author: Peters, C. J.

text:
    Gail A. Lavertue v. Mark Niman
    (12390)
    Peters, C. J., Healey, Shea, Dannehy and Santaniello, Js.
    Argued March 12
    decision released June 4, 1985

      Claudine Siegel, with whom was Kathryn L. Bert, for the appellant (defendant).

      George S. Szydlowski, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Sandra Henderson, for the appellee (state).
   Peters, C. J.

The sole issue on this appeal is whether an indigent defendant in a state-initiated paternity suit has a constitutional right to court-appointed counsel. At the behest of the state and with the state’s assistance, the plaintiff Gail A. Lavertue sued the defendant Mark Niman, pursuant to General Statutes § 46b-160, naming him the father of her child Sherry Ann Lavertue. Prior to trial, the defendant filed a financial affidavit reflecting his indigency and moved for the appointment of counsel. The trial court, Kremski, J., denied the motion. The defendant was tried to the court, Spear, J., found guilty and ordered to pay weekly child support until the child’s eighteenth birthday. He appeals from the judgment, claiming that the court erred in refusing to appoint counsel to represent him. We agree.

The events at trial provide the necessary background to this appeal. The plaintiff was represented, at state expense, by Attorney Robert Chase. On direct examination, the plaintiff testified that, when her child was conceived in November, 1979, she was having sexual relations only with the defendant and that he was the child’s father. She also testified that the state was contributing to the child’s support. ■

The defendant, appearing pro se, was able to do little to weaken or to contradict the plaintiff’s case. Counsel for the plaintiff successfully objected to the defendant’s effort to cross-examine the plaintiff about her sexual relations with other men and about the existence of other potential fathers. Although a blood grouping test had been authorized, its results were not introduced into evidence. The defendant belatedly sought judicial assistance to procure the presence of an absent witness, but was not permitted to delay the trial for that purpose. His attempt to testify in his own behalf was cut short by his mistaken attempt to resume questioning the plaintiff.

At the close of the evidence, the court found the defendant guilty and proceeded to a determination of the amount of child support to award. An employee of the state department of human resources testified that the state had incurred a total of $6777.81 in expenses, which included child support as well as attorney’s fees, costs and a blood test. The defendant testified that he was twenty-three years old, had completed two years of high school education, was unemployed and had no income. The court ordered the defendant to pay $5 a week child support until the child’s eighteenth birthday and $5 a week arrearage until the state’s past expenses had been fully reimbursed, all payments to be made directly to the state.

The defendant’s only claim on this appeal is that he has a right to court-appointed counsel under the due process clause of the fourteenth amendment to the United States constitution and under article first, § 10, of the Connecticut constitution. Because his claim relies upon a showing of state action and upon the unique configuration of paternity actions in this state, it is important at the outset to clarify the background of this litigation. See Little v. Streater, 452 U.S. 1, 9, 101 S. Ct. 2202, 68 L. Ed. 2d 627 (1981). We will then consider the test that determines whether a court is obligated to provide counsel to indigent defendants.

I

Whether state involvement in paternity actions is of sufficient significance to trigger constitutional rights to counsel depends upon whether the child whose paternity is in question is receiving public assistance. Absent public assistance, a paternity suit is simply a private action brought by the child’s mother against the putative father. When public assistance is at stake, however, the state plays a dominant role in the initiation and the prosecution of the paternity suit.

The state’s interest in a paternity action concerning a child on public assistance is manifest and enduring. See Little v. Streater, supra, 9. The mother of such a child is required, on pain of contempt, to identify the child’s father and, in the event he does not acknowledge paternity, to bring an action against him. General Statutes §§ 17-82b, 46b-160, 46b-169; Regs., Conn. State Agencies §§ 17-82e-4 through 17-82e-6. The state assists the plaintiff in finding an attorney and pays the plaintiff’s legal fees and costs. Regs., Conn. State Agencies §§ 17-82e-4, 17-82e-6. The attorney general is automatically a party to such a paternity action, and no such action can be settled without the approval of a state official. General Statutes §§ 46b-160, 46b-170. If the paternity action is successful and results in an award of child support, the moneys so awarded are paid directly to the state because the mother of a child on public assistance must assign her rights of support to the state. General Statutes § 17-82b. The attorney general is in fact the only party defending this appeal.

The significance of the state’s involvement in actions involving the paternity of children receiving public assistance is enhanced by the fact that all paternity proceedings have “ ‘quasi-criminal’ overtones.” Little v. Streater, supra, 10. A paternity action results in a finding of “guilt” or “innocence,” and nonpayment of support orders attendant to a finding of “guilt” may lead to contempt and imprisonment. General Statutes §§ 46b-171, 46b-215, 53-304. Nonetheless, the plaintiff in a paternity proceeding need only prove her case by a fair preponderance of the evidence. Terrasi v. Andrews, 3 Conn. Cir. Ct. 449, 453, 217 A.2d 75, cert. denied, 153 Conn. 729, 214 A.2d 130 (1965). Furthermore, she establishes a prima facie case by remaining constant in her accusation. In sum, the state has the capacity to insist on the initiation and prosecution of a paternity action in which a defendant is at considerable risk.

II

The test that governs the due process right to court-appointed counsel is whether the absence of counsel deprives an indigent defendant of “ ‘fundamental fairness.’ ” Lassiter v. Department of Social Services, 452 U.S. 18, 25, 101 S. Ct. 2153, 68 L. Ed. 2d 640, reh. denied, 453 U.S. 927, 102 S. Ct. 889, 69 L. Ed. 2d 1023 (1981). That test, in turn, involves an analysis of three separate factors: “the private interests at stake, the government’s interest, and the risk that the procedures used will lead to erroneous decisions.” Id., 27, citing Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). Once we identify the analytic components of this test, we must then determine what weight to attach to each of its elements, and whether any supervening presumptions tilt the balance in favor of or against a right to counsel. Lassiter v. Department of Social Services, supra, 27.

The private interests that are at stake in this litigation involve both the putative father and the child. See Little v. Streater, supra, 13. The putative father faces a possible loss of liberty if he is found “guilty” and subsequently fails to pay court ordered child support. General Statutes §§ 46b-171, 46b-215, 53-304. In addition, both father and child have substantial financial and property interests at stake. The father is liable for past, present and future child support. General Statutes § 46b-171. In later years the child may be liable for the support of its father; General Statutes § 53-304; and may eventually have claims upon the father’s estate. The child’s interests also extend to its health, which may depend upon an accurate family medical history. See Kennedy v. Wood, 439 N.E.2d 1367, 1370 (Ind. App. 1982).

