author: Callahan, J.

text:
    State of Connecticut v. Bruce Conrod State of Connecticut v. Bruce Guilmette
    (10879)
    (10880)
    Peters, C. J., Healey, Dannehy, Santaniello and Callahan, Js.
    Argued November 7, 1985
    decision released February 11, 1986

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

      MichaelE. O’Hare, deputy assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, CarlSchuman, assistant state’s attorney, and Edward F. Spinella and Donald O’Brien, former assistant state’s attorneys, for the appellee (state).
   Callahan, J.

The defendant was convicted of two counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3). On April 20, 1981, he was sentenced to consecutive terms of four to eight years on each count, for a total effective sentence of eight to sixteen years imprisonment. The defendant appeals, asserting that the trial court erred in refusing to allow him to testify on redirect examination that he had reviewed and ratified notes made by his attorney. We find no error.

From the evidence adduced at trial the jury could reasonably have found the following facts: On August 7, 1979, the defendant was arrested for two robberies. The first robbery was committed on June 9, 1979, at approximately 2 p.m., after the defendant entered Irene’s Yarn Shop which is located at 560 North Main Street, Bristol. At the time, Irene Derosier, the proprietor, was alone in her store. After the defendant had been in the store for a short period of time, he produced a knife and asked Derosier for her money. She gave him about fifty dollars in cash and he fled. At the time of the robbery, the shop was well lit and the defendant was only a few feet from Derosier. On August 4, 1979, Derosier examined a series of photographs shown to her by the Bristol police and identified the defendant as the man who had robbed her. During the trial, she made an in-court identification of the defendant as the robber.

On June 13, 1979, at approximately 1:15 p.m., the defendant entered the Dairy Farm Store located at 104 Wolcott Street, Bristol. Barbara Huntley was the manager of the store and was working there alone although there were two children in the store when the defendant entered. After the children had left, Huntley asked the defendant if she could help him. The defendant pointed a knife at her and told her to give him the store’s money. Huntley opened the cash register and gave him all the five and ten dollar bills that were in the drawer, which amounted to approximately sixty dollars. He then demanded that she give him the twenty dollar bills that were under the tray in the drawer. Huntley said that there were no twenty dollar bills in the drawer and she picked up the tray and threw it at the defendant. The defendant fled and Huntley chased him across the street, but then gave up the chase. Huntley had seen the defendant for the first time the day before the robbery when he entered the store and made a purchase. During the robbery, she had a clear view of the defendant’s face. Huntley examined a series of photographs shown to her by the Bristol police and identified the defendant as the man who had robbed her. She also made an in-court identification of the the defendant during the trial.

The defendant presented an alibi defense. He testified on direct examination that on June 8, 1979, he returned to Bristol, having just been discharged from the army, and that on June 9,1979, at the time of the yarn shop robbery he was at his mother’s home with his mother and sister. He further testified that he had slept until about 2 p.m. on June 13, 1979, the day of the Dairy Farm Store robbery.

On cross-examination, the state’s attorney questioned the defendant extensively about his actions on June 9, 1979. He was able to recall the events of that day in great detail. The state’s, attorney then asked the defendant for details of his activities for days selected at random. The defendant repeatedly objected to this line of questioning but his objections were overruled. The defendant was finable to recall his activities on those days. On redirect examination the defendant explained that he was able to recall the events of June 9, 1979, because it was his first day home after his having been discharged. He was unable to explain why he remembered the events of June 13, 1979.

On recross-examination the state’s attorney asked the defendant if he had ever written down the details of his activities on the dates of the robberies. The defendant responded that he had not. Subsequently, defense counsel, on redirect examination, asked the defendant, “When you talked to the lawyers who represented you, including myself, did we write down things while we were talking with you?” The defendant replied in the affirmative. The state’s attorney then made an objection which the trial court apparently sustained. The defendant now argues that the sustaining of this objection constituted reversible error.

The defendant argues that the trial court erred in refusing to allow the defendant to testify, on redirect examination, that his attorney had made interview notes in the defendant’s presence, which the defendant had reviewed and ratified. This court has made it clear that a witness is permitted on redirect examination to explain or clarify any relevant matters in his testimony which may have been weakened or obscured by his cross-examination. State v. Graham, 186 Conn. 437, 448, 441 A.2d 857 (1982). The extent and scope of redirect examination, however, may be limited within the discretion of the trial judge. State v. Reed, 174 Conn. 287, 301, 386 A.2d 243 (1978).

In order to determine if the trial court properly sustained the state’s objection during defense counsel’s redirect examination of the defendant, it is necessary to examine the record. During the redirect, immediately preceding the state’s objection, defense counsel had asked the defendant, “When you talked to the lawyers who represented you, including myself, did we write down things while we were talking with you?” The defendant responded in the affirmative. The state’s attorney then objected. The record discloses that this objection was made while there was no question pending. It is therefore difficult to determine what the trial court sustained an objection to. The previous question had been asked and answered at the time of the state’s objection and no request had been made to strike the answer. No other question was asked to which objection was taken. After the state objected, the trial judge, without making a ruling, excused the jury. In their absence, there was a colloquy between defense counsel, the state’s attorney, and the court in which the court said that “the witness can testify as to notations he made, but not as to notations that [his attorney] made.” Defense counsel argued hypothetically that if he showed the defendant his notes and went over the notes with him, the defendant should be allowed to testify to that. He did not ask the defendant whether he had, in fact, reviewed any notes of counsel. Obviously, the defendant could not testify as to notes taken by defense counsel unless, at a minimum, there was testimony that he had seen those notes. At no time did defense counsel make an offer of proof as to what had actually occurred. At the end of the colloquy, the trial court sustained the state’s objection. It is impossible to ascertain from the record whether the line of questioning which defense counsel apparently wished to pursue was admissible. “The short answer to this claim is that no offer of proof appears in the record as to the . . . content of the testimony the [defendant] sought to introduce. ‘Without knowing the answer that might be forthcoming we are unable to rule on this assignment of error.’ ” Jacobsen v. Jacobsen, 177 Conn. 259, 267, 413 A.2d 854 (1979), quoting Johnson v. Newell, 160 Conn. 269, 277, 278 A.2d 776 (1971).

“It is the appellant’s burden to ensure that we are provided with an adequate appellate record to support his claim of error.” Barra v. Ridgefield Card & Gift Gallery, Ltd., 194 Conn. 400, 407, 480 A.2d 552 (1984). The defendant in the present case has not met this burden. Under the circumstances outlined above, if he wished to preserve this claim of error for appellate review, he should have presented an offer of proof. “An offer of proof, properly presented, serves three purposes. First, it should inform the court of the legal theory under which the offered evidence is admissible. Second, it should inform the trial judge of the specific nature of the offered evidence so the court can judge its admissibility. Third, it thereby creates a record adequate for appellate review.” Mad River Orchard, Inc. v. Krack Corporation, 89 Wash. 2d 535, 537, 573 P.2d 796 (1978).

“The significant gap in the record . . . limits our review and presents obstacles to reviewing the defendant’s claim of error on this appeal.” Barra v. Ridgefield Card & Gift Gallery, Ltd., supra. In the absence of a proper offer of proof, this court cannot speculate as to what actually took place at the conference between the defendant and defense counsel or what line of questioning defense counsel intended to follow. We will not base a claim of error on an assumption that the trial court acted incorrectly. Id., 407-408; Giamattei v. DiCerbo, 135 Conn. 159, 162, 62 A.2d 519 (1948). Without an adequate record to review the ruling of the trial court, this court must assume that the trial court acted properly. Barra v. Ridgefield Card & Gift Gallery, Ltd., supra; Jacobsen v. Jacobsen, supra, 263; Giamattei v. DiCerbo, supra.

There is no error.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 53a-134. bobbery 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: (1) Causes serious physical injury to any person who is not a participant in the crime; or (2) is armed with a deadly weapon; or (3) uses or threatens the use of a dangerous instrument . . . .”


source: Caselaw Access Project

author: Peters, C. J. Shea, J.,

license: Public Domain

text:
    State of Connecticut v. Robert Watson
    (11330)
    Peters, C. J., Healey, Shea, Dannehy and Callahan, Js.

      Argued December 3, 1985
    decision released February 11, 1986

      Louis S. Avitabile, special public defender, for the appellant (defendant).

      Patricia A. King, deputy assistant state’s attorney, with whom was John A. Connelly, state’s attorney, for the appellee (state).
   Peters, C. J.

The principal issue in this appeal is a determination of the circumstances under which a court must initiate an evidentiary inquiry into a defendant’s competency before accepting his guilty plea or denying a motion to withdraw such a plea. The defendant, Robert Watson, a/k/a Ollie Ricketts, Jr., was charged, in a two count substitute information, with the crimes of unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a) and sexual assault in the first degree in violation of General Statutes § 53a-70 (a). The trial court, after a canvass, accepted the defendant’s plea of guilty to each count. On the date set for sentencing, the defendant moved to withdraw his pleas of guilty. The court denied the motion and imposed a total effective sentence of not less than eight nor more than sixteen years.

The defendant, in his appeal to this court, raises four issues. The defendant claims that the trial court erred: (1) in finding that the defendant’s pleas of guilty were voluntary without sufficiently inquiring into the defendant’s mental capacity to enter into a plea; (2) in denying the defendant effective assistance of counsel on his motions to withdraw his guilty pleas by failing to allow the defendant to obtain substitute counsel; (3) in denying the defendant’s motion that his request to withdraw his guilty pleas be heard by another judge; and (4) in denying the defendant’s motions to withdraw his pleas for lack of mental capacity without an evidentiary hearing. We find no error.

