statute of limitations had been tolled by fraudulent concealment on the part of the defendants. Compensatory damages of approximately $2.3 million were awarded to the plaintiffs. Claiming that there was insufficient evidence to support the verdicts, the defendants moved the trial court to set aside the verdicts and to render judgment for the defendants notwithstanding the jury’s verdicts. These motions were denied by the trial court on May 9, 1983, and the ' defendants have appealed. We find error.

The underlying facts are not in dispute. In 1965 and 1966, Bound Brook Estates, Inc. (hereinafter Bound Brook), received the approval of the city of Norwalk’s planning commission and its common council to build a residential subdivision of 102 homes in Norwalk. Part of the land to be developed was a swamp composed of “soft, wet, marshy” soils. Bound Brook hired Harry E. Bryan, a well known professional engineer and surveyor of excellent reputation in the area, to plan the subdivision. Because of the soil conditions, Bryan determined that many of the houses would have to be built on pilings.

Subsequently, Raymond Wennik, president of Bound Brook, engineer Bryan, the defendant Guarnieri, and a deputy building inspector met to discuss the pending construction. At the time, Guarnieri had been chief building inspector of Norwalk for approximately eight years. Although he had been involved in the residential construction business for a number of years, Guarnieri had no formal education in either engineering or architecture. Guarnieri discussed with Wennik and Bryan the building code requirements for the construction of piling foundations, but indicated that neither he nor anyone on his staff had the professional engineering expertise necessary to evaluate or supervise the design and installation of the pilings. Relying on provisions of the building code which permit the building inspector to accept reports and inspections by qualified experts outside the building department, Guarnieri arranged to have engineer Bryan assume responsibility for supervising the installation of the pilings and for certifying their compliance with the building code upon completion.

Following this meeting, Guarnieri issued building permits for the project, and construction began, with untreated wood pilings used to support many houses. In accordance with his regular practice, Guarnieri opened a separate file in the building department office for each house to be constructed. When completed, each file contained the building permit, with a notation on its face that the house had a wood pile foundation; the certificate of occupancy signed by Guarnieri, certifying substantial compliance with the building and zoning regulations of Norwalk; the inspection field sheet, recording periodic inspections of the house during the construction process; a plot plan; and a letter signed and sealed by engineer Bryan, certifying that the piling foundation had been constructed in accordance with both the building code and the piling plan on file in the building department. These files were open to public inspection. In mid-1969, construction on the houses ended and Guamieri issued the final certificates of occupancy.

Shortly after construction had been completed, several houses in the Bound Brook subdivision developed serious settlement problems, necessitating the repiling of three of them by Bound Brook. Bound Brook neither applied for nor obtained building permits for this work. During the next few years, settlement problems of varying degrees developed in some additional houses, culminating in the collapse in 1976 of the ground floor of one house.

In 1977, Norwalk commissioned an engineering study of all the houses in the subdivision to determine the cause and extent of the problem and to attempt to find solutions. The study concluded that the wood pile foundations had been improperly designed, and that the use of untreated wood pilings had been inappropriate because of the fluctuating water table in the area. Following the release of this report, the plaintiffs filed the instant action.

On appeal from the judgment against them, Norwalk and Guarnieri both claim that the trial court erred in failing to direct verdicts in their favor, or to render judgment notwithstanding the verdicts, because the evidence produced at trial was insufficient to establish that they had fraudulently concealed from the plaintiffs the existence of a cause of action. Without proof of fraudulent concealment, the plaintiffs’ cause of action was barred by the statute of limitations. Because we find this claim of error to be well taken, we need not address the defendants’ other assignments of error which challenge the trial court’s rulings with regard to certain evidentiary matters, with regard to the instructions given to the jury, and with regard to sovereign immunity as a defense to Norwalk.

To establish that the defendants had fraudulently concealed the existence of their cause of action and so had tolled the statute of limitations, the plaintiffs had the burden of proving that the defendants were aware of the facts necessary to establish this cause of action; Puro v. Henry, 188 Conn. 301, 311, 449 A.2d 176 (1982); and that they had intentionally concealed those facts from the plaintiffs. Zimmerer v. G. E. Company, 126 F. Sup. 690, 693 (D. Conn. 1954); Lippitt v. Ashley, 89 Conn. 451, 480, 94 A. 995 (1915); see note, “Fraudulent Concealment of a Right of Action and the Statute of Limitations,” 43 Harv. L. Rev. 471, 474 (1929); comment, “The Application of the Doctrine of Fraudulent Concealment to Modern Federal Trade Conspiracy Cases,” 14 Conn. L. Rev. 115, 127-28 (1981). The defendants’ actions must have been “directed to the very point of obtaining the delay [in filing the action] of which [they] afterward [seek] to take advantage by pleading the statute.” Lippitt v. Ashley, supra, 480; Zimmerer v. G. E. Company, supra, 693. To meet this burden, it was not sufficient for the plaintiffs to prove merely that it was more likely than not that the defendants had concealed the cause of action. Instead, the plaintiffs had to prove fraudulent concealment by the more exacting standard of “ ‘clear, precise, and unequivocal’ ” evidence; Beckenstein v. Potter & Carrier, Inc., 191 Conn. 150, 163, 464 A.2d 18 (1983); Puro v. Henry, supra, 308; Alaimo v. Royer, 188 Conn. 36, 39, 448 A.2d 207 (1982).

The plaintiffs claim that they sustained this burden by establishing: (1) that Guarnieri, and through him Norwalk, issued the building permits and certificates of occupancy without first obtaining test results and affidavits required by the Building Code; (2) that a deputy building inspector signed misleading field inspection reports and filed them in the building department office; (3) that Guarnieri permitted the repiling of several houses without requiring building permits; and (4) that both Guarnieri and Norwalk later failed to investigate or to warn the plaintiffs or to revoke the certificates of occupancy when they became aware that settlement problems had developed in a number of houses. The defendants, on the other hand, claim that, even if these allegations were true, they do not establish that the defendants intended to conceal the cause of action from the plaintiffs. Since intent to conceal is an essential element of fraudulent concealment, they maintain that the plaintiffs have not sustained their burden of proof, and that the trial court erred in denying their motions for directed verdicts and for judgment notwithstanding the jury’s verdicts.