In addition to these particularized private interests that militate in favor of procedural safeguards, we also recognize the more general interest that is implicated when what is “at issue is the creation of a parent-child relationship.” Little v. Streater, supra, 13. The family relationship is so significant as to be accorded constitutional protection. At stake for both parent and child are the rights to companionship, care and custody. Little v. Streater, supra, 13; Cappetta v. Cappetta, 196 Conn. 10, 14, 490 A.2d 996 (1985); McGaffin v. Roberts, 193 Conn. 393, 400-401, 479 A.2d 176 (1984), cert. denied, U.S. , 105 S. Ct. 1747, 84 L. Ed. 2d 813 (1985). Obviously, both the father and the child in a paternity proceeding have an interest in seeing that these rights are accurately adjudicated. The child’s interests in this regard are particularly strong. “Any determination that a particular individual is a child’s biological father may have profound sociological and psychological ramifications. ... It is in the child’s interest not only to have it adjudicated that some man is his or her father and thus liable for support, but to have some assurance that the correct person has been so identified.” (Emphasis in original.) Salas v. Cortez, 24 Cal. 3d 22, 33-34, 593 P.2d 226, 154 Cal. Rptr. 529, cert. denied, 444 U.S. 900, 100 S. Ct. 209, 62 L. Ed. 2d 136 (1979).

In contrast to these strong private interests, the state has two somewhat conflicting concerns. On the one hand, in its role as parens patriae, it must protect the welfare of the child and thus shares the child’s interest in accurately identifying the father and making that person responsible for its support. On the other hand, the state has a substantial economic stake in the adjudication of paternity. Since the child is being supported at state expense, the state’s interest in “finding] any man it can hold financially liable to reimburse it”; Kennedy v. Wood, supra, 1371; may undermine its interest in an accurate outcome. Furthermore, the state is understandably concerned that its expenses in a paternity proceeding be kept to a minimum. Nevertheless, “[w]e must conclude that the State’s monetary interest ‘is hardly significant enough to overcome private interests as important as those here.’ ” Little v. Streater, supra, 15-16.

In addition to the competing interests of the state and the private individuals, Lassiter identifies the risk of error as the third factor to be considered in assessing the need for counsel. In Little v. Streater, supra, 14, the United States Supreme Court relied on “the usual absence of witnesses, the self-interest coloring the testimony of the litigants, and the State’s onerous evidentiary rule and refusal to pay for blood grouping tests,” in support of its holding that there is a considerable risk of error in Connecticut paternity actions. Because of this risk, the court held that, in order to give indigent paternity defendants a “ ‘meaningful opportunity to be heard,’ ” it was necessary to provide blood tests at state expense. Id., 16, citing Boddie v. Connecticut, 401 U.S. 371, 377, 91 S. Ct. 780, 28 L. Ed. 2d 113 (1971). The state now seeks to turn Little on its head by arguing that access to blood test information is in and of itself sufficient to overcome the procedural obstacles that inhere in our paternity actions.

We are unpersuaded by the state’s argument. The use of scientific evidence itself may contribute to the risk of error because it increases the complexity of the litigation. The state’s provision of counsel for the mother is, in part, a recognition of this fact. See Salas v. Cortez, supra, 31. Moreover, the defendant still bears a heavy evidentiary burden and must face the state as an adversary. Both of these factors “skew . . . the outcome of the case.” Id.

In our assessment of the significance of the risk of error, the issue is “the extent to which the provision of a lawyer to indigent [defendants] would enhance the fairness and reliability of the paternity procedure . . . . ” Nordgren v. Mitchell, 716 F.2d 1335, 1337 (10th Cir. 1983). The role of an attorney in paternity proceedings is a multifaceted one. Counsel would alert the defendant of his right to have blood tests performed, advise him about the kinds of tests available and inform him of the procedures that must be followed to obtain accurate results. Counsel would also be able to challenge test results submitted by the state. An attorney would develop defenses independent of the blood test evidence, such as lack of access to the mother or the existence of another potential father. Id., 1338. An attorney would conduct discovery, counsel the defendant on the possibility of reaching a pretrial settlement, subpoena witnesses and conduct cross-examination. The record in this case discloses the likelihood that a pro se defendant’s own inartful questioning and failure to obtain witnesses will substantially impair the truth-finding function of the trial court.

In sum, analysis of the three Lassiter factors reveals that state-supported paternity proceedings manifestly involve significant private interests and a substantial risk of error. Taken alone, these factors clearly outweigh the state’s contrary interest in avoiding the public expense of state-financed counsel. What remains to be determined is the weight to be assigned the fact that the direct risks to which the defendant is put are primarily psychological and financial. In Lassiter v. Department of Social Services, supra, 27, the United States Supreme Court counseled that, where loss of personal freedom was not at stake, there was a presumption against court-appointed counsel. Although Connecticut paternity suits have been characterized as quasi-criminal, and although a person found “guilty” of being a father may, in a subsequent contempt action, be imprisoned for failure to pay child support, the fact remains that the threat of imprisonment is only indirectly implicated in the paternity suit itself. See, e.g., Nordgren v. Mitchell, supra, 1339; Kennedy v. Wood, supra, 1369; Wake County ex rel. Carrington v. Townes, 306 N.C. 333, 336-37, 293 S.E.2d 95 (1982), cert. denied, 459 U.S. 1113, 103 S. Ct. 745, 74 L. Ed. 2d 965 (1983); State v. James, 38 Wash. App. 264, 272, 686 P.2d 1097 (1984); but see Corra v. Coll, 305 Pa. Super. 179, 188, 451 A.2d 480 (1982).

Our appraisal of this mix of factors is governed by our interpretation of the requirements not only of the federal constitution but also of article first, § 10, of the Connecticut constitution. From that vantage point, taking account of the unique configuration of paternity actions in this state, we conclude that indigent defendants in state-supported paternity actions have a constitutional right, under both the United States and Connecticut constitutions, to court-appointed counsel at state expense. This holding is in accordance with the result reached in a number of other jurisdictions subsequent to Little and Lassiter. See Kennedy v. Wood, supra; State ex rel. Cody v. Toner, 8 Ohio St. 3d 22, 456 N.E.2d 813 (1983), cert. denied, 466 U.S. 938, 104 S. Ct. 1912, 80 L. Ed. 2d 461 (1984); Corra v. Coll, supra; but see State ex rel. Hamilton v. Snodgrass, 325 N.W.2d 740 (Iowa 1982); as well as with a number of decisions before those cases were handed down. See, e.g., Reynolds v. Kimmons, 569 P.2d 799 (Alaska 1977); Salas v. Cortez, supra; Artibee v. Cheboygan Circuit Judge, 397 Mich. 54, 243 N.W.2d 248 (1976); see generally Roberts & Ott, “The Right to Counsel in Paternity Proceedings,” 18 Clearinghouse Rev. 1170,1180 (1985). We recognize that some courts have preferred a case-by-case approach to the appointment of counsel. See Nordgren v. Mitchell, supra; Wake County ex rel. Carrington v. Townes, supra; State ex rel. Adult & Family Services Division v. Stoutt, 57 Or. App. 303, 644 P.2d 1132 (1982), cert. denied, 461 U.S. 928, 103 S. Ct. 2088, 77 L. Ed. 2d 299 (1983); State v. James, supra. We decline to follow such an approach, not only because of the unique evidentiary problems of our paternity proceedings, but because “[i]t is often difficult to assess the complexities which might arise in a given paternity trial before that trial is held; thus, a case-by-case approach would necessarily require an after-the-fact evaluation of the record to determine whether appointed counsel could have affected the result reached in a paternity proceeding.” Corra v. Coll, supra, 193 n.11.