I

The pleas of guilty whose validity the defendant now challenges arose under the following circumstances. The defendant had originally been charged not only with sexual assault but also with kidnapping in the first degree. Motions relating to these charges were heard beginning November 20,1981, and jury selection was begun on November 25, 1981. On December 9, 1981, in the midst of the jury selection process, the defendant informed the court that he wished to plead guilty to a substitute information in accordance with a plea bargain. The state filed a substitute information reducing the charge of kidnapping, a class A felony, to one of unlawful restraint, a class D felony. The state also agreed to enter a nolle prosequi with respect to other pending charges against the defendant upon imposition of a recommended sentence to imprisonment for an effective term of not less than eight nor more than sixteen years.

At the hearing at which the defendant entered his guilty pleas pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), the state offered the following factual basis for the pleas. At about 12:30 a.m. on February 21, 1981, the victim was accosted by two black men as she was using a public telephone. The men forced her into their car and drove her to a wooded area where each of them sexually assaulted her. The victim escaped from the car and found a state trooper to assist her. The state trooper immediately reported the incident to the Waterbury police, including in his report the victim’s description of the men, their car and the car’s license number. Approximately twenty minutes later, the defendant and a male companion were stopped in Woodbridge not far from the scene of the assault. The car they were driving matched the victim’s description. Medical evidence obtained at a hospital examination of the victim corroborated a sexual assault. The victim identified the defendant, in a photo array, as one of the men who had assaulted her. She also identified the car which the defendant had been driving when he was stopped as the car in which she had been sexually assaulted.

The court conducted the canvass required by Practice Book §§ 711 through 713 to determine whether the defendant’s pleas were knowing, voluntary and intelligent. After it had made an inquiry into the defendant’s educational history, the court asked the defendant about his medical history. In response to the court’s questions, the defendant indicated that he was not presently under medication, that he had been treated for psychosis for the past eight months, that he had recently been taking one hundred fifty milligrams of Elavil and seventy-five grams of Mellaril, and that the last time he had received medication by prescription was two days earlier when he had taken fifty milligrams of Elavil. The defendant informed the court that his medication had been prescribed for him by an unidentified psychiatrist at the “state jail.” The court thereupon asked the defendant whether he felt that the medication in any way impaired his present ability to reason, to understand the proceeding against him, or to make decisions on the matters before the court. The defendant replied, “No.” The court further asked the defendant whether he felt he was able to think clearly, to weigh the various alternatives before him, and to make a responsible judgment on his own behalf. The defendant several times indicated that he had no doubt about his ability to participate fully in the plea.

The court thereafter turned its attention to other aspects of the plea canvass. The defendant was represented throughout the trial and the plea canvass by a private attorney of his choice. The defendant affirmed that he had had a full opportunity to discuss his case with his attorney and that he was satisfied with the advice he had received. Although the defendant then manifested some emotional upset, he regained his composure after a minute or two. Toward the end of the canvass, having been advised by the court of the constitutional rights he was waiving, and that a guilty plea could not be withdrawn at the time of sentencing, the defendant asked to speak to his attorney. His attorney informed the court that the defendant had inquired whether his pleas of guilty would preclude his pursuit of a claimed constitutional infirmity in the grand jury proceedings and the search warrant in his case. Upon receipt of advice on that point, the defendant reiterated his wish to plead guilty to the charges. The court then made a finding that the defendant, with the effective assistance of counsel, had pled guilty knowingly, voluntarily and intelligently.

The defendant now challenges the trial court’s determination of voluntariness and intelligence on the ground that the court failed to make a sufficient inquiry into the defendant’s mental capacity at the time of the entry of the pleas. Relying on the undisputed principle that a guilty plea violates constitutional requirements of due process if, because of incompetence, the plea is involuntary or unknowing; Drope v. Missouri, 420 U.S. 162, 171-75, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975); State v. Torres, 182 Conn. 176, 184-86, 438 A.2d 46 (1980); the defendant argues that the circumstances at the plea hearing raised an unresolved doubt about the defendant’s competence to plead guilty. Once such a doubt has been raised, the defendant maintains that a court becomes constitutionally obligated to determine whether a defendant is capable of making the reasoned choice essential to the validity of the guilty pleas. In making such a determination, the court is not entitled, according to the defendant, to rely on such factors as the defendant’s subjective statement that his reasoning powers are unaffected by his psychiatric history, the court’s own observations of the defendant’s expressions, conduct and statements during the trial, or defense counsel’s acquiescence in the proceedings, but must, sua sponte, order an evidentiary hearing into the defendant’s medical condition. Under the circumstances revealed by the record in this case, we disagree.

In Myers v. Manson, 192 Conn. 383, 389-91, 472 A.2d 759 (1984), this court recently reviewed the standard for competence to plead guilty that has been established by our statute; General Statutes § 54-56d (a); and by the applicable constitutional case law. Dusky v. United States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960). Because every valid guilty plea must be demonstrably voluntary, knowing and intelligent, we require the record to disclose an act that represents a knowing choice among available alternative courses of action, an understanding of the law in relation to the facts, and sufficient awareness of the relevant circumstances and likely consequences of the plea. McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969); Myers v. Manson, supra, 389-90; State v. Deboben, 187 Conn. 469, 476, 446 A.2d 828 (1982); State v. Torres, supra, 184-85; Buckley v. Warden, 177 Conn. 538, 542, 418 A.2d 913 (1979); State v. Battle, 170 Conn. 469, 474-75, 365 A.2d 1100 (1976); Consiglio v. Warden, 160 Conn. 151, 166, 276 A.2d 773 (1970). A trial court’s scrutiny of the voluntariness and the intelligence of a plea pursuant to Practice Book §§ 711 through 713 and Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), therefore necessarily implies that it has made an inquiry into the defendant’s competence to plead. Myers v. Manson, supra, 390-91.

The question in this case is whether Pate v. Robinson, 383 U.S. 375, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966), required the court to make a further inquiry into competence once the defendant informed the court that he had been under psychiatric care for the previous eight months and had, as recently as forty-eight hours earlier, been taking prescription medicine relating thereto. As the state acknowledges, the rule of Pate v. Robinson imposes a constitutional obligation, under the due process clause, to undertake an independent judicial inquiry, in appropriate circumstances, into a defendant’s competency to stand trial or to plead guilty. Id., 385. When a Pate inquiry is required, a court may not rely on the defendant’s subjective appraisal of his own capacity or on the court’s personal observations of the defendant but must hold an evidentiary hearing into the defendant’s competence. Id., 385-86. The crucial issue, therefore, is what triggers a defendant’s right to an evidentiary hearing.

A defendant who challenges the validity of his guilty plea for lack of an evidentiary inquiry into his competence must make a showing that, at the time of his plea, the court had before it specific factual allegations that, if true, would constitute substantial evidence of mental impairment. Sanders v. United States, 373 U.S. 1, 21, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963). “ ‘Substantial evidence’ is a term of art. ‘Evidence’ encompasses all information properly before the court, whether it is in the form of testimony or exhibits formally admitted or it is in the form of medical reports or other kinds of reports that have been filed with the court. Evidence is ‘substantial’ if it raises a reasonable doubt about the defendant’s competency . . . .” Moore v. United States, 464 F.2d 663, 666 (9th Cir. 1972).

In this case, the only evidence pointing to possible lack of competence was the defendant’s brief and unsubstantiated reference to a history of psychiatric treatment and medication. The history given by the defendant indicated that, at the time of the pleas, he had taken no medication for the past forty-eight hours. Although he told the court what drug he had been taking, and what the prescribed dosage had been, he did not reveal the name of his psychiatrist and he offered no medical report concerning the nature of the mental condition for which he had received treatment. The disclosure of the defendant’s psychiatric history came to light as the result of the court’s own routine canvass. Neither the crimes of which the defendant stood accused nor his conduct during the trial or the canvass indicated inappropriate affect or irrational behavior. His counsel had never requested a competency hearing, nor had he filed a notice of defense putting the defendant’s mental state into issue. See General Statutes §§ 54-56d, 53a-13; Practice Book §§ 758, 759. On this record, the defendant did not present such substantial evidence about possible lack of competence as to require the court sua sponte to undertake a specific evidentiary inquiry into his ability to understand the proceedings against him or to assist in his own defense.

As in Myers v. Manson, supra, the record of the canvass undertaken by the court supports its implicit finding that the defendant was competent to plead guilty. The defendant responded appropriately to the court’s questions testing his understanding of the plea agreement, the factual basis for the pleas, the meaning of the Alford plea, the constitutional rights which he was waiving, and the adequacy of the advice of counsel which he had received. Significantly, the defendant himself interrupted the canvass to receive clarification from his counsel about the effect that his guilty plea would have on alleged constitutional defects in the underlying criminal proceedings against him. When the defendant, toward the end of the canvass, exhibited a brief emotional upset, the court immediately took notice and afforded him an opportunity to calm himself. Once the defendant had regained his composure, the court took pains to make sure that the defendant had been attentive to the questions previously put to him and had no further questions to ask. Only thereafter did the court resume its own inquiry, reiterating its earlier questions concerning the defendant’s satisfaction with the advice he had received from his attorney. The canvass, on its face, is entirely consistent with an implicit finding of competency at the time the pleas of guilty were accepted by the court.

II

The defendant’s remaining claims of error challenge not the original plea canvass but the trial court’s refusal to permit the defendant to withdraw his guilty pleas before sentencing. The defendant acknowledges that he did not have an absolute right to withdraw his pleas of guilty; see Practice Book § 720; but claims that the court nonetheless erred in this case because: (1) it refused to permit the defendant to obtain substitute counsel for the withdrawal hearing; (2) it did not recuse itself so that the withdrawal motions could be heard before a different judge of the Superior Court; and (3) it failed to hold an evidentiary hearing about the defendant’s mental capacity at the time of the pleas. We disagree with the defendant’s claims.