Our review of a trial court’s refusal to direct a verdict or to render judgment notwithstanding the verdict takes place within carefully defined parameters. We must consider the evidence, including reasonable inferences which may be drawn therefrom, in the light most favorable to the parties who were successful at trial; Bleich v. Ortiz, 196 Conn. 498, 501, 493 A.2d 236 (1985); giving particular weight to the “concurrence of the judgments of the judge and the jury, who saw the witnesses and heard the testimony . . . .’’Chanosky v. City Building Supply Co., 152 Conn. 642, 643, 211 A.2d 141 (1965). The verdict will be set aside and judgment directed only if we find that the jury could not reasonably and legally have reached their conclusion. Bleich v. Ortiz, supra, 500-501; Pinto v. Spigner, 163 Conn. 191, 192-93, 302 A.2d 266 (1972); Chanosky v. City Building Supply Co., supra, 643. After a thorough review of the extensive evidence presented in this case, we conclude that the plaintiffs failed as a matter of law to meet their heightened burden of proving that the defendants fraudulently concealed the existence of the cause of action. The jury’s verdict, therefore, cannot stand.

Contrary to the plaintiffs’ claim, the evidence that Guarnieri issued building permits and certificates of occupancy without first obtaining affidavits and test data concerning the piling foundations does not prove an intent to conceal the facts underlying the present cause of action. The evidence presented at trial established that Guarnieri’s failure to require the test data was prompted by his reliance on the representations of a professional engineer that the piling foundations met the code specifications. Such reliance on outside experts is specifically authorized by the code, especially in situations such as the instant one in which the building inspector lacks the technical expertise to handle a particular project. See Connecticut Basic Building Code (1966) §§ 108.3, 111.4, 129.11 and 129.13. There was no evidence whatsoever that Guarnieri knew when he issued the building permits and certificates of occupancy that the piling foundations as designed and constructed were deficient or that the untreated wood pilings used were inappropriate for the area, nor was there any evidence that he intended to conceal these deficiencies. His acceptance of the engineer’s conclusory certification of compliance without first obtaining affidavits and detailed test data may arguably have constituted a violation of some provisions of the building code, as the plaintiffs maintain. This conduct does not, however, without more, support a reasonable finding that Guarnieri intended to conceal from the plaintiffs the deficiencies in the piling foundations in order to delay their discovery of the cause of action.

In like manner, evidence that a deputy building inspector incorrectly completed field inspection reports falls to prove an intent to conceal the cause of action. There was no evidence whatsoever that the deputy was aware of any deficiencies in the construction of the piling foundations at the time he signed the reports. On the contrary, the evidence established that he relied on the engineer’s representations that the construction satisfied code specifications when he made his reports. The plaintiffs conceded in oral argument before this court that there was no evidence that the defendant Guarnieri knew that the inspection reports contained misleading statements. Without such knowledge, he could hardly have intended to conceal the rights the plaintiffs now claim to have. For similar reasons, even if the deputy’s actions could be deemed attributable to Norwalk, a question we do not decide, the deputy’s possible misconduct does not establish an intent to conceal on the part of Norwalk.

Similarly, the evidence that Guarnieri failed to require building permits for the repiling of several houses by Bound Brook from 1969 to 1971 does not support a reasonable inference that Guarnieri thereby intended to conceal the cause of action. The repiling process was a major undertaking involving the removal of each house from its foundation, the demolition of the concrete slab upon which it had rested, the installation of new pilings with a large and noisy diesel or drop hammer, and the replacement of the houses on newly constructed foundations. In view of the intensely public nature of this process, we conclude that Guarnieri’s failure to require building permits, even if arguably evidentiary of negligence in enforcing the building code, cannot reasonably be construed as evidentiary of an intent to conceal the problems with the houses and thus to delay the plaintiffs’ discovery of their cause of action.

Finally, the plaintiffs failed to establish that Guarnieri’s subsequent failure to warn the plaintiffs about settlement problems or to revoke certificates of occupancy after problems had developed was motivated by an intent to conceal from the plaintiffs the existence of a cause of action in order to delay their filing suit. Although Guarnieri became aware sometime between 1969 and 1971 that several houses then required repiling, the record does not clearly establish that he had notice of continuing problems in the subdivision until the ground floor of one house collapsed in 1976. At that point, Guarnieri ordered an investigation and ultimately declared two houses unsafe for occupancy. In the absence of any clear evidence that he knew of the problems before that time, his failure to act earlier could not reasonably support a finding that he intended to conceal a cause of action from the plaintiffs.

In short, after reviewing all of the evidence presented, we find as a matter of law that the plaintiffs did not sustain their burden of proof, and that the jury could not reasonably and legally have concluded that the defendants had fraudulently concealed from the plaintiffs the existence of their cause of action. Consequently, the plaintiffs’ action was barred by the statute of limitations, and the trial court erred in failing either to direct verdicts in favor of the defendants or to render judgment for the defendants notwithstanding the verdicts.

There is error, the judgment is set aside and the case is remanded to the trial court with instruction to render judgment in favor of the defendants Guamieri and Norwalk.

In this opinion the other judges concurred.

       The plaintiffs are owners or former owners of fifty-nine houses in the subdivision. In this action, they joined as defendants Bound Brook Estates, Inc., the development company; Raymond Wennik, the president of Bound Brook Estates; Harry E. Bryan, the design engineer; Louis J. Gardella, Inc., the pile driver; the city of Norwalk; and William R. Guarnieri, the Norwalk building inspector. Bryan died prior to trial and his estate defaulted in this action.

       General Statutes § 52-595 provides: “fraudulent concealment of cause OF action. If any person, liable to an action by another, fraudulently conceals from him the existence of the cause of such action, such cause of action shall be deemed to accrue against such person so liable therefor at the time when the person entitled to sue thereon first discovers its existence.”

       Verdicts were also rendered against all but one of the other defendants. Bound Brook Estates, Inc., and Raymond Wennik were found liable by the jury and subsequently reached an agreement with the plaintiffs, approved by the court, settling all claims against them for a total of $1.25 million. Only the defendant Louis J. Gardella, Inc., received a verdict in its favor. None of these defendants is a party to the present appeal.

       The plaintiffs have not challenged the jury’s finding that the action was commenced more than three years from the acts and omissions in question and so would be barred by the statute of limitations absent fraudulent concealment by the defendants. In oral argument before this court, counsel for the plaintiffs conceded that the suit would be barred by the statute of limitations if fraudulent concealment were not established.

       The city of Norwalk adopted the state building code in 1961, and this code was in effect throughout the period of construction of the subdivision.

       Two of the plaintiffs’ expert witnesses testified that only a professional engineer or architect was capable of designing a piling system.