There is error, the judgment of paternity is vacated and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       In its brief, the state challenged the defendant’s claim of indigency since the trial court had not made a specific finding that he was indigent. At oral argument, however, the state withdrew this challenge.

       Presumably, the test results were not offered because they did not “establish definite exclusion of the putative father,” and were therefore inadmissible as evidence. General Statutes § 46b-168.

       Section 1 of the fourteenth amendment to the United States constitution provides in relevant part: “nor shall any State deprive any person of life, liberty or property without due process of law . . . . ”
      Article first, § 10, of the Connecticut constitution provides: “All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.”

       We do not need to decide in this case whether state action is a requirement under the state constitution.

       The state’s involvement grows out of requirements imposed on it by the federal government. In order to receive federal funding for aid to families with dependent children (“AFDC”), the state must require AFDC applicants “to cooperate with the State (i) in establishing the paternity of a child born out of wedlock . . . and (ii) in obtaining support payments . . . unless . . . good cause [is shown] . ...” 42 U.S.C. § 602 (a) (26) (B). Cooperation includes identifying the parent, appearing as a witness and providing information on penalty of perjury. 45 C.F.R. § 232.12 (1984); see General Statutes § 17-82b. In addition, the state must establish a child support enforcement program under Title IV-D of the Social Security Act, 42 U.S.C. § 651 et seq. The federal government substantially reimburses the state for the costs incurred under this program, provided that the state undertakes to establish the paternity of and to obtain support for any child receiving AFDC. 42 U.S.C. §§ 654 (4), 655 (a) (1); see Regs., Conn. State Agencies §§ 17-82e-l through 17-83e-12.

       We note that, “ ‘[t]he declarations or accusations of the mother in such cases have never been considered by our courts as independent facts showing the fatherhood of the child, but as corroborative only of her testimony in court to the same effect.’ ” State v. Segerberg, 131 Conn. 546, 550, 41 A.2d 101 (1945), quoting Benton v. Starr, 58 Conn. 285, 288, 20 A. 450 (1890).
      Older Connecticut cases have indicated that, once a plaintiff establishes a prima facie case, the burden then shifts to the defendant to prove himself innocent by evidence other than his own; Mosher v. Bennett, 108 Conn. 671, 674, 144 A. 297 (1929); so that even a trier of fact who finds the defendant more credible than the plaintiff must hold the defendant guilty. See Little v. Streater, 452 U.S. 1, 10-12 and n.8, 101 S. Ct. 2202, 68 L. Ed. 2d 627 (1981). It is doubtful whether these cases accurately reflect the relevant law today.

       One court has noted that an accurate outcome lessens “the state’s future administrative burdens . . . since a correct determination of paternity increases the chance that the adjudged parent will comply with support obligations.” Corra v. Coll, 305 Pa. Super. 179, 193, 451 A.2d 480 (1982).

       The test results may not be probative if performed improperly. For example, tests performed on infants under six months old do not produce accurate results. Samples must be obtained under sterile conditions and analyzed within a short period of time. See generally Roberts, “Establishing a Family: Blood Tests and the Paternity Determination Process,” 18 Clearinghouse Rev. 1290, 1292 (1985).

       The most recently developed tests are designed not merely to exclude the possibility that a certain man may be the father, but to establish to a degree of certainty that he is the father. The proper credit to award these procedures is still a matter of dispute. Mills v. Habluetzel, 456 U.S. 91, 98 n.4, 102 S. Ct. 1549, 71 L. Ed. 2d 770 (1982).


source: Caselaw Access Project

license: Public Domain

text:
    Caryn DeMace v. Arthur Whittaker
    (12434)
    Peters, C. J., Healey, Shea, Dannehy and Santaniello, Js.

      Argued March 12
    decision released June 4, 1985

      Claudine Siegel, with whom were Julia Bradley and, on the brief, Robert Lessler, for the appellant (defendant).

      Joseph X. Dumond, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, Seymour P. Dunn and Rochelle Homelson, assistant attorneys general, for the appellee (state).
   Peters, C. J.

The principal issue on this appeal, like that decided today in Lavertue v. Niman, 196 Conn. 403, 493 A.2d 313 (1985), is whether indigent defendants in state-sponsored paternity proceedings have a constitutional right to court-appointed counsel. At the insistence of the state, and with the state’s aid, the plaintiff Caryn DeMace brought suit against the defendant Arthur Whittaker, naming him the father of her child Cami M. DeMace. The defendant denied his paternity but, after a trial to the court without the assistance of counsel, was found guilty. The court ordered him to pay $25 per week child support until the child’s eighteenth birthday and $5 per week until $18,489.80 in arrearage, lying-in expenses and costs had been repaid to the state. The defendant appeals this judgment. Because the plaintiff and her child were recipients of public assistance when this action commenced, the attorney general is a party to the proceedings; see General Statutes § 46b-160; and he is the only party defending this appeal.

The procedural background relevant to this appeal is as follows. From May, 1981, through November, 1983, the defendant retained a private attorney to represent him in this action. In May, 1981, he filed a motion for blood grouping tests pursuant to General Statutes § 46b-168. The trial court, Nigro, J., granted the motion and ordered the defendant to pay the cost of the tests. The defendant raised no claim of indigency and did not object when ordered to pay the cost of the initial blood grouping tests. Approximately a month before the start of trial, the court granted defense counsel’s motion to withdraw due to irreconcilable differences with his client. Trial commenced on December 13, 1983. On that day, the defendant, appearing pro sefor the first time, moved for the appointment of counsel, claiming indigency. He filed an accompanying financial affidavit which reflected a net weekly income of $150 and weekly expenses of $155. The defendant also moved the court to order supplemental blood grouping tests at Hartford Hospital and to order the state to pay the cost of the tests. The trial court, Maiocco, J., denied the motions concerning the blood grouping tests but took no action on the motion for the appointment of counsel, and made no finding as to indigency.