In the trial court, the defendant’s timely motions to withdraw his guilty pleas relied upon his allegation that the pleas had been involuntary. See Practice Book § 721 (2). To prove that the pleas had been involuntary, he alleged in his pro se motions that his pleas resulted from judicial and prosecutorial coercion and bias, from impairment of his judgment due to the influence of “a psychosis drug” at the time of the plea, and from ineffective assistance of counsel. As a consequence of the filing of these motions on January 6, 9, and 11, 1982, defense counsel sought permission on January 15, 1982, to withdraw as attorney for the defendant. The record discloses no effort by the defendant to enlist the services of new counsel.

On January 22,1982, the date for sentencing, when the motions for withdrawal of the guilty pleas were heard, defense counsel renewed his request to withdraw. The court denied the request, finding that the defendant’s motions contained only conclusory allegations that did not constitute “good cause” as required by Practice Book § 632. The court, however, permitted the defendant to file a supplementary pro se appearance, and indicated that the defendant could either be represented by privately retained counsel, if one could appear for the defendant after a brief recess, or could proceed pro se. Although the defendant expressed his preference for a private consultation, and although more than two weeks had elapsed since he had filed his withdrawal motions, he acknowledged that he did not then have a specific attorney available. The defendant then asked to consult with a special public defender who was representing him on another case which was to be nolled as part of the plea bargain. When the court noted that the special public defender had not filed an appearance in the case scheduled for sentencing, the defendant agreed to consult with his original defense counsel.

Thereafter the trial court proceeded to hold a hearing on the motions for withdrawal of the guilty pleas, permitting the defendant either to have his original counsel address the court or to present his argument pro se. The defendant elected to go forward pro se. In support of the motions, the defendant reiterated that he had been unfairly pressured into plea bargaining against his better judgment, that he had been “coerced psychologically and manipulated in the courtroom,” that he had been ineffectively represented by his counsel, and that he had been and continued to be “under . . . psychosis medication.” After a contrary argument on behalf of the state, and brief rebuttal by the defendant, the court denied the defendant’s motions. Having earlier observed that defense counsel had diligently and competently represented the defendant throughout the presentencing proceedings, the court ruled that the defendant had failed to establish any of the grounds for withdrawal of an accepted guilty plea set out in Practice Book § 721.

The defendant on this appeal does not directly contest the trial court’s conclusion that he had failed to show good cause for the disqualification of his counsel. Any claim of ineffective assistance of counsel has been put to rest in habeas corpus proceedings that were concluded while this appeal was pending. Watson v. Manson, Superior Court, judicial district of Hartford-New Britain, Docket No. 269105 (1982). His argument appears to be that unsupported allegations of ineffective assistance and conflict of interest, regardless of their merits, automatically require the court to furnish the disgruntled client an unlimited opportunity to obtain alternate counsel. The defendant cites no Connecticut authority for this proposition, and we know of none. It is the province of the trial court to determine whether there is a factual basis for disqualification of counsel. In such a determination, the trial court is entitled to consider whether the defendant’s effort to displace existing counsel has substantive merit and is being pursued in good faith. See State v. Dukes, 157 Conn. 498, 506, 255 A.2d 614 (1969). In the absence of a factual record showing an abuse of discretion, the trial court’s failure to permit the withdrawal of counsel is not reversible error. See El Idrissi v. El Idrissi, 173 Conn. 295, 302-303, 377 A.2d 330 (1977). Furthermore, this court has only recently held that the inability to be represented by specific counsel, in the absence of demonstrated lack of effective representation, does not per se require a trial court to permit a continuance. State v. Beckenbach, 198 Conn. 43, 50, 501 A.2d 752 (1985); see State v. Stanley, 197 Conn. 309, 497 A.2d 46 (1985). The decision to grant or deny a continuance lies within the sound discretion of the trial court and will be upset on appeal only upon a showing of clear abuse of that discretion. State v. Beckenbach, supra, 47; State v. Stanley, supra, 311-12. On the present record, the defendant has not established that the trial court’s decision to deny his request for a continuance constituted an abuse of its discretion.

For similar reasons, we find no error in the trial court’s failure to recuse itself from hearing the defendant’s motions to withdraw his guilty pleas. The only possibly relevant fact before the court was that the defendant had alleged, in an entirely conclusory fashion, that he had been coerced into pleading guilty because of the collusion of the court with counsel for the state and for the defense. In the absence of a showing, on the record, that the trial court had been an active participant in negotiating the plea bargain, the trial court was entitled to reject such a conclusory allegation as warranting no further consideration. See State v. Lopez, 197 Conn. 337, 348-50, 497 A.2d 390 (1985); State v. Gradzik, 193 Conn. 35, 44-48, 475 A.2d 269 (1984); Hartford Federal Savings & Loan Assn. v. Tucker, 192 Conn. 1, 8, 469 A.2d 778 (1984). Indeed, the issue of disqualification was only raised by defense counsel, apparently as an afterthought, after the trial court had already ruled adversely on the motions for withdrawal of the guilty pleas.

The defendant’s final and more serious claim of error is that the trial court should not have denied his motions for withdrawal of his guilty pleas without then holding an evidentiary hearing into his mental competence at the time of the acceptance of his guilty pleas. This claim must be appraised in the context in which the issue was raised in the trial court.

Although the defendant made a claim, both in his written motions and in his arguments to the court at the withdrawal hearing, that he had been under the influence of “psychosis medication,” pursuit of that claim was not, in the trial court, the primary focus of his attack on his guilty pleas. The principal claim which he then addressed was that, because of ineffective assistance and advice from his counsel, he had been improperly persuaded to plead guilty. He repeatedly stated his desire to establish his innocence of the crimes with which he had been charged. Only once did he briefly advert to the claim that “[a]t the time plea was made and canvass was taken, your Honor, as you do know, as the record indicates ... I was and still am under medication, psychosis medication. And, at this time I am under medication.” Notably, despite his allegation that he was continuing to take “psychosis medication,” he did not then claim, and does not claim now, that he was incompetent to participate in any proceedings other than those which occurred when his guilty pleas were accepted.

In the light of this record, we are unpersuaded by the defendant’s assertion that the trial court erred in failing to hold an evidentiary hearing on the issue of the defendant’s mental state at the time of the guilty pleas. Procedurally, we note that the defendant did not himself request an evidentiary hearing at any time, and his counsel made no such request until after the court had ruled adversely on the defendant’s motions to withdraw his guilty pleas, when the court had already announced its readiness to proceed with sentencing. Substantively, the defendant does not satisfy the test laid down in State v. Torres, supra, 185-86, where we held that “[i]n considering whether to hold an evidentiary hearing on a motion to withdraw a guilty plea the court may disregard any allegations of fact, whether contained in the motion or made in an offer of proof, which are either conclusory, vague or oblique. For the purpose of determining whether to hold an evidentiary hearing, the court should ordinarily assume any specific allegations of fact to be true. If such allegations furnish a basis for withdrawal of the plea under § 721, and are not conclusively refuted by the record of the plea proceedings, and other information contained in the court file, then an evidentiary hearing is required.” See State v. Lasher, 190 Conn. 259, 266, 460 A.2d 970 (1983).

In this case, the defendant’s only allegations of fact at the time of the plea canvass had been that he had recently been taking prescription medicine, namely Elavil and Mellaril, and that he had been under psychiatric treatment for eight months. These allegations were in no way further substantiated in the motions for withdrawal of the pleas or in the hearing held on those motions.

In his motions for withdrawal of his guilty pleas, the defendant merely reiterated the name of the medications allegedly prescribed for him, but again failed to offer any specifics whatsoever about the nature or purpose of the medication or about the particular mental disease for which it had been prescribed, or the identity of the prescribing physician. This meager showing was insufficient to impose on the trial court an independent duty to search the pharmaceutical literature to discover the allegedly “psychotie” condition for which such medication is normally prescribed or to determine what effect the taking of such medication would have on competence to plead guilty. Compare State v. Smith, 185 Conn. 63, 86-87, 441 A.2d 84 (1981). Similarly, it was reasonable for the trial court to have assigned little or no significance, for evidentiary purposes, to the defendant’s vague and conclusory allegation of psychiatric treatment for an unnamed psychotic condition of undisclosed etiology. In sum, we agree with the trial court that the defendant failed to sustain his burden of coming forward with sufficiently specific unrefuted factual allegations to require an evidentiary inquiry into his alleged incompetence at the time of the acceptance of his guilty pleas.

There is no error.

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

Shea, J.,

dissenting. I disagree with the portion of the majority opinion that finds no error in the refusal of the trial court to allow a continuance so that the defendant would not be confronted with the Hobson’s choice of self-representation or continued representation by the attorney whom he had charged not only with incompetence but also with disloyalty and deceit.

In his motions to withdraw his guilty pleas the defendant alleged that his attorney had pressured him into pleading guilty and that his “attitude was one of disregard, distrustful, sneaky, disloyal, hostile, and one of disbelief.” Recognizing the conflict of loyalties created by these allegations of the defendant, his attorney quite properly sought to withdraw his appearance, a request that the trial court denied. “[A] lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own . . . personal interests.” (Emphasis added.) Code of Professional Responsibility, DR 5-101. The disloyalty and incompetence of his attorney were some of the grounds upon which the defendant sought to withdraw his pleas. The conflict of interests inherent in a situation where an attorney must assert his own misconduct as a basis for relief to his client is plain. Once a client has accused his attorney of serious misconduct, such as that charged by the defendant in this case, continuance of the attorney-client relationship at the behest of the court is incompatible with the canons of professional ethics.