         The text of the letter of certification is as follows: “In accordance with Building Permit Applications filed in the Office of the Building Inspector, we certify to the following: The piling and the reinforced concrete foundation for house on lot_are in accordance with the plans filed with the Office of the Building Inspector of the City of Norwalk and are in accordance with the building code and ordinances of said City of Norwalk.”
      This letter was signed and sealed by Harry E. Bryan, registered professional engineer.

       General Statutes § 52-584 provides in relevant part: “limitation of action for injury to person or property. No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of . . . .”
      General Statutes § 52-577 provides: “action founded upon a tort. No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”

       The plaintiffs, pursuant to Practice Book § 3012 (a), challenge the trial court’s instruction that reliance is a necessary element of fraudulent concealment. Because of our holding that the plaintiffs failed to prove intent to conceal, we do not address this claim.

       We do not decide whether affirmative acts of concealment are always necessary to satisfy General Statutes § 52-595, as the trial court instructed the jury, or whether a failure to act would be sufficient. See comment, “The Application of the Doctrine of Fraudulent Concealment to Modern Federal Trade Conspiracy Cases,” 14 Conn. L. Rev. 115 (1981).

       It was established that the building code requires permits for this type of repiling, and that Bound Brook never applied for them. It is unclear from the evidence whether Guarnieri learned of the repiling before it had begun, or after it was already underway.

       In view of our finding that this evidence does not establish an intent to conceal, we need not decide whether Guarnieri had a duty to investigate or to warn, or whether an intentional failure to act in such circumstances would be sufficient to establish fraudulent concealment.

       The plaintiffs also claim that Norwalk is liable because other members of the building department knew of problems in the subdivision and yet did nothing to correct them. We find no clear, -unequivocal evidence that anyone in the building department was informed of continuing problems in the subdivision after the repiling of several of the houses from 1969 to 1971. It is not necessary for us to decide whether, even if they were aware of the problems, Norwalk had a duty to investigate or to warn because we find no evidence whatsoever that any alleged inaction was motivated by an intent to conceal from the plaintiffs the existence of the cause of action.
      Instead, the only evidence on the issue indicated that, when Norwalk became aware of the seriousness of the problem in 1976, it held public hearings, authorized an engineering study which led to the filing of the instant action, and cooperated fully with the plaintiffs in their efforts to find solutions.


text:
    State of Connecticut v. Mark Jenkins
    (12587)
    Peters, C. J., Healey, Shea, Santaniello and Callahan, Js.
    Argued January 9
    decision released February 18, 1986

      Jon C. Blue, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      Roland D. Fasano, assistant state’s attorney, with whom, on the brief, was Arnold Markle, state’s attorney, for the appellee (state).
   Peters, C. J.

The only issue in this appeal is whether a trial court has discretion to suspend a part of the sentence of a person convicted of kidnapping in the first degree without the use of a firearm. The defendant, Mark Jenkins, was convicted, after a trial to a jury, of burglary in the second degree, a violation of General Statutes § 53a-102, and kidnapping in the first degree, a violation of General Statutes § 53a-92 (a) (2) (C). The trial court, after determining that it was required to impose a minimum ten year sentence without suspension for the kidnapping conviction, sentenced the defendant to concurrent sentences of two years’ imprisonment for the burglary conviction and ten years’ imprisonment for the kidnapping conviction. Finding error in the trial court’s interpretation of the applicable statutes, we remand for resentencing.

For the purposes of this appeal, it is sufficient to note that the state proved, at trial, that the defendant and Gregory Howard in the early hours of July 14, 1983, broke into the kitchen of an apartment at Brookside Avenue in New Haven. When the fifteen year old victim entered the kitchen to investigate the disturbance, the two men choked him, threatened him, and dragged him outside. The victim was dragged in the direction of a nearby park. Once the victim was no longer being choked, he began to scream and the men fled the scene. The victim ran to the home of a neighbor to report the crime. A medical examination disclosed that the victim had sustained neck injuries that were consistent with his having been choked. The defendant does not contest that this evidentiary showing was sufficient to sustain his conviction of the crimes with which he was charged.

At the sentencing proceedings, the defendant urged the trial court to consider suspending part of the ten year sentence, which is the minimum sentence for conviction under General Statutes § 53a-92. The defendant acknowledged that this statute describing the offense of kidnapping in the first degree made the offense a class A felony, and that §§ 53a-28 and 53a-29 prohibited suspension of sentences for class A felonies. However, he asked the court to read these statutes in conjunction with the provisions of § 53a-92a, governing kidnapping in the first degree with a firearm. Because the latter statute permits suspension of the sentence after one year, the defendant argued that an ambiguity existed between the statutes. He therefore urged the court to consider suspending the sentence in this case after seven years.

The trial court, although agreeing with the defendant that there was some ambiguity in the relationship between the relevant statutes, determined that it was constrained to follow §§ 53a-28 and 53a-29 and to impose a mandatory sentence. The court expressly stated to the defendant that “[pjerhaps your recommended sentence might be the better avenue to take but I don’t feel the law permits me to do so.” The record is therefore clear that the trial court, despite the defendant's argument to the contrary, ruled that it was constrained not to consider a partially suspended sentence.

Our review of the propriety of the sentencing proceedings at trial must start with a close reading of the applicable statutes. The defendant stands convicted of the crime of kidnapping in the first degree, a crime which, under General Statutes § 53a-92 (b), is punishable as a class A felony. Class A felonies other than murder are punishable, under General Statutes § 53a-35a (3), by a term of imprisonment of “not less than ten years nor more than twenty-five years.” Although General Statutes § 53a-28 authorizes the suspension of a term of imprisonment in whole or in part, and the substitution therefor of a period of probation or conditional discharge, General Statutes § 53a-29 (a) and (b) preclude probation or conditional discharge, and hence suspension of imprisonment, for class A felonies. By a logic that both parties recognize as unassailable, these statutes require the imposition of a term of imprisonment not subject to suspension upon those who, like the defendant, are convicted of a class A felony. State v. Lopez, 197 Conn. 337, 353-55, 497 A.2d 390 (1985). These statutes, read by themselves, fully support the position taken by the trial court in this case.