The events at the trial itself can be briefly summarized. The plaintiff testified that the defendant was the father of her child. She stated that she and the defendant had lived together following her daughter’s birth and that the defendant had contributed small sums of money for the child’s support. On cross-examination, the defendant questioned the plaintiff briefly concerning her relationships with other men, but elicited little information. In addition to herself, the plaintiff presented two witnesses. An investigator with the department of human resources testified that the plaintiff and her daughter had received over $18,000 in assistance from the state and that the defendant was employed and earning an average net weekly salary of $137. A neighbor of the plaintiff then testified that the defendant had told her he was the child’s father. The defendant did not testify on his own behalf. The only witness he called was his sister, who stated that she had twice heard the plaintiff say that the defendant was not the father of her child. The court found the defendant guilty and examined him concerning his financial situation before making an award of child support.

The defendant raises four claims of error on appeal. He asserts that the trial court erred: (1) in failing to appoint counsel to represent him; (2) in denying his motion for supplemental blood grouping tests; (3) in failing to strike inadmissible test results from the court file; and (4) in hearing the state’s evidence on expenses before making a finding as to the defendant’s guilt or innocence.

In support of his first claim of error, the defendant argues that he was constitutionally entitled to court-appointed counsel. We have addressed that argument fully in Lavertue v. Niman, supra. That decision, however, is not dispositive of this appeal because a paternity defendant’s right to court-appointed counsel depends upon the defendant’s indigency. The trial court in this case made no finding as to indigency and we cannot presume indigency from the record before us.

It is clear that the defendant was, at one point, able to afford private counsel, and that he was employed. On the other hand, his financial affidavit reflects weekly expenses in excess of weekly net income. This record might have permitted the trial court to conclude either that the defendant was or was not indigent. If the defendant had not appeared pro se, we might preclude him from raising the issue of indigency on appeal because he did not press at trial for a ruling on his motion for the appointment of counsel. Without counsel, however, the defendant cannot be faulted for having failed to recognize that the filing of his motion might not be brought to the court’s attention without further action on his part. We therefore remand the case to the trial court for a resolution of the question of indigency which will, in turn, be dispositive on the issue of whether the defendant is entitled to a new trial. See Lavertue v. Niman, supra.

The defendant’s remaining three claims of error do not depend upon a determination of indigency for their resolution. We address these claims in light of the possibility that the defendant, if he is found not to have been indigent, will not be entitled on that ground to a new trial.

The defendant argues that the court erred in denying his motion for blood tests at Hartford Hospital. He maintains that the additional tests were necessary because the original tests, which were performed at Stamford Hospital, were insufficient to exclude his paternity. The state argues that the court was within its discretion in denying the motion because allowing further testing would have necessitated a continuance of the trial. We conclude that, given the evidence before it, the court’s ruling was not in error.

In his brief, the defendant presents a detailed scientific explanation in support of his claim for additional blood tests. He explains that Hartford Hospital investigates paternity using seven tests while Stamford Hospital uses only four tests. The more extensive testing performed at Hartford leads to more accurate results. If the defendant is not the father, there is a 91 percent chance that the Hartford tests would reveal this fact, while there is only a 54.72 percent chance that the Stamford tests would do so. See Little v. Streater, 452 U.S. 1, 6-8, 101 S. Ct. 2202, 68 L. Ed. 2d 627 (1981).

Unfortunately, the defendant was unable to articulate this argument in response to the trial court’s inquiry about the need for additional tests, and as a result the court was not made fully aware of the reíative reliability of each test. We cannot conclude, therefore, that the court erred in basing its decision to deny the defendant’s motion on the fact that further testing would delay the trial. The defendant was, in effect, asking for a continuance. “We will find error in the grant or denial of a motion for continuance only if a clear abuse of the trial court’s discretion is shown. Ridgeway v. Ridgeway, 180 Conn. 533, 538, 429 A.2d 801 (1980).” Chaplin v. Balkus, 189 Conn. 445, 449, 456 A.2d 286 (1983). The case had been pending for over two years. The Stamford blood tests were performed at the beginning of this period and the defendant, who was assisted by counsel until a month before trial, could have moved for additional tests at any time.

The defendant’s third claim is that it was error for the trial court not to strike inadmissible blood grouping test results from the court file. The Stamford results were inadmissible because they did not exclude the defendant as a possible father. See General Statutes § 46b-168. The state attached the results to a document entitled “Compliance with Motion for Blood Grouping Test,” which was submitted to the court in November, 1981. The defendant, at that time represented by counsel, made a motion to strike the test results from the file. On the trial court docket sheet, the motion was marked “off will reclaim” and the record reflects no attempt by the defendant to reclaim the motion. The test results were never admitted into evidence and the defendant has not demonstrated either that the trial judge was aware of the results in the file or that he was improperly influenced by them. Under these circumstances, the defendant’s claim of error must fail.

The defendant’s final claim is that the trial court erred in permitting the state, prior to a judicial determination of guilt, to introduce evidence that it had incurred over $18,000 in child support, lying-in expenses and costs. The defendant argues that this procedure violated General Statutes § 46b-171, which provides: “If the defendant is found guilty, the court shall order him to stand charged with the support and maintenance of such child . . . and the court shall ascertain the expense of lying-in and of support and maintenance of the child until the time of rendering judgment . . . .” It is clear that a defendant can only be ordered to pay support after he is found guilty. See State v. Wolfe, 156 Conn. 199, 203, 239 A.2d 509 (1968). Since the defendant failed to argue at trial that the statutory sequence was mandatory, and did not then object to the state’s arguably premature presentation of evidence about its expenses, his claim cannot prevail. Although the better procedure would have been for the trial court to hear evidence of expenses following a determination of guilt, the defendant has not met his burden of proving that the court’s failure to do so was harmful error. See State v. Conroy, 194 Conn. 623, 627, 484 A.2d 448 (1984); State v. Januszewski, 182 Conn. 142, 174, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981).

The case is remanded for further proceedings in accordance with this opinion. If the trial court finds that the defendant was indigent, the judgment must be set aside and a new trial ordered. If the trial court finds that the defendant was not indigent, the judgment must stand unless the defendant successfully appeals the finding of nonindigency.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 46b-168. (Formerly Sec. 52-184). BLOOD TESTS WHEN PATERNITY IS IN DISPUTE. ASSESSMENT OF COSTS. In any proceeding in which a question of paternity is an issue, the court, on motion of any party, may order the mother, her child and the putative father or the husband of the mother to submit to one or more blood grouping tests, to be made by a qualified physician or other qualified person, designated by the court, to determine whether or not the putative father or the husband of the mother can be excluded as being the father of the child. The results of such tests shall be admissible in evidence only in cases where such results establish definite exclusion of the putative father or such husband as such father. The costs of making such tests shall be chargeable against the party making the motion, provided if the court finds that such party is indigent and unable to pay such costs, such costs shall be paid by the state. If the costs of making such tests are paid by the state and the party making the motion is subsequently adjudicated to be the father of the child, such party shall be liable to the state for the amount of such costs.”