The trial court’s failure to perceive the grotesquerie created by its insistence that the defendant continue to be represented by an attorney obviously inhibited by his personal interests in presenting his client’s claims implicates the fundamental constitutional rights of counsel and of due process. The right to effective counsel must be deemed to preclude representation by an attorney who must necessarily besmirch himself in order to advocate his client’s position properly. To present the defendant with this choice of representation as the sole alternative to becoming his own attorney makes a mockery of this constitutional right. At the time he attempted to withdraw his pleas the defendant appears to have been indigent, because he was then represented by a public defender in another pending case. The court, therefore, may well have been skeptical of his ability to retain another private attorney to replace the counsel he had engaged earlier in the proceeding. This circumstance, however, does not excuse the failure of the court to conduct the inquiry prescribed by Practice Book § 961 before permitting the defendant to proceed without counsel. See State v. Gethers, 193 Conn. 526, 534-39, 480 A.2d 435 (1984). Under this rule the court was obliged to advise the defendant of his right to appointed counsel if his indigency made private counsel unavailable to him. A defendant who is represented by private counsel may be required to show good cause to warrant his replacement by a public defender during the course of a criminal proceeding. The conflict of interests that arose here, however, when the defendant alleged misconduct by his attorney as a basis for withdrawing his pleas, was an ample demonstration of the necessity for a substitution of counsel. See McKee v. Harris, 649 F.2d 927, 931 (2d Cir. 1981), cert. denied, 456 U.S. 917, 102 S. Ct. 1773, 72 L. Ed. 2d 177 (1982); United States v. Calabro, 467 F.2d 973, 980 (2d Cir. 1972), cert. denied, 410 U.S. 926, 93 S. Ct. 1358, 35 L. Ed. 2d 587, reh. denied, 411 U.S. 941, 93 S. Ct. 1891, 36 L. Ed. 2d 404 (1973).

Under these circumstances the defendant’s election to represent himself in pursuing his motions to withdraw his guilty pleas was not the result of a knowing and voluntary waiver of his right to counsel. United States ex rel. Martinez v. Thomas, 526 F.2d 750, 755 (2d Cir. 1975). The refusal of the court to allow a continuance to afford the defendant a reasonable opportunity to obtain new counsel, therefore, not only infringed upon his right to counsel but effectively deprived him of due process of law.

Accordingly, I would set aside the judgment and remand the case for further proceedings upon the motion of the defendant to withdraw his guilty pleas.

       “[General Statutes] See. 53a-95. unlawful restraint in the first degree: class d felony, (a) A person is guilty of unlawful restraint in the first degree when he restrains another person under circumstances which expose the latter to a substantial risk of physical injury.”

       “[General Statutes] Sec. 53a-70. sexual assault in the first degree: class b felony: one year not suspendable. (a) A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person.”

       An Alford plea allows a defendant in a criminal case to consent to punishment as if he were guilty without his express acknowledgment of his guilt.

       "[Practice Book] Sec. 721. —grounds
      “The grounds for allowing the defendant to withdraw his plea of guilty after acceptance are as follows:
      “(1) The plea was accepted without substantial compliance with Sec. 711;
      “(2) The plea was involuntary, or it was entered without knowledge of the nature of the charge or without knowledge that the sentence actually imposed could be imposed;
      “(3) The sentence exceeds that specified in a plea agreement which had been previously accepted, or in a plea agreement on which the court had deferred its decision to accept or reject the agreement at the time the plea of guilty was entered;
      “(4) The plea resulted from the denial of effective assistance of counsel;
      “(5) There was no factual basis for the plea; or
      “(6) The plea either was not entered by a person authorized to act for a corporate defendant or was not subsequently ratified by a corporate defendant.”

       “[Practice Book] Sec. 632. —withdrawal

        “A motion for withdrawal of appearance shall be served on the prosecuting authority and other attorneys of record, and filed with the clerk in the same manner as entering an appearance. No such motion for withdrawal shall be granted by the judicial authority, except for good cause shown.”
      The court granted the defense counsel’s motion to withdraw one month later.

       At the sentencing proceedings which immediately followed the denial of the defendant’s motions, the court sentenced the defendant in accordance with the previously noted plea agreement. In each of the related files charging the defendant with possession of marijuana, failure to appear, and bribery, the court noted the state had terminated further prosecution by the entry of a nolle prosequi. On appeal, the defendant does not challenge the validity of the sentences he received.

       In his pro se motion to withdraw his pleas, the defendant misstated the names of the drugs in question. He claimed in his motion that he had been under the influence of “Elivil” and “Benedrly” when he pleaded guilty. During the plea canvass, he had identified the medication as “Elevil” and “Mellaril.”

       Paragraph 5 of the defendant’s motion to withdraw his plea, which was signed by him personally, was as follows:
      “5) As to the question of satisfaction with my attorney, what critera [sic] can a layman use to judge the competence of his attorney? You asked if I was satisfied with his representation — in his representing me the answer is yes, but do I feel he was competence [sic] in representing me to the best of his ability, No. My attorney’s defeatism attitude and open court presentation of his speech in regards to the case and the states case has also given me a chilling affect [sic] to his ability to protect my rights (as described in the constitution). My attorney’s constant in court companionship with my adversary would leave one thinking—and by his actions—that he felt we were defeated from the beginning and that he could best serve the court by constantly presenting plea bargains, and using the personal exposure that I faced if I lose. My attorney’s attitude was one of disregard, distrustful, sneaky, disloyal, hostile, and one of disbelief. If my attorney felt that way then he should have expressed that fact in the beginning instead of just trying to collect a substantial fee, for service not rendered in the best interest of his client. I may not be versed in law to any distinguishable degree but I do know a con-game when I see it.”

       “[Practice Book] Sec. 961.-waiver
      “A defendant shall be permitted to waive his right to counsel and shall be permitted to represent himself at any stage of the proceedings, either prior to or following the appointment of counsel. A waiver will be accepted only after the judicial authority makes a thorough inquiry and is satisfied that the defendant:
      “(1) Has been clearly advised of his right to the assistance of counsel, including his right to the assignment of counsel when he is so entitled;
      “(2) Possesses the intelligence and capacity to appreciate the consequences of the decision to represent himself;
      “(3) Comprehends the nature of the charges and proceedings, the range of permissible punishments, and any additional facts essential to a broad understanding of the case; and
      “(4) Has been made aware of the dangers and disadvantages of self-representation.”


author: Callahan, J. Arthur H. Healey, J.,

text:
    State of Connecticut v. Robert Earl Artis
    (12138)
    Peters, C. J., Healey, Shea, Dannehy and Callahan, Js.
    Argued December 11, 1985
    decision released February 11, 1986

      Timothy H. Everett, with whom, on the brief, was Timothy Pothin, certified legal intern, for the appellant (defendant).

      Edmund C. TiryaJcicm, special deputy assistant state’s attorney, with whom were Julia D. Dewey, assistant state’s attorney, and, on the brief, Arnold Markle, state’s attorney, for the appellee (state).
   Callahan, J.

The defendant was charged in a substitute information with sexual assault in the first degree in violation of General Statutes (Rev. to 1979) § 53a-70 (a) and unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a). After a trial, a jury found him guilty as charged and he was sentenced to an effective term of imprisonment of not less than seven nor more than fourteen years. The defendant has appealed claiming that there was insufficient evidence for the jury to have found him guilty of sexual assault in the first degree and, therefore, that the trial court erred in denying his motion for acquittal. The sole issue on appeal is whether the state presented sufficient evidence of penetration for the jury to find that element of the crime proved beyond a reasonable doubt.

A recital of some of the relevant facts which the jury might reasonably have found is necessary for consideration of the defendant’s claim. On the evening of October 23, 1980, while waiting for a bus at the corner of Grand Avenue and Shelter Street in New Haven, the victim was offered a ride by Willie Barrett and the defendant, Robert Earl Artis, both of whom she had known for a number of years. Instead of driving her to her destination, the two took her to a dirt road in a remote area of Wallingford. Once there, both the defendant and Barrett climbed into the back seat of Barrett’s car where the victim was seated. The victim was then punched and threatened with a sharp instrument and despite her struggles her jeans and underpants were removed. The victim testified that at that point her legs were “tight together, straight, facing the front ways,” but that Barrett was holding her around the waist and the defendant was “[tjrying to open—pull my legs apart.” They eventually succeeded in opening her legs. Then, she said, “Robert had sex with me” and “Robert did it.” In response to the state’s attorney’s question, “When you say he ‘did it’ did he have sexual intercourse with you?” The victim answered, “Yes.” She also answered “yes” to the state’s attorney’s question, “At some point Robert finished having sex with you, is that correct?” Barrett then had sexual intercourse with the victim.

The victim was then released from the car without jeans or underpants in order to relieve herself. She made an unsuccessful attempt to obtain aid or escape but returned to the car when the pair threatened to leave her. She thought then that her ordeal was over. The defendant, however, drove the car a short distance to a circular area, stopped and again got into the back seat with Barrett and the victim. The victim “started tussling with them again” but Barrett had sexual relations with her. The state’s attorney asked, “And then, when he was through, what happened?” The victim answered “Robert.” The state’s attorney asked, “Robert, what?” The victim replied, “He had sex with me.” The state’s attorney then asked, “And he got into the back seat and had regular sexual intecourse with you?” The victim answered, “Yes.” The defendant then got behind the wheel and started to drive, and Barrett got “on top” of her and had “sex” with her again.

Eventually the victim was driven to her home in New Haven. Upon leaving Barrett’s car, she ran toward her house screaming for her brother. She encountered her brother’s girlfriend and told her she had “just got raped” by Barrett and the defendant. Shortly thereafter she told a female New Haven police officer that she “had got raped.” She also testified that she told a physician at Yale-New Haven Hospital that she “had got raped.” On cross-examination, in response to a question by defense counsel asking her if she recalled how many times she was “sexually assaulted” by the defendant, the victim answered “twice.”