Unfortunately, the unassailable logic of this statutory pattern must be reconciled with the enactment, in 1975, of General Statutes § 53a-92a. That statute contains three provisions. First, it describes the elements of the new crime of kidnapping in the first degree with a firearm. Second, it forbids simultaneous conviction of this new crime and the pre-existing crime of kidnapping in the first degree. Third, and most significantly for present purposes, it provides, in subsection (b), that “[kidnapping in the first degree with a firearm is a class A felony for which one year of the sentence imposed may not be suspended or reduced by the court.” For the crime of kidnapping in the first degree with a firearm, concededly a crime more serious than that of kidnapping in the first degree, the legislature has substituted a one year nonsuspendible minimum sentence for the previously established ten year mandatory minimum sentence. The effect of the enactment of § 53a-92a (b) is to link a more serious crime with a less serious penalty.

The legislative history of the enactment of § 53a-92a reveals that it was part of a statutory package; Public Acts 1975, No. 75-380; intended to strengthen penalties for the commission of designated crimes when the commission of those crimes involved the use of firearms. 18 S. Proc., Pt. 5, 1975 Sess., pp. 2293-96 (remarks of Sen. David M. Barry); p. 2297 (remarks of Sen. Joseph P. Flynn) and; pp. 2296-97 (remarks of Sen. George L. Gunther); 18 H. R. Proc., Pt. 10, 1975 Sess., p. 4853 (remarks of Rep. James T. Healey); 18 H. R. Proc., Pt. 10, 1975 Sess., p. 4859 (remarks of Rep. Walter J. Henderson); pp. 4858-59 (remarks of Rep. Paul C. DeMennato). The legislature assumed that existing mandatory minimum sentences provided adequate sanctions for serious crimes but sought to add a one year mandatory minimum sentence for lesser class B, class C and class D felonies. The sole class A felony included in the public act is kidnapping in the first degree. As the state suggests, it is likely that the legislature simply erred in including kidnapping in the first degree in Public Acts 1975, No. 75-380, mistakenly deeming it among the “lesser crimes” requiring stiffer penalties.

The question before us, then, is how this court should deal with legislative error that mistakenly assigns a lesser penalty to a greater crime. Read literally, the statutes impose on this defendant, convicted of kidnapping in the first degree, a mandatory minimum sentence that exceeds by nine years the mandatory minimum sentence that would be faced by someone convicted of kidnapping in the first degree with a firearm. Such a discrepancy necessarily implicates the equal protection clauses of our federal and state constitutions.

To avoid a constitutional confrontation, each of the parties urges us to construe the statutes to effectuate legislative intent. They urge us to consider a variety of suggestions for interpretations that might serve to reconcile the 1975 statute with the pre-existing sentencing pattern. None of these arguments, in the form advanced by the litigants, is ultimately persuasive.

The defendant argues that we should assign primary importance to the legislative intent, in Public Acts 1975, No. 75-380, of providing more severe penalties for crimes involving the use of firearms than for those that do not involve such use. Accordingly, the defendant maintains that we should construe the statutes in their entirety to permit unlimited judicial discretion to suspend sentences in crimes not involving the use of firearms. The defendant would have us find ambiguity in §§ 53a-28 and 53a-29 so that a trial court retains discretion to suspend any sentence, even upon conviction of a class A felony. The state persuasively responds that the language of the statutes precludes such a construction. A court may suspend, imprisonment, under § 53a-28 (b) (5), only if it instead imposes a sentence of probation or of conditional discharge. Under § 53a-29 (a) and (b), a court may not impose a sentence of probation or of conditional discharge on a class A felon. Indeed, the defendant himself concedes that §§ 53a-28 and 53a-29, in the absence of § 53a-92a, unambiguously preclude the discretionary authority for which he argues, and this court has recently so held. State v. Lopez, supra.

The state offers three different constructions to implement the intent of the public act to enhance penalties for firearm-related crimes. Its first suggestion is that the new statute creates a statutory safety net to provide a minimum mandatory prison term of one year in the event that a future legislature dismantles the existing statutory framework requiring mandatory minimum sentences for class A felonies. The state itself recognizes that this interpretation “is not precisely what the legislature intended” in enacting § 53a-92a. Its second suggestion is to view § 53a-92a not as a statute that creates a new offense but rather as a penalty-enhancing statute, intended to add an additional year to the mandatory minimum for firearm-related kidnappings. Although the legislature might have enacted a penalty-enhancing statute, the language of § 53a-92a unequivocally demonstrates that it did not do so. In subsection § 53a-92a (a), the statute expressly speaks of kidnapping in the first degree and kidnapping in the first degree with a firearm as separate offenses. Finally, the state suggests that if § 53a-92a creates an irreconcilable constitutional conflict with the penal code’s other sentencing provisions, this court should rule that § 53a-92a is a nullity. The state has, however, failed to indicate the grounds, short of constitutional infirmity, upon which a court may nullify a later statute when it conflicts with one earlier enacted. “It is a well established principle of statutory construction that later enactments by the General Assembly are presumed to repeal earlier inconsistent ones to the extent that they are in conflict. Beccia v. Waterbury, 185 Conn. 445, [458-59], 441 A.2d 131 (1981); C. White & Son, Inc. v. Rocky Hill, 181 Conn. 114, 123, 434 A.2d 949 (1980); Pizzola v. Planning & Zoning Commission, 167 Conn. 202, 206, 355 A.2d 21 (1974). . . . Although repeal by implication is generally disfavored, this route is incumbent upon us when . . . the two relevant statutes cannot stand together. See State v. Carbone, 172 Conn. 242, 256, 374 A.2d 215, cert. denied, 431 U.S. 967, 97 S. Ct. 2925, 53 L. Ed. 2d 1063 (1977).” Southern Connecticut Gas Co. v. Housing Authority, 191 Conn. 514, 521-22, 468 A.2d 574 (1983).