        Little v. Streater, 452 U.S. 1, 101 S. Ct. 2202, 68 L. Ed. 2d 627 (1981), was decided on June 1, 1981. The defendant made his motion for blood grouping tests on May 27, 1981. The trial court issued its order for the defendant to pay the cost of the tests on June 18,1981, by which time, based on the holding in Little, the defendant could have claimed indigency and asked the state to pay for the tests. Public Acts 1981, No. 81-433, §§ 1, 3, which amended General Statutes § 46b-168 to reflect the holding in Little, took effect on July 1, 1981.

       We are sympathetic to the defendant’s position that it is difficult for a pro se litigant to make such a complex scientific argument, and that is one reason why the defendant, if he is indigent, will have an opportunity to make this argument with the assistance of counsel. See Lavertue v. Niman, 196 Conn. 403, 493 A.2d 313 (1985).


author: Santaniello, J.

text:
    State of Connecticut v. Daniel Castro
    (10158)
    Healey, Parskey, Shea, Dannehy and Santaniello, Js.
    Argued December 6, 1984
    decision released June 4, 1985

      Erskine D. McIntosh, assistant public defender, with whom, on the brief, were Michael R. Sheldon, Joette Katz and TemmyA. Pieszak, for the appellant (defendant).

      Michael Dearington, chief assistant state’s attorney, with whom, on the brief, were Arnold Markle, state’s attorney, Julia D. Dewey, assistant state’s attorney, and Jon Bain, legal intern, for the appellee (state).
   Santaniello, J.

The defendant was convicted of felony murder in violation of General Statutes § 53a-54c. He appeals, claiming that the trial court erred (1) in restricting his cross-examination of a witness in violation of his constitutional right to confrontation, and (2) in failing to instruct the jury on lesser included homicides pursuant to General Statutes § 53a-45 (c).

The jury could reasonably have found the following facts. The incident which led to the defendant’s arrest took place on October 19,1978. The defendant left his home at approximately 10:30 a.m., drove to a package store, and purchased a pint bottle of vodka, which he consumed in his car during the course of the morning. Prior to 1 p.m., the defendant purchased a second half pint of vodka, which he partly consumed while sitting in the car by himself. Around 1 p.m. he met his friend, Hector Soto, whom he invited for a drive. Before entering the car, Soto walked to the side of a building and picked up his shotgun. The defendant also had a sawed-off shotgun under the driver’s seat of his car, where it had been for about ten months. The defendant told Soto that he had been stopped earlier that morning by a police officer and was asked for some identification while he was standing at the corner of Grand Avenue and Lloyd Street in New Haven. He claimed to be partially drunk at that time. The police had confiscated his marijuana which they found close to where the defendant was standing. The defendant had denied ownership of the marijuana and was not arrested for possession. At trial, the defendant testified that he “dealt in drugs,” and that he had others selling marijuana for him. As a result of the loss of the marijuana, the defendant told Soto that “he needed some money . . . [bjecause they took his reefer.” The defendant then shared the remaining vodka with Soto and smoked some marijuana while they drove around for approximately twenty-five minutes. A third half pint of vodka was purchased around 4 p.m., which they shared.

At 5 p.m. the defendant and Soto drove by the inter-, section of Grand Avenue and Lloyd Street. This intersection was frequented by drug dealers. The defendant stopped the car, got out and walked up to a group of six or seven men and announced: “I need money; give up the money.” The defendant repeated in Spanish to the victim, Lucas Rivera, who was one of the group, that “it was a robbery,” and pointed his sawed-off shotgun at his head. When the victim pushed the gun away, the defendant again aimed the gun at the head of the victim and pulled the trigger, fatally wounding him. The defendant and Soto then got into the car and fled the scene.

Immediately after the killing, the defendant traded his car and some furniture for another car and left New Haven, driving to Buffalo, New York. He was accompanied by Soto. The defendant spent six days in Buffalo, where he sold the murder weapon. Five days after his return to New Haven the defendant was arrested. After being informed of his Miranda rights, he confessed to the killing.

The defendant was indicted by a grand jury for felony murder, General Statutes § 53a-54c. The evidence at trial showed that during the course of the day the defendant had consumed a large amount of alcohol, and had taken an acid pill, snorted cocaine, and smoked eight or nine marijuana cigarettes. At least one witness testified that the defendant was unsteady on his feet, had slurred speech, and appeared to be feeling the effects of the combination of alcohol and drugs. The defendant was convicted as charged by a jury of twelve and sentenced to a term of ten years to life. After his motions for judgment of acquittal and for a new trial were denied by the court, he filed this appeal.

I

The defendant’s first claim of error is that the trial court, by limiting the scope of cross-examination of a state’s witness, violated his sixth amendment right of confrontation. The defendant attempted to question Frank Santiago, a witness to the killing, concerning alleged threatening behavior against Santiago by Hector Soto. After the murder, Soto had been seen on numerous occasions driving by Santiago’s house, and at one point he approached Santiago in his car. It is the defendant’s contention that “had [he] had the opportunity Pie] could have established that Mr. Santiago felt that this threatening was orchestrated by the defendant, thereby developing a prejudice and a bias against the defendant.”

“The general rule is that restrictions on the scope of cross-examination are within the sound discretion of the trial judge . . . but this discretion comes into play only after the defendant has been permitted cross-examination sufficient to satisfy the sixth amendment.” (Citations omitted.) State v. Gaynor, 182 Conn. 501, 508, 438 A.2d 749 (1980); see State v. Thompson, 191 Conn. 146, 148, 463 A.2d 611 (1983). We must therefore conduct a two-step analysis, determining first whether the cross-examination of Santiago permitted to defense counsel comported with sixth amendment standards; see Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); and second whether the trial court abused its discretion in restricting the scope of that cross-examination. State v. Gaynor, supra, 510.

“The constitutional standard is met when defense counsel is ‘permitted to expose to the jury the facts from which the jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.’ Davis v. Alaska, supra, 318; United States v. Vasilios, [598 F.2d 387, 389 (5th Cir. 1979)].” State v. Gaynor, supra, 509. In this case the defendant clearly had sufficient opportunity to cross-examine Santiago fully and to attempt to discredit him before the jury. The trial court permitted extensive cross-examination of Santiago concerning the shooting incident, and also allowed the defendant to pursue a line of questioning in an attempt to show that Santiago had made prior inconsistent statements before the grand jury. The only aspect of the cross-examination restricted by the trial court involved the alleged threats against Santiago by Soto, which the court found too speculative to put before the jury. Under these circumstances, we cannot say the defendant’s sixth amendment right to confront Santiago was abrogated.