Richard Holden, a physician who examined the victim at Yale-New Haven Hospital in the early morning hours of October 24, testified that he observed bruising of the victim’s face and wrist but that he did not observe any injury to the vagina or pelvic region. He also testified that swabs he took did not reveal the presence of sperm, but that that was “not unusual.” Abraham Stolman, a toxicologist, testified that an examination revealed seminal stains on the defendant’s underpants and on the victim’s underpants.

The defendant claims that because the victim neither used the word “penetration” in her testimony nor testified explicitly that she had been penetrated when the defendant engaged in sexual intercourse with her, the state failed to produce sufficient evidence to prove his guilt. He argues that there must be some direct evidence or testimony that there was penetration before a jury can determine beyond a reasonable doubt that vaginal sexual intercourse has occurred. We disagree.

“The state must prove every essential element of the crime beyond a reasonable doubt and, while the jury may draw reasonable and logical inferences, it may not resort to speculation.” State v. Green, 194 Conn. 258, 274, 480 A.2d 526 (1984). However, evidence, whether direct or circumstantial, which convinces a jury beyond a reasonable doubt is all that is required to sustain a conviction; State v. Dubina, 164 Conn. 95, 98, 318 A.2d 95 (1972); and “evidence . . . must be given a construction most favorable to sustaining the jury’s verdict.” State v. Jackson, 176 Conn. 257, 262, 407 A.2d 948 (1978). “ ‘When a jury verdict is challenged on the ground that the evidence is insufficient to sustain the verdict, the issue is whether the jury could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt.’ ” State v. Saracino, 178 Conn. 416, 419, 423 A.2d 102 (1979), quoting State v. Jackson, supra.

There is no doubt that penetration is an element of the crime of sexual assault in the first degree when the state alleges that vaginal sexual intercourse was accomplished by force. State v. Kish, 186 Conn. 757, 763, 765, 443 A.2d 1274 (1982); see General Statutes § 53a-65 (2). The state was therefore required to prove penetration beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970).

Whether there was actual penetration was a question of fact for the jury. Beckley v. State, 353 So. 2d 542, 544 (Ala. Crim. App. 1977). Proof of penetration need not take any particular form and may be proved by circumstantial evidence. Swint v. State, 455 So. 2d 285, 287 (Ala. Crim. App. 1984); Beckley v. State, supra; State v. Golden, 430 A.2d 433, 436 (R.I. 1981). “When one of understanding testifies to a completed act of sexual intercourse, it has been held to be sufficient proof of penetration.” State v. Golden, supra. “The prosecutrix’s testimony here that the defendant had ‘sex’ and ‘intercourse’ with her likewise was sufficient to support a finding by the jury that there was penetration.” State v. Ashford, 301 N.C. 512, 514, 272 S.E.2d 126 (1980); see also People v. Van Allen, 275 App. Div. 181, 188, 89 N.Y.S.2d 594 (1949).

We need not assume that the jury was either so naive or so jaded by tales of sexual deviation that if it believed the victim’s testimony, particularly her affirmation that the defendant had “regular sexual intercourse” with her, it could not reasonably have concluded that penetration occurred. The evidence was sufficient for the jury to find the defendant guilty as charged.

There is no error.

In this opinion Peters, C. J., Shea and Dannehy, Js., concurred.

Arthur H. Healey, J.,

concurring. I write separately to underscore what I deem to be a possible yet unintended interpretation of the majority opinion: that a jury, consistent with its sworn duty to convict only upon proof beyond a reasonable doubt, may be considered either naive or jaded for not convicting where somewhat generic terms are all the evidence there is to prove an essential element of sexual assault in the first degree. While I concur in the result, I, nevertheless, make the following observations.

The conduct of this defendant was abhorrent, detestable and repulsive; but this in no fashion lessened the state’s burden of proof. I do not maintain that the victim of such a crime must be required to go into sordid detail in order for the state to establish that penetration actually occurred during the course of the assault. It is my view that although consent to the act was the main issue in this case, it nevertheless does not detract from the state’s obligation to prove all the elements of sexual assault in the first degree with greater clarity than was done here, especially insofar as the element of penetration is concerned. I do subscribe to the view that “ ‘[jjurors are not “expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life, but, on the contrary, to apply them to the evidence or facts in hand, to the end that their action may be intelligent and their conclusions correct.” (Citations omitted.)’ ” State v. Scielzo, 190 Conn. 191, 198 n.11, 460 A.2d 951 (1983), quoting Frankovitch v. Burton, 185 Conn. 14, 22, 440 A.2d 254 (1981). Moreover, there is nothing to indicate that the jury in this case acted other than honorably and faithfully in their duty.

Courts have frequently approved Sir Matthew Hale’s statements with respect to the crime of rape that “it must be remembered, that it is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, though never so innocent . . . . ” 1 Hale, Pleas of the Crown (1778) p. 634; see, e.g., People v. Asavis, 22 Cal. App. 2d 492, 497, 71 P.2d 306 (1937); State v. Madrid, 74 Idaho 200, 206, 259 P.2d 1044 (1953); Carr v. State, 208 So. 2d 886, 889 (Miss. 1968); 75 C.J.S., Rape § 66. “Reviewing courts are especially charged with the duty of carefully examining the evidence in rape cases. [People v. Kazmierczyk, 357 Ill. 592, 192 N.E. 657 (1934)].” People v. Qualls, 21 Ill. 2d 252, 257, 171 N.E.2d 612 (1961).

“[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. DelVecchio, 191 Conn. 412, 419, 464 A.2d 813 (1983). It cannot be seriously argued that one need be considered sybaritic in requiring the state to adduce somewhat more explicit evidence than we see in the evidence of penetration in this case. This could be done without being offensive to delicacy while at the same time enhancing a just result. The evidence of that element here, together with the majority’s view that an acquittal in this case might create the perception that the trier of fact was either naive or jaded, impels this due process observation: “[T]he requirement of due process of law in judicial procedure is not satisfied by the argument that men of the highest honor and greatest self-sacrifice could carry it on without danger of injustice. Every procedure which would offer a possible temptation to the average man . . . to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law.” Tumey v. Ohio, 273 U.S. 510, 532, 47 S. Ct. 437, 71 L. Ed. 749 (1927); Estes v. Texas, 381 U.S. 532, 543, 85 S. Ct. 1628, 14 L. Ed. 2d 543, reh. denied, 382 U.S. 875, 86 S. Ct. 18, 15 L. Ed. 2d 118 (1965).

I, therefore, concur in the result.

       “[General Statutes (Rev. to 1979)] Sec. 53a-70. SEXUAL assault in the first degree: class b felony, (a) A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or (2) by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person.”

       “[General Statutes] Sec. 53a-95. unlawful restraint in the first degree: class d felony, (a) A person is guilty of unlawful restraint in the first degree when he restrains another person under circumstances which expose the latter to a substantial risk of physical injury.”

       Barrett was independently tried and convicted. His conviction was reversed by this court in State v. Barrett, 197 Conn. 50, 495 A.2d 1044 (1985), for reasons unrelated to this appeal.


author: Peters, C. J.

text:
    New England Yacht Sales, Inc. v. Commissioner of Revenue Services
    (12606)
    Peters, C. J., Healey, Dannehy, Santaniello and Callahan, Js.

      Argued January 7
    decision released February 11, 1986

      J. Bruce Boisture, with whom were Kenneth E. Werner and, on the brief, William G. DeLana, for the appellant (plaintiff).

      Jonathan L. Ensign, assistant attorney general, with whom were Frederick P. Clark, tax attorney, and, on the brief, Joseph I. Lieberman, attorney general, and Richard K. Greenberg, assistant attorney general, for the appellee (defendant).
   Peters, C. J.

In this case involving an assessment under the state sales tax; General Statutes § 12-408 (1); the principal issue is the interpretation of the language of General Statutes § 12-407 (2) that defines a “sale” as “[a]ny transfer of title ... of tangible personal property.” The plaintiff, New England Yacht Sales, Inc., brought this action against the defendant commissioner of revenue services to contest a sales tax assessment by the department of revenue services arising out of the plaintiffs sales of two yachts to nonresidents of the state of Connecticut. The trial court affirmed the validity of the assessment, and the plaintiff appeals. We find no error.

This case has been pursued, both in the trial court and on appeal, on a stipulation of facts that relates to the taxability of the sales that occurred, and not to the mathematical calculation of the assessment against the plaintiff. The relevant facts are that during 1980 the plaintiff, a Connecticut corporation doing business in Essex, entered into two transactions for the sale of yachts, one to Robert Pease, a resident of Rhode Island, and the other to Joan Y Ltd., a Delaware corporation wholly owned by Morton R. Reisfeld, a resident first of New York and later of New Jersey. Each transaction was memorialized by two form contracts: a yacht sales agreement and a marine bill of sale. Each yacht sales agreement described the parties, the yacht, the price, the payment terms, the delivery date and the seller’s limited warranties of merchantability and fitness. Neither agreement contained any provision or agreement regarding passage of title to the yacht. Each marine bill of sale described the parties and the yacht, included a warranty of title by the seller, and further stated that the seller was, by its delivery, transferring all right, title and interest to the purchaser.

The Pease yacht was sold in the following circumstances. On October 18,1980, having received payment in full for the yacht, the plaintiff issued and delivered its marine bill of sale to the buyer, Pease. The yacht, although new, was not then in seaworthy condition, and the plaintiff undertook to furnish and install designated equipment in order to make the yacht safe and reliable. Over the winter of 1980-81, the plaintiff was expressly obligated to store the yacht, at its own expense, at an Essex boatyard. The plaintiff terminated its insurance coverage for the yacht on January 1, 1981, and delivered the yacht to Pease in Rhode Island on May 8,1981. Pease has neither moored nor sailed the yacht in Connecticut, and has paid a Rhode Island use tax with respect to his use of the yacht.