The state’s argument of nullification, because it serves as a reminder of the doctrine of repeal by implication, provides a sound basis for sustaining the defendant’s argument that his sentence needs further review. The legislature, cognizant of the constitutional guarantees of equal protection, must be deemed to have sought to attain a rational and sensible result that avoids placing a statute in constitutional jeopardy. Peck v. Jacquemin, 196 Conn. 53, 63-64, 491 A.2d 1043 (1985); Moscone v. Manson, 185 Conn. 124, 128, 440 A.2d 848 (1981). It is not rational and sensible to impose a lesser term of mandatory imprisonment on one convicted of kidnapping with the use of a firearm than on one convicted for a similar crime not involving a firearm. To avoid the constitutional quagmire that otherwise would confront us, we hold that the legislation codified as § 53a-92a (b) has created an irreconcilable conflict in the statutes governing mandatory minimum sentences for kidnapping in the first degree. Resolution of this irreconcilable conflict must be resolved in accordance with two governing principles: (1) a later statute repeals an earlier one, with which it cannot reasonably be reconciled, “to the extent of the repugnance”; Shippee v. Zoning Board of Appeals, 188 Conn. 555, 556-57, 451 A.2d 285 (1982); and (2) a criminal statute is construed strictly against the state and in favor of the accused. State v. Dupree, 196 Conn. 655, 660, 495 A.2d 691, cert. denied, 474 U.S. , 106 S. Ct. 318, 88 L. Ed. 2d 301 (1985). We therefore further hold that, until the legislature takes corrective action, the sentencing provision of § 53a-92a (b) governs all prosecutions for kidnapping in the first degree. Accordingly, the trial court was in error in refusing to exercise the discretion conferred upon it by § 53a-92a (b) to consider suspension of the defendant’s sentence of imprisonment after one year.

There is error, the judgment is set aside and the case is remanded for resentencing in accordance with this opinion.

In this opinion the other judges concurred.

       General Statutes § 53a-102 provides: “burglary in the second degree: class c felony, (a) A person is guilty of burglary in the second degree when he enters or remains unlawfully in a dwelling at night with intent to commit a crime therein.”

       General Statutes § 53a-92 (a) (2) (C) provides: “kidnapping in the first degree, (a) A person is guilty of kidnapping in the first degree when he abducts another person and when . . . (2) he restrains the person abducted with intent to . . . (C) terrorize him or a third person . . . .”

       The defendant and Gregory Howard were charged with commission of the same crimes, and were tried jointly. Like the defendant, Howard was convicted of the crimes charged, and sentenced to an effective term of imprisonment of ten years. Howard has not appealed the judgment against him.

       General Statutes § 53a-92 (b) provides: “kidnapping in the first degree. . . . (b) Kidnapping in the first degree is punishable as a class A felony.”

       General Statutes § 53a-35a (3) 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 ... (3) for a class A felony other than murder, a term not less than ten years nor more than twenty-five years } f

       General Statutes § 53a-28 provides: “Sec. 53a-28. authorized sentences. (a) Except as provided in chapter 368p, to the extent that such chapter is inconsistent herewith, every person convicted of an offense shall be sentenced in accordance with this title.
      “(b) Except as provided in sections 53a-45, 53a-46a, 53a-54b and 53a-92, when a person is convicted of an offense, the court shall impose one of the following sentences: (1) A term of imprisonment; or (2) a sentence authorized by sections 18-65a or 18-73; or (3) a fine; or (4) a term of imprisonment and a fine; or (5) a term of imprisonment, with the execution of such sentence of imprisonment suspended, entirely or after a period set by the court, and a period of probation or a period of conditional discharge; or (6) a term of imprisonment, with the execution of such sentence of imprisonment suspended, entirely or after a period set by the court, and a fine and a period of probation, or a period of conditional discharge; or (7) a fine and a sentence authorized by section 18-65 or 18-73; or (8) a sentence of unconditional discharge.
      “(c) A sentence to a period of probation or conditional discharge in accordance with sections 53a-29 to 53a-34, inclusive, shall be deemed a revocable disposition, in that such sentence shall be tentative to the extent that it may be altered or revoked in accordance with said sections but for all other purposes it shall be deemed to be a final judgment of conviction.”

       General Statutes § 53a-29 provides in relevant part: “Sec. 53a-29. probation AND CONDITIONAL DISCHARGE: CRITERIA; PERIODS, (a) The court may sentence a person to a period of probation upon conviction of any crime, other than a class A felony, if it is of the opinion that: (1) Present or extended institutional confinement of the defendant is not necessary for the protection of the public; (2) the defendant is in need of guidance, training or assistance which, in his case, can be effectively administered through probation supervision; and (3) such disposition is not inconsistent with the ends of justice.
      “(b) The court may impose a sentence of conditional discharge for an offense, other than a class A felony, if it is of the opinion that: (1) Present or extended institutional confinement of the defendant is not necessary for the protection of the public; and (2) probation supervision is not appropriate.”

       General Statutes § 53a-92a provides: “Sec. 53a-92a. kidnapping in the FIRST DEGREE WITH A FIREARM: CLASS A FELONY: ONE YEAR NOT SUSPEND-ABLE. (a) A person is guilty of kidnapping in the first degree with a firearm when he commits kidnapping in the first degree as provided in section 53a-92, and in the commission of said crime he uses or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a pistol, revolver, machine gun, shotgun, rifle or other firearm. No person shall be convicted of kidnapping in the first degree and kidnapping in the first degree with a firearm upon the same transaction but such person may be charged and prosecuted for both such offenses upon the same information.
      “(b) Kidnapping in the first degree with a firearm is a class A felony for which one year of the sentence imposed may not be suspended or reduced by the court.”

       The fourteenth amendment to the United States constitution provides in relevant part:
      “(CITIZENSHIP defined, privileges OF CITIZENS.)
      “Section 1. All persons bom or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
      Article first, § 20, of the Connecticut constitution provides:
      “(EQUAL PROTECTION. NO SEGREGATION OR DISCRIMINATION.)
      “Sec. 20. No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his civil or political rights because of religion, race, color, ancestry or national origin.”


author: Callahan, J.

text:
    State of Connecticut v. Jerry Lee Davis
    (11915)
    Healey, Shea, Dannehy, Santaniello and Callahan, Js.

      Argued December 6, 1985
    decision released February 25, 1986

      John F. Kavanewsky, Jr., for the appellant (defendant).

      Peter J. Ponziani, special assistant state’s attorney, with whom, on the brief, were Walter D. Flanagan, state’s attorney, and Raymond Doyle and Carl Schuman, assistant state’s attorneys, for the appellee (state).
   Callahan, J.

A jury found the defendant, Jerry Lee Davis, guilty of robbery in the first degree, a violation of General Statutes § 53a-134 (a) (3). He was sentenced to imprisonment for seven years. On appeal, he claims that the trial court erred in: (1) refusing to suppress an out-of-court photographic identification and a subsequent in-court identification, and (2) refusing to instruct the jury adequately on the subject of eyewitness identification. We find no error.