The remaining question is whether the trial court abused its discretion in refusing to allow Santiago to be questioned concerning the alleged threats. Although defense counsel had put forward several offers of proof concerning the alleged threatening behavior of Soto toward Santiago, the trial court rejected the defendant’s theory as speculative, and beyond the scope of direct examination. The defendant is claiming that because Santiago’s testimony was crucial to the state’s case, the jury should have been exposed to any evidence which tended to show Santiago’s bias.

“ ‘To establish an abuse of discretion, [the defendant] must show that the restrictions imposed upon [the] cross-examination were clearly prejudicial.’ United States v. Elliott, 571 F.2d 880, 909 (5th Cir. 1978); Gordon v. United States, 438 F.2d 858, 865 (5th Cir. 1971).” State v. Gaynor, supra, 510; see State v. Shindell, 195 Conn. 128, 141, 486 A.2d 637 (1985). Once it is established that the trial court’s ruling on the scope of cross-examination is not constitutionally defective, this court will apply “[e]very reasonable presumption ... in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.” State v. Briggs, 179 Conn. 328, 333, 426 A.2d 298 (1979), cert. denied, 447 U.S. 912, 100 S. Ct. 3000, 64 L. Ed. 2d 862 (1980).

The facts as established at trial do not support the defendant’s claim of prejudice, since the testimony of Santiago was cumulative to the testimony of several other witnesses, including the defendant. In the most substantive portion of Santiago’s testimony he identified the defendant and the victim, and detailed the demand for money and the subsequent shooting. Both Jose Ramos, a defense witness, and Hector Soto identified the defendant and both further testified that the defendant killed Lucas Rivera, giving detailed accounts of the use of the murder weapon and of the defendant’s demeanor and possible intoxication. They further corroborated the hold-up language used by the defendant. The defendant also testified at great length regarding the incident and admitted that he killed Lucas Rivera. This testimony replicated that given by Santiago. The defendant was not, therefore, prejudiced by the trial court’s refusal to allow cross-examination on the claimed threats of Soto toward Santiago.

II

At trial, the defendant made a timely request that the court charge the jury on lesser homicides, including manslaughter, pursuant to General Statutes § 53a-45 (c). The trial court denied the request. Following his conviction the defendant moved for a new trial, basing his motion in part on the court’s refusal to give the instruction. The defendant’s second claim of error is from the denial of that motion.

General Statutes § 53a-45 (c) provides that “[t]he court or jury before which any person indicted for murder ... is tried may find him guilty of homicide in a lesser degree than that charged.” The application of this statute to murder trials is governed by the principles set down by this court in State v. Whistnant, 179 Conn. 576, 427 A.2d 414 (1980). In Whistnant we held that “[a] defendant is entitled to an instruction on a lesser offense . . . only if, the following conditions are met: (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” State v. Whistnant, supra, 588. There is no dispute in this case that the first condition of Whistnant was satisfied. The defendant’s claim of error focuses on the second Whistnant requirement, and therefore indirectly on the third and fourth requirements, that the offenses contained in the jury instructions be lesser included offenses of the crime charged.

The Whistnant test was specifically made applicable to the crime of murder, and the lesser included manslaughter offenses in State v. Rodriguez, 180 Conn. 382, 407-408, 429 A.2d 919 (1980). “For purposes of the second condition of Whistnant ... an offense that would be a lesser included offense but for its requirement of a less culpable state of mind than that required for the greater, will be deemed a lesser included offense.” State v. Rodriguez, supra, 407. Under Rodriguez, a defendant is entitled to have the jury-charged on any lesser included offenses of murder which meet the three additional requirements of Whistnant.

“ ‘The test for determining whether one violation is a lesser included offense in another violation is whether it is possible to commit the greater offense . . . without having first committed the lesser. . . . [T]o require an instruction on a lesser included offense, the lesser offense must not require any element which is not needed to commit the greater offense . . . . ’ [Citations omitted.]” State v. Troynack, 174 Conn. 89, 97, 384 A.2d 326 (1977). In the present case the defendant requested that the jury be charged on the lesser included offenses of first and second degree manslaughter. The defendant has conceded, as he must, that these offenses clearly do not meet the second condition of Whistnant.

In both lesser degrees of manslaughter the state must prove that the defendant possessed a culpable state of mind. Manslaughter in the first degree requires a showing that the defendant had the “intent to cause serious physical injury.” General Statutes § 53a-55. Manslaughter in the second degree requires proof that a killing was committed “recklessly.” General Statutes § 53a-56. In contrast, the felony murder statute contains no such mens rea element. State v. Valeriano, 191 Conn. 659, 662, 468 A.2d 936 (1983).

In order to obtain a conviction for felony murder the state must prove, beyond a reasonable doubt, all the elements of the statutorily designated underlying felony, and in addition, that a death was caused in the course of and in furtherance of that felony. General Statutes § 54a-54c. There is no requirement that the state prove an intent to cause death. Since both first and second degree manslaughter require the showing of a culpable state of mind, manslaughter is not a lesser included offense of felony murder. State v. MacFarlane, 188 Conn. 542, 547-49, 450 A.2d 374 (1982).

Although the defendant concedes that the Whistnant test generally controls an accused’s right to have the jury charged on lesser included offenses he argues that it should not be applied to the crime of felony murder. He claims that to do so would derogate legislative intent and violate numerous constitutional principles. This court analyzed and rejected a similar claim in State v. MacFarlane, supra, wherein we stated: “The constitutionality of instructing on lesser included offenses is grounded on the premise that where one or more offenses are lesser than and included within the crime charged, notice of the crime charged includes notice of all lesser included offenses. State v. Martin, 187 Conn. 216, 219, 445 A.2d 585 (1982); State v. Rodriguez, supra, 402, 405; see State v. Maselli, 182 Conn. 66, 71, 437 A.2d 836 (1980), cert. denied, 449 U.S. 1083, 101 S. Ct. 868, 66 L. Ed. 2d 807 (1981). This notice permits each party to prepare a case properly, each cognizant of its burden of proof. When the second condition for a lesser included offense instruction is not met, we cannot presume that the state has had sufficient opportunity to prove each element of the lesser offense beyond a reasonable doubt.” State v. MacFarlane, supra, 548-49. We therefore decline the defendant’s suggestion that we remove felony murder from the scope of the Whistnant rule.

There is no error.

In this opinion the other judges concurred.

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

       A third claim of error concerning ex parte communications between the trial judge and the jury foreman was withdrawn prior to oral argument.


text:
    State of Connecticut v. Booker T. Torrence
    (12537)
    Peters, C. J., Healey, Shea, Santaniello and Callahan, Js.
    After his conviction of the crimes of robbery in the first degree, possession of a sawed-off shotgun, assault in the third degree and kidnapping in the second degree had been affirmed by the Appellate Court, the defendant, on the granting of certification, appealed to this court. Because, as the Appellate Court held, it was not reasonably possible that the jury was misled by the trial court’s erroneous references to superseded common law definitions of insanity in its instructions on the defendant’s insanity defense, the Appellate Court’s judgment was affirmed.
    Scope of review by this court of Appellate Court decisions, discussed.
    Scope of review of claim made under State v. Evans (165 Conn. 61), discussed.
    Argued April 4
    decision released June 11, 1985

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

      JohnM. Massameno, assistant state’s attorney, with whom were John T. Redway, state’s attorney, and Katherine J. Lambert, for the appellee (state).
   Peters, C. J.