The Reisfeld yacht was sold under similar circumstances. The plaintiff, after payment in full, issued its marine bill of sale to the buyer on December 20,1980. Like the Pease yacht, the Reisfeld yacht needed to be made seaworthy, and was stored over the winter at the plaintiffs expense, albeit without an express agreement as to storage. On January 1, 1981, the plaintiff withdrew the yacht from its insurance coverage, and on May 1,1981, the plaintiff delivered the yacht to Reisfeld in New York. The Reisfeld yacht has been neither moored nor sailed in Connecticut.

On appeal, the plaintiff has raised two claims of error. The plaintiff maintains that: (1) no Connecticut sales tax liability accrued for the sale of the yachts because no transfer of title occurred until delivery of the yachts to their respective purchasers outside of Connecticut; and (2) if Connecticut sales tax liability did accrue, the plaintiff should have received a credit in the amount of the use tax paid in Rhode Island. We are unpersuaded by either of these claims of error.

I

The plaintiff’s principal claim is that the trial court failed to invoke the proper standard for determining when a sales tax may lawfully be imposed. A sales tax is levied by General Statutes § 12-408 (1) on “sales as defined in subsection (2) of section 12-407.” The latter subsection defines “sale” and “selling” as “[a]ny transfer of title ... of tangible personal property.” The department of revenue services has not articulated a rule for determining when title passes for sales tax purposes. The trial court consulted both the title provision of the Uniform Commercial Code; General Statutes § 42a-2-401; and antecedent common law rules to find support for its conclusion that it should determine when title passed by looking to the intent of the parties. Relying on the terms of the contracts to purchase and the marine bills of sale, and on the exchange in this state of these papers for the payment of the purchase price, the court found that the sales had taken place in Connecticut because “the intent of the two buyers and of the seller was in each instance that the title pass at the latest upon receipt of the Marine Bill of Sale.”

The plaintiff argues that the trial court was in error both in its legal determination that the intent of the parties is the proper test for transfer of title and in its factual finding that these parties intended title to pass in Connecticut. We shall consider these two arguments separately.

In the absence of a statutory or regulatory clarification of what “transfer of title” means for sales tax purposes, the plaintiff urges us to rely on tests for the transfer of title that are set out in article 2 of the Uni" form Commercial Code. This court, on a number of occasions, has looked to the Uniform Commercial Code as a fruitful source of analogy. See Conference Center Ltd. v. TRC, 189 Conn. 212, 225, 455 A.2d 857 (1983); Hamm v. Taylor, 180 Conn. 491, 494-95, 429 A.2d 946 (1980). Courts in other jurisdictions have interpolated the Uniform Commercial Code’s provisions on transfer of title into the definitions contained in their sales tax statutes. State v. Delta Air Lines, Inc., 356 So. 2d 1205, 1207 (Ala. Civ. App. 1978); King v. State Board of Equalization, 22 Cal. App. 3d 1006, 1012-13, 99 Cal. Rptr. 802 (1972); O’Brien v. Isaacs, 32 Ill. 2d 105, 107, 203 N.E.2d 890 (1965); Crown Iron Works Co. v. Commissioner of Taxation, 298 Minn. 213, 215-17, 214 N.W.2d 462 (1974); but see Richards v. Blackmon, 233 Ga. 739, 742, 213 S.E.2d 638 (1975); Harbor Air Service, Inc. v. Board of Tax Appeals, 88 Wash. 2d 359, 364-65, 560 P.2d 1145 (1977). It is therefore worth examining the relevant sections of the sales article of the code to see what illumination they shed on the problem before us.

The section of the Uniform Commercial Code to which the plaintiff directs our attention is § 42a-2-401. Three features of that section are particularly noteworthy. First, the section addresses title questions only as they relate to residual controversies between the immediate parties to the contract of sale. The section has only residual import because other sections in article 2 contain specific rules, “irrespective of title,” regarding the rights, obligations and remedies of the seller and the buyer. Within its residual jurisdiction, the section deals with the rights of the parties themselves and not with the rights of third party purchasers or creditors. Compare General Statutes §§ 42a-2-402 and 42a-2-403. Since a tax collector is an involuntary creditor, rather than an immediate party to a contract of sale, the propriety of literal reliance on § 42a-2-401 in the context of tax assessments is arguable. Second, although § 42a-2-401 in some circumstances provides objective tests for the passage of title, the section’s baseline principle is that, for identified goods such as are at issue here, title passes from the seller to the buyer “in any manner and on any conditions explicitly agreed on by the parties.” General Statutes § 42a-2-401 (1). Even the objective tests contained in § 42a-2-401 (2) and (3) apply only where the parties have not “otherwise explicitly agreed.” Third, one objective test for the passage of title, applicable in the absence of explicit agreement to the contrary, is “the time and place at which the seller completes his performance with reference to the physical delivery of the goods.” General Statutes § 42a-2-401 (2). The scope of the seller’s duty of performance with respect to delivery, is, however, to be found in what the contract of sale requires or authorizes him to do in that regard. General Statutes § 42a-2-401 (2) (a) and (b).

Read carefully, therefore, § 42a-2-401 provides little support for the plaintiff’s argument that the trial court in this case erred in looking to the intent of the parties, rather than to the postponed delivery of the yachts, in determining when title passed from the plaintiff to the purchasers. The trial court expressly found that neither the yacht sales agreements nor the marine bills of sale contained an express agreement between the parties as to the place of delivery of either yacht. There is nothing in the stipulation of facts to demonstrate that the plaintiff’s delivery of the yachts to the purchasers in May of 1981 was in fulfillment of its contract obligations of the previous fall. On this record, the plaintiff has failed to establish the factual predicate for its invocation of the code’s objective test tying passage of title to completion of delivery arrangements. General Statutes § 42a-2-401 (2).

In any case, however, whether as a counterpoint to the presumptive rule of § 42a-2-401 (2) or as a direct application of the basic rule of § 42a-2-401 (1), the determinative issue under the code is the explicit agreement of the parties concerning passage of title. “Section 2-401 (1) purports to allow the parties to control passage of title, as between them, by contract terms.” (Emphasis in original.) White & Summers, Uniform Commercial Code (2d Ed. 1980) § 3-11, p. 139. The trial court’s examination of the contractual arrangements between the parties for objective factual evidence of their intent concerning passage of title was thus entirely consistent with the methodology of the Uniform Commercial Code.

Once it is established that the trial court applied a correct legal standard in upholding the challenged tax assessment, the only remaining question is whether the court’s factual finding was clearly erroneous. Practice Book § 3060D; Bead Chain Mfg. Co. v. Saxton Products, Inc., 183 Conn. 266, 274-75, 439 A.2d 314 (1981); Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). When it is remembered that the burden of proving an error in a deficiency assessment is on the plaintiff; H. B. Sanson, Inc. v. Tax Commissioner, 187 Conn. 581, 586, 447 A.2d 12 (1982); Modugno v. Tax Commissioner, 174 Conn. 419, 421, 389 A.2d 745 (1978); Fusco-Amatruda Co. v. Tax Commissioner, 168 Conn. 597, 599, 362 A.2d 847 (1975); that question is easily resolved. Although the parties stipulated that the yacht sales agreements contained no provision or agreement regarding passage of title to the yachts, the marine bills of sale did address that issue. Each marine bill of sale stated that the plaintiff “hereby transfers all of its right, title, and interest together with all gear, equipment, and necessaries appertaining and belonging to said vessel” to the respective purchaser. The plaintiff has offered no reason why this language should not be taken literally, to show that by its issuance title was intended to be transferred to the purchaser. Compare Bowman v. American Home Assurance Co., 190 Neb. 810, 814, 213 N.W.2d 446 (1973). Although title verbiage in some specialized commercial engagements, such as documents of title and reservations of title; General Statutes § 42a-l-201 (15) and (37); is recognized to be an unreliable indicator of the passage of title for the purposes of § 42a-2-401, the parties have not suggested that there exists a similar commercial usage with regard to marine bills of sale. That the parties did explicitly agree that title was to pass upon the transfer of the marine bills of sale is reenforced, furthermore, by the remaining arrangements between them. Had the plaintiff continued to own the Pease yacht after October, it would have been superfluous to have a provision in the yacht sales agreement expressly requiring the plaintiff, at its own expense, to arrange for winter storage of the yacht. A similar agreement was implied with respect to the Reisfeld yacht. If the plaintiff had retained full ownership of the yachts, it is not likely that it would have withdrawn them from its insurance coverage. The fact that the plaintiff contracted to make the yachts seaworthy had no necessary bearing either on their identification to the contract or on the passage of title. See General Statutes § 42a-2-501, Official Comment 4. Finally, while identification of the goods to the contract is essential to the passage of title under § 42a-2-201, delivery to the purchaser is not. Tatum v. Richter, 280 Md. 332, 336-37, 373 A.2d 923 (1977); Holstein v. Greenwich Yacht Sales, Inc., 122 R.I. 211, 216, 404 A.2d 842 (1979). We have no basis, on this record, for overturning the trial court’s determination that the transfer of title to these two yachts occurred in this state.

It may be useful to add that, on a different factual record, the principles embodied in § 42a-2-401 of the Uniform Commercial Code may well serve as a useful factual referent for determining the time and place at which the parties to a sales contract intended to transfer title from the seller to the buyer. A seller’s delivery obligations may, for example, be established by the express terms of an agreement or by an applicable course of dealing or usage of trade. See General Statutes § 42a-l-205. A more complete factual record may shed further light on the meaning attached by the parties to the language of the papers they exchanged. See General Statutes § 42a-2-202. On the record presently before us, however, the trial court could properly find that the plaintiff in this case had transferred title to these two yachts in Connecticut and was therefore properly assessed for Connecticut sales tax with regard to these sales.