The jury could reasonably have found the following facts: At about 7 a.m. on March 25,1982, in Danbury, the victim, a thirteen year old girl, was accosted on her way to school by a black male holding a knife. He told her if she did not surrender her pocketbook, he was going to cut her throat. After taking the victim’s purse, the robber entered a small red car with green patches and was driven away by an unidentified operator. That afternoon, when the victim returned home, she told her mother about the incident and her mother called the police. Officer Thomas Mack of the Danbury police department talked with the victim and obtained a description of her assailant. Although the victim did not recall how long she had had the robber in.view, she was able to describe him in detail. She told the officer that he was wearing a green sweater and blue coveralls with suspenders and that he had a moustache and a growth of facial hair, but not a full beard.

We first address the defendant’s claim that the trial court erred in refusing to suppress the out-of-court photographic identification of the defendant and the subsequent in-court identification. “A defendant who moves to suppress identification evidence bears the initial burden of proving that the identification resulted from an unconstitutional procedure.” State v. Fullwood, 193 Conn. 238, 244, 476 A.2d 550 (1984). This court has repeatedly stated that “ ‘ “[i]n determining whether identification procedures violate a defendant’s due process rights, the required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on the ‘totality of the circumstances. ’ ” . . . ’ ” State v. Hinton, 196 Conn. 289, 292-93, 493 A.2d 837 (1985); State v. Austin, 195 Conn. 496, 499, 488 A.2d 1250 (1985); State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980).

The day after the robbery, Mack and another officer went to the victim’s home and displayed seven photographs to the victim in an effort to have her identify the assailant. The victim viewed the photographs and immediately picked out a photograph of the defendant as the person who had confronted her the morning before. At the time she viewed the photographs, she knew the police had a suspect in custody. The photographic array used by the Danbury police department contained black and white photographs of similar looking black males. All of the men pictured in the photographs had similar builds and some type of facial hair. Each photograph showed, on a placard, the date of the arrest of the individual depicted. The only recent arrest date on the photographs in the array was the date of March, 1982, which was on the photograph of the defendant. In the photograph, the defendant was depicted wearing the same clothes worn by the robber at the time of the crime, bibbed blue jeans with a shirt underneath.

We agree with the defendant that the similar clothing and the recent arrest date in the photograph and the fact that the victim knew a suspect was in custody made the photographic display unnecessarily suggestive; nevertheless, we find that the victim’s identification of the defendant was reliable based on the totality of the circumstances. “The constitutional test for reliability requires the trial court to consider ‘the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of [her] prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.’ Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977); State v. Theriault, supra, 373-74.” State v. Hinton, supra, 295-96.

At the time of the robbery, the victim viewed the defendant from a distance of about three and one-half feet. She also had the opportunity to view him as he ran to his car which was approximately 100 feet away. She described the robber “as being five foot ten, large frame, almost heavyset, having a wild-type hair, some facial hair, and was wearing blue jeans-type overalls, with a green shirt underneath the overalls,” an accurate and detailed description which fit the defendant. The identification procedure took place only thirty-two hours after the robbery. Mack testified that when the victim picked out the photograph of the defendant she stated that “she recognized him, and she felt certain that this was the individual, that the features matched the features that she knew existed.” There is no indication that the victim based her identification on the clothing worn by the defendant or on the dates in the photographs. The victim testified that “I saw the numbers, but I didn’t know what they meant. I really didn’t pay much attention to them. I was just looking at the faces.” We conclude that the out-of-court photographic identification procedure even though unnecessarily suggestive resulted in a reliable identification and did not violate the defendant’s right to due process. The trial court did not err in refusing to suppress the out-of-court identification.

Further, we do not find error in the refusal of the trial court to suppress the in-court identification of the defendant by the victim. This court will set aside a conviction based upon an in-court identification which follows an out-of-court identification only “ ‘if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.’ ” State v. Fullwood, 193 Conn. 238, 243-44, 476 A.2d 550 (1984), quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968); State v. Parker, 197 Conn. 595, 598, 500 A.2d 551 (1985); State v. Vass, 191 Conn. 604, 609, 469 A.2d 767 (1983); State v. Doolittle, 189 Conn. 183, 190, 455 A.2d 843 (1983). In the present case, the photographic identification procedure resulted in a reliable identification and did not give rise to a substantial likelihood of irreparable misidentification. The trial court acted properly in refusing to suppress the victim’s in-court identification.

The defendant’s second claim on appeal is that the trial court erred in its instructions to the jury on eyewitness identification by refusing to include in its charge a Telfaire instruction on identification, an instruction which was requested by the defendant. The Telfaire instruction tells the jury to consider in appraising the identification testimony of a witness the adequacy of his opportunity and his capacity to observe the offender; the length of time available for the witness to observe the offender; the proximity of the witness to the offender; whether the witness had seen or known this person in the past; whether the identification was a product of the witness’ own recollection; and the credibility of the witness. United States v. Telfaire, 469 F.2d 552 (D.C. Cir. 1972).

“Although we have indicated that a court should grant a request for a charge regarding the dangers of misidentification in an appropriate case, we have not found reversible error in the failure to do so where ‘the conviction of the defendant did not turn upon the testimony of eyewitnesses who were uncertain, unclear, or inconsistent.’ State v. Harden, 175 Conn. 315, 322, 398 A.2d 1169 (1978); see State v. Maturo, 188 Conn. 591, 600, 452 A.2d 642 (1982); State v. Tinsley, 181 Conn. 388, 393-94, 435 A.2d 1002 (1980), cert. denied, 449 U.S. 1086, 101 S. Ct. 874, 66 L. Ed 2d 811 (1981).” State v. George, 194 Conn. 361, 375, 481 A.2d 1068 (1984).

In the present case, the testimony of the victim was not uncertain, unclear or inconsistent. She was able to give an accurate and detailed description of the defendant and she did not hesitate in choosing, from among the array of photographs, the photograph of the defendant as her assailant. She also identified him with certainty in the courtroom.

Additionally, this court has specifically dealt with a trial court’s denial of a requested Telf aire instruction in State v. McKnight, 191 Conn. 564, 469 A.2d 397 (1983). In McKnight, we held that the trial court did not err in refusing to give the requested Telfaire instruction because the “salient principles of the court’s charge adequately covered the dangers of misidentification.” Id., 583. “ ‘ “A charge to the jury will not be critically dissected for the purpose of discovering possible inaccuracies of statements, but the charge is to be considered, rather, as to its probable effect upon the jury in guiding them to a correct verdict in the case.” ’ State v. Miller, 186 Conn. 654, 661, 443 A.2d 906 (1982).” State v. McKnight, supra, 582. “ ‘The ultimate test of a court’s instructions is whether, taken as a whole, they fairly and adequately present the case to a jury in such a way that injustice is not done to either party under the established rules of law.’ State v. Harden, 175 Conn. 315, 322, 398 A.2d 1169 (1978).” State v. McKnight, supra, 583.