This is an appeal, after certification, from a judgment of the Appellate Court affirming a conviction despite an inaccurate jury instruction on the statutory defense of insanity. In the trial court, the defendant, Booker T. Torrence, was convicted of three counts of robbery in the first degree in violation of General Statutes § 53a-134, one count of possession of a sawed-off shotgun in violation of General Statutes § 53-211, one count of assault in the third degree in violation of General Statutes § 53-61, and one count of kidnapping in the second degree in violation of General Statutes § 53a-94. In his appeal to the Appellate Court, the defendant raised three claims of error, none of which the Appellate Court found persuasive. We granted certification to review the judgment of the Appellate Court that the trial court’s instruction on insanity, although erroneous, was not so misleading as to require a reversal of the defendant’s conviction. We affirm the judgment of the Appellate Court.

The decision of the Appellate Court fully describes the underlying facts. State v. Torrence, 1 Conn. App. 697, 699-700, 476 A.2d 598 (1984). The defendant was accused of participating in an armed robbery of a liquor store and of assaulting and robbing the owner of a house in which he subsequently hid. To the various charges brought against him, the defendant principally interposed the defense of insanity under General Statutes § 53a-13. At trial, there was conflicting expert evidence about the defendant’s mental health and his capacity to conform his conduct to the requirements of the law. On the issue of insanity, the trial court instructed the jury not only on the statutory definition of insanity contained in § 53a-13 but also referred to superseded common law definitions of insanity derived from the M’Naghten test; M’Naghten’s Case, 8 Eng. Rep. 718, 722 (1843); and the irresistible impulse test. The defendant did not except to these instructions when they were given.

The Appellate Court determined that the trial court’s instructions on insanity were properly reviewable, despite the absence of a timely objection at trial. That court held that the question of the propriety of the trial court’s commingling of statutory and common law definitions of insanity raised an issue of constitutional dimension permitting review under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). State v. Torrence, supra, 702-703.

On the merits, the Appellate Court held that the charge given by the trial court was in error. Relying upon our decisions in State v. Jones, 193 Conn. 70, 475 A.2d 1087 (1984), State v. McCall, 187 Conn. 73, 444 A.2d 896 (1982), and State v. Toste, 178 Conn. 626, 424 A.2d 293 (1979), the Appellate Court decided that the trial court should not have injected into its charge on mental capacity elements of the M’Naghten and irresistible impulse tests, when those tests have been abolished by the governing statute. State v. Torrence, supra, 703. The court went on to conclude, however, that the trial court had not committed reversible error because, in view of the factual posture of the case, it was not reasonably possible that the jury had been misled. Id., 705-707.

The defendant’s request to this court for certification raised a single question: “In a criminal case in which the Defendant’s sanity was the only contested issue, was the trial court’s erroneous inclusion of legislatively abandoned common law definitions of insanity in its charge on the issue harmless beyond a reasonable doubt?” We must determine whether the Appellate Court erred in its resolution of this question.

I

Before we address this question on the merits, it is important to comment briefly on the procedural posture of this case, because it represents our first appeal from the Appellate Court. In such an appeal, the focus of our review is not the actions of the trial court, but the actions of the Appellate Court. We do not hear the appeal de novo. The only questions that we need consider are those squarely raised by the petition for certification, and we will ordinarily consider these issues in the form in which they have been framed in the Appellate Court. See Practice Book § 3154; cf. ABA Commission on Standards of Judicial Administration, Standards Relating to Appellate Courts (approved draft 1977) § 3.14 and commentary.

These observations necessarily have implications for our review of the question presented in this case. We decline the invitation of the state to consider whether improprieties in a charge on insanity are reviewable under State v. Evans, because the state so conceded in its brief to the Appellate Court, the Appellate Court so held, and the state has not filed a preliminary statement of issues in this court to revive this issue. See Practice Book § 3012 (a). We likewise need not review the Appellate Court’s determination that the charge as given was incorrect, because of the state’s failure to raise this issue in a preliminary statement of issues. We address that issue only insofar as it is inescapably intertwined with the issue that is properly before us, the question of the harmfulness of the trial court’s error.

II

Our analysis of the merits of the defendant’s claim must begin with a discussion of the scope of the review afforded a claim made under State v. Evans. Once it has been established that the record adequately supports a claim that a defendant has clearly been deprived of a fundamental constitutional right and a fair trial; State v. Evans, supra, 70; the merits of the claim must be determined. Relying on our observation in State v. Kurvin, 186 Conn. 555, 564-65, 442 A.2d 1327 (1982), that “[a] claimed constitutional error, raised for the first time on appeal, will be examined, if at all, not to ascertain whether the ruling or instruction was undesirable, erroneous, or even universally condemned but rather whether when reviewed in the context of the entire trial it violated some right guaranteed to the defendant by the fourteenth amendment to the constitution of the United States; Cupp v. Naughten, 414 U.S. 141, 146, 94 S. Ct. 396, 38 L. Ed. 2d 368 (1973); or article first, § 8 of the constitution of Connecticut,” the state contends that review of an Evans claim is narrower than that given a properly preserved fundamental constitutional claim. The state argues that the defendant’s claim of error does not survive this limited review.

The state’s argument mischaracterizes Evans review. Although only a very limited class of claims may be raised under Evans; see, e.g., State v. Conroy, 194 Conn. 623, 627 n.5, 484 A.2d 448 (1984) (inadequate record); State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982) (no fundamental constitutional claim); resolution of those claims is governed by general rules of appellate review. Since an Evans claim by definition alleges a fundamental constitutional error, only certain rules are called into play and they are applied in the rarified context of such an allegation. There is, however, no separate set of substantive standards that produces lowered scrutiny of unpreserved claims of fundamental constitutional deprivation. When, as here, a jury instruction is challenged as not merely erroneous but as constitutionally deficient in a fundamental respect, the challenge can succeed only if it is reasonably possible that the jury was misled by the instruction into misunderstanding an issue that has fundamental constitutional significance. See State v. Smith, 194 Conn. 213, 219-20, 479 A.2d 814 (1984); State v. Kurvin, supra, 558, 565, 569.