II

The plaintiff’s alternate argument is that, if sales tax liability was properly assessed, it is entitled to a credit, under General Statutes § 12-430 (5), for the use tax paid on the Pease yacht in Rhode Island. Both our statutes and that of Rhode Island provide exemptions for sales and use taxes on articles of tangible personal property already taxed in another state. See R.I. Gen. Laws § 44-18-30A (1980). To avoid unwarranted double taxation, the plaintiff claims it should be entitled to pro rata equitable relief in accordance with General Statutes § 12-422.

The plaintiffs claim is difficult to square with the language of § 12-430 (5). That statute provides a credit in the event that “any service or article of tangible personal property has already been subjected to a sales or use tax by any other state . . . and payment made thereon . . . .’’(Emphasis added.) Since the plaintiff’s liability for sales tax in this state was antecedent to the purchaser’s payment of use tax in Rhode Island, the plaintiff can succeed only if we give retroactive effect to the Rhode Island payment. Such retroactive effect would be inconsistent with the general rule that statutory exemptions are a matter of legislative grace and are thus strictly construed against the taxpayer. The B. F. Goodrich Co. v. Dubno, 196 Conn. 1, 8-9, 490 A.2d 991 (1985); Yaeger v. Dubno, 188 Conn. 206, 212, 449 A.2d 144 (1982). As in Connecticut Theater Foundation, Inc. v. Brown, 179 Conn. 672, 677, 427 A.2d 863 (1980), the plaintiff cannot rely on an exemption that did not yet exist when its tax obligation became due.

Apparently recognizing that § 12-430 (5) poses serious obstacles to its claim for a credit, the plaintiff relies on § 12-422, which allows the Superior Court to grant aggrieved taxpayers “such relief as may be equitable.” That statute permits the Superior Court to review assessments of interest and of penalties; H. B. Sanson, Inc. v. Tax Commissioner, supra, 586-88; but such relief was afforded in this case when the trial court expressly declined to assess any penalty on either of the plaintiffs yacht sales. We are unpersuaded that this plaintiff is entitled to further equitable consideration for taxes paid by a different taxpayer for that taxpayer’s use, in a different state, of a yacht formerly owned by this plaintiff.

There is no error.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1981) § 12-408 (1) provides: “Sec. 12-408. the SALES TAX. (1) IMPOSITION AND RATE OF SALES TAX. For the privilege of making any sales as defined in subsection (2) of section 12-407, at retail, in this state for a consideration, a tax is hereby imposed on all retailers at the rate of seven and one-half per cent of the gross receipts of any retailer from the sale of all tangible personal property, except as hereinafter provided, sold at retail or, with respect to each transfer of occupancy, from the total amount of rent received for such occupancy, of any room or rooms in a hotel or lodging hosue for the first period of not exceeding thirty consecutive calendar days, and in lieu of said rate of seven and one-half per cent, at the rate of three and one-half per cent of the gross receipts of any retailer from the rendering of any service described in subdivision (i) of said subsection (2) of section 12-407. The rate of tax imposed by this chapter shall be applicable to all retail sales upon the effective date of such rate, except that a new rate shall not apply to any sales transaction wherein a binding sales contract without an escalator clause has been entered into prior to the effective date of the new rate and delivery is made within ninety days after the effective date of the new rate.” •

       General Statutes (Rev. to 1983) § 12-407 (2) provides: “definitions. Whenever used in this chapter ... (2) ‘Sale’ and ‘selling’ mean and include: (a) Any transfer of title, exchange or barter, conditional or otherwise, in any manner or by any means whatsoever, of tangible personal property for a consideration; (b) any withdrawal, except a withdrawal pursuant to a transaction in foreign or interstate commerce, of tangible personal property from the place where it is located for delivery to a point in this state for the purpose of the transfer of title, exchange or barter, conditional or otherwise, in any manner or by any means whatsoever, of the property for a consideration; (c) the producing, fabricating, processing, printing or imprinting of tangible personal property for a consideration for consumers who furnish either directly or indirectly the materials used in the producing, fabricating, processing, printing or imprinting, including but not limited to computer programming, sign construction, photofinishing, duplicating and photocopying; (d) the furnishing and distributing of tangible personal property for a consideration by social clubs and fraternal organizations to their members or others; (e) the furnishing, preparing, or serving for a consideration of food, meals or drinks; (f) a transaction whereby the possession of property is transferred but the seller retains the title as security for the payment of the price; (g) a transfer for a consideration of the title of tangible personal property which has been produced, fabricated or printed to the special order of the customer, or of any publication, including but not limited to computer programming, sign construction, photofinishing, duplicating and photocopying; (h) a transfer for a consideration of the occupancy of any room or rooms in a hotel or lodging house for a period of thirty consecutive calendar days or less; (i) the rendering of certain services for a consideration, exclusive of such services rendered by an employee for his employer, as follows: (A) Computer and data processing services, including but not limited to time, (B) credit information and reporting services, (C) services by collection agencies, employment agencies and agencies providing personnel services, (D) commercial and industrial marketing, development, testing and research services, (E) private investigation, protection, patrol work, watchman and armored car services, (F) painting and lettering services, (G) interior design and decorating services, (H) telephone answering services, (I) stenographic services, (J) services to industrial, commercial or income-producing real property, including but not limited to such services as management, maintenance, janitorial, electrical, plumbing, painting, carpentry, landscaping and exterminating, and excluding any such services rendered with respect to the renovation of any such real property if the cost of such renovation is capitalized for federal income tax purposes, provided income-producing property shall not include property used exclusively for residential purposes in which the owner resides and which contains no more than three dwelling units, or a housing facility for low and moderate income families and persons owned by an organization which has as one of its purposes the ownership of housing for low and moderate income families, and which organization has been granted exemption from federal income taxation, (K) business analysis and management services, and (L) services providing ‘piped-in’ music to business or professional establishments; (j) the leasing or rental of tangible personal property of any kind whatsoever, including but not limited to motor vehicles, linen or towels, machinery or apparatus, office equipment and data processing equipment. Wherever in this chapter reference is made to the sale of tangible personal property or services, it shall be construed to include sales described in this subsection.”

       The stipulation of the parties refers both to the yacht sales agreements and to the marine bills of sale executed and delivered by the plaintiff to the purchasers. Copies of the text of the yacht sales agreements, but not of the marine bills of sale, were attached to the stipulations. In the trial court, however, the parties’ briefs, without objection, discussed the significance of both sets of papers, and the trial court’s memorandum of decision indicates that it considered the terms of both sets of papers. We therefore consider the record, as did the trial court, to include the marine bills of sale as well as the yacht sales agreements.

       General Statutes § 42a-2-401 provides: “Sec. 42a-2-401. PASSING of TITLE; RESERVATION FOR SECURITY; LIMITED APPLICATION OF THIS SECtion. Each provision of this article with regard to the rights, obligations and remedies of the seller, the buyer, purchasers or other third parties applies irrespective of title to the goods except where the provision refers to such title. Insofar as situations are not covered by the other provisions of this article and matters concerning title become material the following rules apply:
      “(1) Title to goods cannot pass under a contract for sale prior to their identification to the contract as provided by section 42a-2-501 and unless otherwise explicitly agreed the buyer acquires by their identification a special property as limited by this title. Any retention or reservation by the seller of the title (property) in goods shipped or delivered to the buyer is limited in effect to a reservation of a security interest. Subject to these provisions and to the provisions of article 9, title to goods passes from the seller to the buyer in any manner and on any conditions explicitly agreed on by the parties.
      “(2) Unless otherwise explicitly agreed title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods, despite any reservation of a security interest and even though a document of title is to be delivered at a different time or place; and in particular and despite any reservation of a security interest by the bill of lading (a) if the contract requires or authorizes the seller to send the goods to the buyer but does not require him to deliver them at destination, title passes to the buyer at the time and place of shipment; but (b) if the contract requires delivery at destination, title passes on tender there.
      “(3) Unless otherwise explicitly agreed where delivery is to be made without moving the goods, (a) if the seller is to deliver a document of title, title passes at the time when and the place where he delivers such documents; or (b) if the goods are at the time of contracting already identified and no documents are to be delivered, title passes at the time and place of contracting.
      “(4) A rejection or other refusal by the buyer to receive or retain the goods, whether or not justified, or a justified revocation of acceptance revests title to the goods in the seller. Such revesting occurs by operation of law and is not a ‘sale.’ ”

       Title to goods cannot pass under a contract for sale before their identification; General Statutes § 42a-2-401 (1); but existing goods are presumptively identified as the goods to which the contract refers at the time the contract is made. General Statutes § 42a-2-501 (1) (a). The yachts sold by the plaintiff in this case were in existence and identified by serial number in the marine bills of sale.

       Although the parties stipulated that the plaintiff had physically delivered the yachts, in May of 1981, to their respective purchasers, the record is entirely silent about the contractual circumstances leading to these delivery arrangements.
      Historically, the significance of contractual delivery arrangements for the determination of the passage of title depended in part upon whether the goods had been specifically identified at the time of the contract of sale. Compare Uniform Sales Act §§ 19 (5) with 19 (1). Official Comment 4 to § 42a-2-401 suggests that the common law distinction may still have some validity: “The factual situations in subsections (2) and (3) upon which passage of title turn actually base the test upon the time when the seller has finally committed himself in regard to specific goods. Thus in a ‘shipment’ contract he commits himself by the act of making the shipment. If shipment is not contemplated subsection (3) turns on the seller’s final commitment, i.e. the delivery of documents or the making of the contract.” Applying the rationale of this comment, the trial court could reasonably have concluded that the plaintiff in this case had fully committed himself to sale of the two yachts specifically described in the marine bills of sale at the time when the marine bills of sale were delivered to the purchasers.