In the present case, the trial court’s charge to the jury included the following references to the identification issue: “one of the main points of contention is the identification of the Defendant”; “[y]ou should also consider the opportunity of a witness for observation, the impressions such witness made upon you for his or her power of observation, the reasonableness of the story told and, then, consider what are the fair and reasonable conclusions or inferences that you can draw”; and “it is incumbent upon the State to prove beyond a reasonable doubt that Mr. Davis was the individual involved in the incident complaint by [the victim].” The trial court also instructed the jury on the credibility of the witnesses. We find that, in viewing the charge as a whole, the trial court fairly and adequately addressed the dangers of misidentification.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-134 (a) (3) provides: “Sec. 53a-134. robbery in the first degree: class B felony, (a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime . . . (3) uses or threatens the use of a dangerous instrument . . . .”


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    Michael T. Daly v. John M. Bailey
    Decided November 21, 1985

      Michael T. Daly, in support of the petition.
   The plaintiff’s petition for certification for appeal from the Appellate Court is denied.


text:
    Chester A. Kuras et al. v. Town of Suffield
    Decided November 21, 1985

      Ronald T. Murphy, in support of the petition.
   The plaintiff’s petition for certification for appeal from the Appellate Court is denied.


text:
    Teresa D. DeTeves v. Dinis C. DeTeves
    Decided December 3, 1985

      Nancy O. Dodge, in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court is granted.


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    Joseph Zaleski v. Albert D. Lizzi et al.
    Decided December 3, 1985

      Mark S. Rosenblit, in support of the petition.

      James J. Scalise, in opposition.
   The plaintiff’s petition for certification for appeal from the Appellate Court, 5 Conn. App. 426, is dismissed.


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    Thomas P. Finley v. Aetna Life and Casualty Company
    Decided December 6, 1985

      Albert Zaka/rian and Felix J. Springer, in support . of the petition.

      Robert W. Heagney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 5 Conn. App. 394, is granted.


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    Edward L. Hall v. Planning and Zoning Commission of the Town of Rocky Hill et al.
    Decided January 3, 1986

      Joel M. Ellis, in support of the petition.

      Clifford J. Grandjean, in opposition.
   The plaintiff’s petition for certification for appeal from the Appellate Court is granted.


text:
    Second Exeter Corporation v. Harold Epstein et al.
    Decided January 3, 1986

      Karen A. Birck, in support of the petition.

      Melvin A. Simon, in opposition.
   The plaintiff’s petition for certification for appeal from the Appellate Court, 5 Conn. App. 427, is denied.


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    Michele Sinisi et al. v. Salvatore Gangi et al.
    Decided January 3, 1986

      Robert G. Zanesky, in support of the petition.

      Thomas J. Heagney, in opposition.
   The defendants’ petition for certification for appeal from the Appellate Court is denied.


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    Anna M. Sanchez v. Forty’s Texaco Service, Inc.
    Decided January 7, 1986

      Anna M. Sanchez, pro se, in support of the petition.
   The plaintiff’s petition for certification for appeal from the Appellate Court, 5 Conn. App. 438, is denied.


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    Souper Spud, Inc. v. Aetna Casualty and Surety Company
    Decided January 9, 1986

      Joel Z. Green, in support of the petition.

      Arnold J. Bai, with whom, on the brief, was Garie J. Mulcahey, in opposition.
   The plaintiff’s petition for certification for appeal from the Appellate Court, 5 Conn. App. 579, is denied.


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    Gregory Pulaski v. Charles J. Ledwith
    Decided January 16, 1986

      Dennis F. Gaffney, in support of the petition.

      James M. S. Ullman, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 5 Conn. App. 629, is denied.


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    State of Connecticut v. Connie J. Alston
    Decided January 16, 1986

      Eugene J. Riccio, public defender, in support of the petition.

      Donald A. Browne, state’s attorney, with whom, on the brief, was Frederick W. Fawcett, assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 5 Conn. App. 571, is denied.


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    Lawrence Carfora v. Globe, Inc., et al.
    Decided January 24, 1986

      William F. Gallagher and Robert J. Gillooly, in support of the petition.

      Charles A. Sherwood and Joseph R. Mirrione, in opposition.
   The defendants’ petition for certification for appeal from the Appellate Court, 5 Conn. App. 526, is denied.


text:
    Joseph N. Thomas v. Carpenter Technology Corporation
    Decided January 24, 1986

      William C. Brown and Thomas H. Winslow, in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court is denied.


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    Virginia M. Patrick v. J. William Burns, Commissioner of Transportation
    Decided January 30, 1986

      John W. Sitarz, in support of the petition.

      Jerome Sanchy, in opposition.
   The named defendant’s petition for certification for appeal from the Appellate Court, 5 Conn. App. 663, is denied.


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    Howard W. Rategan v. Virginia M. Patrick et al.
    Decided January 30, 1986

      John W. Sitarz, in support of the petition.

      John Bagdasarian, in opposition.
   The petition by the defendant J. William Burns for certification for appeal from the Appellate Court, 5 Conn. App. 663, is denied.


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    Jeanne M. Delehanty et al., Administratrices (Estate of Kathleen Anderson) v. Virginia M. Patrick et al.
    Decided January 30, 1986

      John W. Sitarz, in support of the petition.

      Kate W. Haakonsen, in opposition.
   The petition by the defendant J. William Burns for certification for appeal from the Appellate Court, 5 Conn. App. 663, is denied.


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    City of Hartford v. Stanley V. Tucker et al.
    Decided January 30, 1986

      Stanley V. Tucker, pro se, in support of the petition.

      Michael G. Durham, James F. Kane and Frederick D. Augenstern, in opposition.
   The named defendant’s petition for certification for appeal from the Appellate Court, 5 Conn. App. 633, is denied.


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    Leonard J. Roy, Administrator (Estate of Denise Roy) v. James J. Michaud et al.
    Decided January 30, 1986

      Herbert Watstein, in support of the petition.

      Philip J. O’Connor, in opposition.
   The plaintiff’s petition for certification for appeal from the Appellate Court, 5 Conn. App. 695, is denied.