       General Statutes § 12-430 (5) provides: “miscellaneous provisions. ... (5) payment of sales or use tax to another state. If any service or article of tangible personal property has already been subjected to a sales or use tax by any other state or political subdivision thereof and payment made thereon in respect to its sale or use in an amount less than the tax imposed by this chapter, the provisions of this chapter shall apply, but at a rate measured by the difference, only, between the rate herein fixed and the rate by which the previous tax upon the sale or use was computed. If such tax imposed in such other state or political subdivision thereof is equivalent to or in excess of the rate imposed under this chapter at the time of such sale or use, then no tax shall be due on such article.”

       General Statutes § 12-422 provides: “Sec. 12-422. appeal. Any taxpayer aggrieved because of any order, decision, determination or disallowance of the commissioner of revenue services under section 12-418, 12-421 or 12-425 may, within one month after service upon the taxpayer of notice of such order, decision, determination or disallowance, take an appeal therefrom to the superior court for the judicial district of Hartford-New Britain, which shall be accompanied by a citation to the comissioner of revenue services to appear before said court. Such citation shall be signed by the same authority, and such appeal shall be returnable at the same time and served and returned in the same manner, as is required in case of a summons in a civil action. The authority issuing the citation shall take from the appellant a bond or recognizance to the state of Connecticut, with surety to prosecute the appeal to effect and to comply with the orders and decrees of the court in the premises. Such appeals shall be preferred cases, to be heard, unless cause appears to the contrary, at the first session, by the court or by a committee appointed by it. Said court may grant such relief as may be equitable and, if such tax has been paid prior to the granting of such relief, may order the treasurer to pay the amount of such relief, with interest at the rate of six per cent per annum, to the aggrieved taxpayer. If the appeal has been taken without probable cause, the court may tax double or triple costs, as the case demands; and, upon all such appeals which are denied, costs may be taxed against the appellant at the discretion of the court, but no costs shall be taxed against the state.”

       We express no opinion about the extent to which either of the two purchasers is now obligated to reimburse the plaintiff for the sales tax attributable to these transactions.


author: Per Curiam.

text:
    State of Connecticut v. Felix Cobbs
    (11487)
    Peters, C. J., Healey, Dannehy, Santaniello and Callahan, Js.
    Argued January 7
    decision released February 18, 1986

      Bruce L. Levin, special public defender, with whom, on the brief, was Lauren M. Weisfeld, special public defender, for the appellant (defendant).

      Susann E. Gill, deputy assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and Richard A. Schatz, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The defendant, Felix Cobbs, was convicted, after a trial to a three judge court, of felony murder in violation of General Statutes § 53a-54c. In his appeal, the defendant has challenged the sufficiency of the evidence against him, the effectiveness of his legal representation at trial, and the failure of the state to disclose potentially exculpatory information.

The trial court’s unanimous judgment holding the defendant guilty of the crime charged was rendered on August 21, 1981, and was accompanied by a memorandum of decision containing certain findings of fact. The trial court denied the defendant’s motions for acquittal and for correction of the finding of facts. Thereafter, in response to an amended motion for a new trial, the court opened its judgment to hear additional testimony favorable to the defendant. After hearing and deliberation, the court affirmed its August 21, 1981 decision and found the defendant guilty as charged.

In assessing the defendant’s claim that the evidence against him was insufficient to establish his guilt of felony murder, we must look to the trial court’s findings of fact. The court found that three men, including the defendant, on or about midnight on the evening of June 14 or during the early hours of the morning of June 15,1980, forcibly dragged Nestor Rodriguez, the victim, to the rear yard of a pool hall located at 98 Barbour Street in Hartford. The victim had previously been observed with a foot long knife protruding from his rear waistband. Officer Leo Shoupron of the Hartford police department, in response to information provided by neighborhood onlookers, conducted a twenty-five minute search of the area at about 12:20 a.m. The site was poorly illuminated, covered with undergrowth, junk cars and litter, and he found nothing. Returning to the scene a short time later, he sought additional police assistance to continue the search. At 2:21 a.m., Officer Gary Dumas and another policeman found the body of the victim in the front yard of a house about one hundred yards from 98 Barbour Street.

The trial court, in its memorandum of decision, stated that when the victim was found, he “had been stabbed three times and the pocket or pockets of his trousers were ripped, tom and/or exposed. No knife or valuables were found either on the body or in the surrounding area. Detective [James] Doyle, a robbery expert, felt that the victim had been mugged. Officer Dumas ascertained that the body was cold and displayed no vital signs upon his arrival. Dr. Hazen [Assistant Medical Examiner] felt the body was warm about 4:05 a.m. An autopsy was performed by Dr. [Stephen] Adams and Dr. [Catherine] Galvin, who attributed death to homicidal stab wounds. Defensive wounds were also discovered on the fingers of the victim’s right hand. It was felt that the death would have occurred within ten minutes of the stabbing. While the exact time of death cannot be determined, Dr. Galvin estimates it to be around 2:00 a.m., but not prior to midnight. Her opinion was based upon Dr. Hazen’s report which was not in evidence.”

The court stated its conclusions as follows: “By virtue of the opinion of Detective Doyle that the victim was mugged and by the manner in which the victim was forcibly taken to the rear yard by the defendant and two others, the court finds beyond a reasonable doubt that he was forcibly taken there for the purpose of robbery and that such robbery was attempted. Because of the narrowness of the time frame, the distance involved, surrounding circumstances and the logical inferences to be drawn therefrom, we find that the defendant took part in the robbery or attempted robbery of the victim, and that the victim died as a result of the wounds received in said robbery or attempt. Therefore, we conclude beyond a reasonable doubt that the defendant is guilty of murder in that when acting either alone or with one or more persons, he did commit or attempt to commit robbery, and in the course of and in furtherance of said crime, or of flight therefrom, he or another participant caused the death of a person other than one of the participants, namely Nestor Rodriguez.”

The defendant contests the sufficiency of the evidence both as it relates to his alleged involvement in the underlying crime of robbery and as it relates to the alleged connection between the robbery and the murder. We consider these claims separately.

With respect to the underlying crime of robbery, there was a substantial conflict in the testimony about the appearance of the victim’s clothes when his body was found. Two police officers testified that their belief that the victim had been robbed was based in part upon the fact that the victim’s pants pocket had been torn. In fact, testimony by the medical examiner and an examination of the pants themselves conclusively established that the pockets of the victim’s pants had not been torn. The trial court’s memorandum of decision does not resolve this conflict in the testimony and fails to indicate the proven facts upon which the court relied to conclude that a robbery had been committed and that the defendant had participated in the robbery.

With respect to the felony murder itself, there was a substantial conflict in the testimony about whether the victim was killed “in the course of and in furtherance of [the crime of robbery] or of flight therefrom.” There was substantial uncertainty in the state’s evidence concerning the time of death. From Hazen’s examination of the body and Galvin’s testimony about the relationship between that examination and the probable time of death, the trial court might have found that the victim died about 2 a.m. If the robbery occurred around midnight, there would then have been a considerable temporal gap between the robbery and the murder. The state argues that the trial court might have closed this gap by finding that the victim had died considerably earlier, nearer to midnight, if the court had found credible the police officer’s testimony that the body was already cold at 2:20 a.m. when it was first discovéred. The trial court’s memorandum of decision contains no specific finding about the time of death.

In addition to uncertainty about the temporal proximity between the robbery of the victim and his murder, the record reveals uncertainty about the inferences to be drawn from the location of the victim’s body. The defendant challenges the sufficiency of the evidence to show that the killing was in furtherance of the robbery, or in flight therefrom, when the robbery apparently occurred in a back yard behind a pool hall and the murder apparently took place in the front of a neighboring house. There was no trail of blood to the body, and the medical testimony was that the victim would have lost consciousness within two minutes after having been stabbed and would have died within ten minutes at the outside. The trial court’s memorandum of decision contains no specific finding about where the victim was murdered or what the connection was between the robbery and the murder.

On this state of the record, we cannot determine whether the state has established, beyond a reasonable doubt, the defendant’s guilt of the crime of felony murder. For the proper disposition of this case, it is necessary for us to order a remand to the trial court for further articulation of the grounds on which it determined that the state had proved its case. See Practice Book § 3060D; State v. Lafferty, 189 Conn. 360, 363, 456 A.2d 272 (1983); Kaplan v. Kaplan, 185 Conn. 42, 46, 440 A.2d 252 (1981); State v. Ostroski, 184 Conn. 455, 460-61, 440 A.2d 166 (1981), cert. denied, 459 U.S. 878, 103 S. Ct. 173, 74 L. Ed. 2d 142 (1982). The trial court is directed to file a memorandum of decision answering the following questions and articulating the factual basis for its answers: (1) where and when did the robbery occur; (2) how was the defendant involved in the robbery; (3) where and when did the murder occur; (4) how was the murder connected with the robbery; and (5) how was the defendant involved in the murder?

If the defendant’s claim relating to the sufficiency of the evidence against him were to be resolved in his favor, the trial court would have erred in denying his motion for acquittal. Until that claim is resolved, therefore, it is pointless to consider the defendant’s other claims of error concerning the conduct of his trial.

The case is remanded to the trial court with direction to file a memorandum of decision articulating the basis upon which the court found the defendant guilty of the crime of felony murder.

       General Statutes § 53a-54c provides: “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.”

       Practice Book § 3060D provides: “Sec. 3060D. review by the supreme court
      “The supreme court may reverse or modify the decision of the trial court if it determines that the decision is clearly erroneous in view of the evidence and pleadings in the whole record.
      “If the supreme court deems it necessary to the proper disposition of the cause, it may remand the case for a further articulation of the basis of the trial court’s decision.
      “It is the responsibility of the appellant to provide an adequate record for review.”