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    State of Connecticut v. Keith Beccia
    (12550)
    Peters, C. J., Healey, Shea, Dannehy and Callahan, Js.
    Argued January 8
    decision released March 4, 1986

      Louis S. Avitabile, with whom, on the brief, was James P. Caulfield, for the appellant (defendant).

      James K. Robertson, Jr., special assistant state’s attorney, with whom, on the brief, was John Connelly, state’s attorney, for the appellee (state).
   Callahan, J.

The defendant, Keith Beccia, was charged in a substitute information with arson in the first degree in violation of General Statutes (Rev. to 1981) § 53a-lll (a) (2) and conspiracy to commit arson in the first degree in violation of General Statutes §§ 53a-48 and 53a-lll (a) (2). The charges stemmed from a fire which destroyed the Night Owl Cafe Club in Wolcott on March 7, 1982. The defendant was an owner of the business and a lessee of the building.

After a trial to the court, the defendant was found not guilty of arson in the first degree, but guilty of conspiracy to commit arson in the third degree in violation of General Statutes §§ 53a-48 and 53a-113, as a lesser included offense of conspiracy to commit arson in the first degree. The defendant filed timely motions in arrest of judgment; Practice Book § 905; and for acquittal; Practice Book § 899; which the trial court denied. Both motions allege that conspiracy to commit arson in the third degree is not a cognizable crime under the laws of the state of Connecticut. We agree.

“ 'To establish the crime of conspiracy under § 53a-48 of the General Statutes, it must be shown that an agreement was made between two or more persons "to engage in conduct constituting a crime and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators. The state must also show intent on the part of the accused that conduct constituting a crime be performed.” State v. Ortiz, 169 Conn. 642, 645, 363 A.2d 1091 [1975].’ State v. Marra, 174 Conn. 338, 344, 387 A.2d 550 (1978).” State v. Johns, 184 Conn. 369, 378, 439 A.2d 1049 (1981). "The gravamen of the crime of conspiracy is the unlawful combination and an act done in pursuance thereof, not the accomplishment of the objective of the conspiracy.” State v. Stevens, 178 Conn. 649, 655, 425 A.2d 104 (1979). “Conspiracy is an inchoate offense the essence of which is an agreement to commit an unlawful act. Iannelli v. United States, 420 U.S. 770, 95 S. Ct. 1284, 43 L. Ed. 2d 616 (1975); United States v. Alvarez, 610 F.2d 1250 (5th Cir. 1980); United States v. Cuesta, 597 F.2d 903 (5th Cir. 1979). The prohibition of conspiracy is directed not at the unlawful object, but at the process of agreeing to pursue that object.” United States v. Simms, 508 F. Sup. 1188, 1196 (W.D. La. 1980). Conspiracy is an anticipatorial offense distinguished by a corrupt agreement by two or more persons to commit a specific objective crime. People v. Csabon, 79 App. Div. 2d 609, 610, 433 N.Y.S.2d 487 (1980).

"Conspiracy is a specific intent crime, with the intent divided into two elements: ‘(a) the intent to agree or conspire and (b) the intent to commit the offense which is the object of the conspiracy. ... To sustain a conviction for conspiracy to commit a particular offense, the prosecution must show not only that the conspirators intended to agree but also that they intended to commit the elements of the offense. ’ [People v. Horn, 12 Cal. 3d 290, 296, 524 P.2d 1300, 115 Cal. Rptr. 516 (1974)].” (Emphasis added.) California v. Backus, 23 Cal. 3d 360, 390, 590 P.2d 837, 152 Cal. Rptr. 710 (1979); see also State v. DeMatteo, 186 Conn. 696, 707, 443 A.2d 915 (1982).

The essential elements of the crime of arson in the third degree are the intentional starting of a fire or causing of an explosion thereby recklessly causing damage or destruction to a building. See General Statutes § 53a-113. Unless there is actual damage or destruction resulting from reckless conduct, there is no violation of the statute. Reckless conduct is not intentional conduct because one who acts recklessly does not have a conscious objective to cause a particular result. While conspirators can agree to start a fire intentionally or to cause an explosion or even agree to act recklessly, they cannot agree to accomplish a required specific result unintentionally.

“[PJroof of a conspiracy to commit a specific offense requires proof that the conspirators intended to bring about the elements of the conspired offense.” (Emphasis added.) People v. Horn, supra, 295. Since conspirators cannot agree to accomplish a result recklessly when that result is an essential element of the crime, they cannot conspire to commit this particular crime. Just as one cannot attempt to commit an unintentional crime; State v. Almeda, 189 Conn. 303, 309, 455 A.2d 1326 (1983); one cannot agree anticipatorily to accomplish an unintended result. “There is just no such crime as would require proof that one intended a result that accidentally occurred.” Hull v. State, 553 S.W.2d 90, 94 (Tenn. 1977). “It follows, therefore, that there is no such thing as a conspiracy to commit a crime which is defined in terms of recklessly or negligently causing a result.” LaFave & Scott, Criminal Law (1972) p. 466. Accordingly, we hold that conspiracy to commit arson in the third degree in violation of General Statutes §§ 53a-48 and 53a-113 is not a crime cognizable under our law.

There is error, the judgment is set aside and the case is remanded to the trial court with instructions to vacate the judgment and grant the defendant’s motion in arrest of judgment.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1981) § 53a-lll (a) (2) provides: “Sec. 53a-lll. arson in the first degree: class a felony, (a) A person is guilty of arson in the first degree when, with intent to destroy or damage a building, as defined in section 53a-100, he starts a fire or causes an explosion, and ... (2) any other person is injured, either directly or indirectly.”

       “[General Statutes] Sec. 53a-48. conspiracy, renunciation, (a) A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.
      “(b) It shall be a defense to a charge of conspiracy that the actor, after conspiring to commit a crime, thwarted the success of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.”

       “[General Statutes] Sec. 53a-113. arson in the third degree: class c felony, (a) A person is guilty of arson in the third degree if he recklessly causes destruction or damage to a building, as defined in section 53a-100, of his own or of another by intentionally starting a fire or causing an explosion.
      “(b) Arson in the third degree is a class C felony.”

       General Statutes § 53a-3 (13) provides: “Sec. 53a-3. definitions. Except where different meanings are expressly specified, the following terms have the following meanings used in this title . . .
      “(13) A person acts ‘recklessly’ with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.”

       General Statutes § 53a-3 (11) provides: “Sec. 53a-3. definitions. Except where different meanings are expressly specified, the following terms have the following meanings when used in this title . . .
      “(11) A person acts ‘intentionally’ with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct.”