The defendant claims error in the instruction on the definition of insanity. The issue to be determined is therefore whether it is reasonably possible that the instruction undermined the jury’s understanding of the statutory definition of insanity and prevented it from properly deciding that the defendant was sane at the time he committed the charged offenses. As with any challenge to a portion of a jury instruction, this analysis must be performed with reference to the instruction as a whole. “A charge to the jury is not to be 'critically dissected’ nor are individual instructions to be judged in 'artificial isolation’ from the overall charge. State v. Reed, 174 Conn. 287, 305, 386 A.2d 243 (1978).” State v. Derrico, 181 Conn. 151, 171, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980).

The overall charge on the definition of insanity was as follows. First, the trial court read the statutory definition verbatim: “In any prosecution for an offense, it shall be the [sic] defense that the defendant, at the time of the proscribed conduct, as a result of mental disease or defect lacked substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law. As used in this section, the terms mental disease or defect do not include an abnormality manifested only by a [sic] repeated criminal or otherwise anti-social conduct.” The court repeated the full statutory definition a second time. After explaining to the jury how to relate the medical testimony on insanity to this definition, the court then gave the instruction at issue: “The definition of insanity, or lack of capacity, would include a mind which is either so naturally weak or so impaired by disease or otherwise as to make its possessor incapable of distinguishing right from wrong. It would not include a mind which, while weak or incapable in some measure, is still sound enough to make an essential choice in the course of conduct.” The court added: “A man of merely dull or diminished intellect would not necessarily be irresponsible within the meaning of the law.” The court returned immediately, however, to the language of the statute in its concluding remarks: “The law stresses that the defendant must lack substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law. Substantial is defined as being considerable or large, not minor or trivial.”

As the Appellate Court correctly held, the challenged portion of the charge erroneously injected elements of superseded common law doctrine into the definition of insanity. See State v. Jones, supra, 88; State v. McCall, supra, 86; State v. Toste, supra, 632. The references to incapacity to distinguish right from wrong and to being incapable to some degree, yet legally responsible, do not conform to the statutory definition that one who lacks substantial cognitive or volitional capacity is legally insane. These references therefore should not have been included in the charge.

We also agree with the Appellate Court, however, that the error of their inclusion was not harmful. Unlike the instruction in Toste, the erroneous language was used only once and was not repeated. In contrast to McCall and Jones, where the initial charge contained but a single rendition of the statutory definition, the instant charge repeated the exact words of § 53a-13 twice. Moreover, the trial court’s concluding instruction that “[t]he law stresses that the defendant must lack substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law” immediately refocused the jury’s attention on the key concept that sets the statutory definition apart from common law doctrine and, in effect, acted as a curative instruction. It is also relevant that while the erroneous remarks referred in part to the ability to distinguish right from wrong, the defendant presented expert testimony only on his lack of substantial capacity to conform his conduct to the requirements of the law. A faulty definition of cognitive insanity cannot prejudice a defendant who claims volitional insanity. Finally, the harmful impact of the initial instructions in Toste and Jones was indicated by the requests by both juries during deliberation for additional guidance on the meaning of insanity. See State v. Jones, supra, 85-86. Here, however, the jury’s silence suggests that the erroneous portion of the instruction did not create confusion or distract the jury from the correct standard. In sum, our careful examination of the charge as a whole reveals that it is not reasonably possible that the jury was misled by the trial court’s mistaken reference to common law concepts.

The judgment of the Appellate Court is affirmed.

In this opinion the other judges concurred.

       The defendant was also convicted of refusing to comply with police fingerprinting and identification procedures in violation of General Statutes §§ 29-11, 29-12 and 29-17. Judgment was suspended on this portion of the verdict.

       At the time the charged offenses were committed, General Statutes § 53a-13 provided: “INSANITY AS DEFENSE. In any prosecution for an offense, it shall be a defense that the defendant, at the time of the proscribed conduct, as a result of mental disease or defect lacked substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law. As used in this section, the terms mental disease or defect do not include an abnormality manifested only by repeated criminal or otherwise anti-social conduct.”
      General Statutes § 53a-12 provides: “defenses; burden of proof. (a) When a defense other than an affirmative defense, is raised at a trial, the state shall have the burden of disproving such defense beyond a reasonable doubt.
      “(b) When a defense declared to be an affirmative defense is raised at a trial, the defendant shall have the burden of establishing such defense by a preponderance of the evidence.”
      Once the defendant raised the defense of insanity at trial, the state therefore had the burden of proving the defendant’s sanity. Section 53a-13 has since been amended to shift this burden of proof by making insanity an affirmative defense. See Public Acts 1983, No. 83-486.

       The charge on insanity was not the only issue before the Appellate Court; see State v. Torrence, 1 Conn. App. 697, 708, 476 A.2d 598 (1984); but it is the only issue that is before this court. See text, pp. 433-34, and footnotes 4-5, infra.

       Practice Book § 3154 provides in relevant part: “The issues which the appellant may present [to the supreme court on certification] are limited to those raised in the petition for certification . . . except where the issues are further limited by the order granting certification.”

       We may, of course, suspend the limitation of Practice Book § 3154 for good cause shown. See Practice Book § 3164. In addition, under extraordinary circumstances, not present here, we may review matters not raised before the Appellate Court and resolve issues not determined by the Appellate Court. Cf. Practice Book § 3063.

       Practice Book § 3012 (a), made applicable to proceedings after certification by Practice Book § 3158, provides in relevant part: “If the appellee wishes to present for review alternate grounds upon which the judgment may be affirmed, or if he wishes to present for review adverse rulings or decisions of the court which should be considered on appeal in the event the appellant is awarded a new trial ... he may file a preliminary statement of issues within fourteen days from the filing of the appeal.” An appellee who is aggrieved by the decision of the Appellate Court may file a cross petition for certification within ten days of the filing of the appellant’s petition. Practice Book § 3141. Since the Appellate Court upheld the defendant’s conviction, the state was not aggrieved within the meaning of § 3141 and properly did not seek to file a cross petition for certification. If the state wished to present alternate grounds for upholding the trial court’s judgment, however, it should have filed an appellee’s preliminary statement of issues pursuant to § 3012 (a).

       Because the jury in State v. McCall, 187 Conn. 73, 86, 444 A.2d 896 (1982), was reconvened and given a curative instruction on the definition of insanity once the trial court had been informed of its error, the jury had no occasion to ask for additional explanation.

       The state also argues that the use of common law standards was harmless because this error somehow inured to the defendant’s benefit. We disagree. While it is true that the state bore the burden of disproving the defendant’s claim of insanity; see footnote 2, supra; it would have been easier to disprove membership in the smaller common law class of the totally incapacitated than to disprove membership in the larger statutory class of those who are only substantially incapacitated.


author: Per Curiam.

text:
    Al Barnett et al. v. Board of Zoning Appeals of the City of New Haven
    (12558)
    Healey, Shea, Dannehy, Santaniello and Callahan, Js.
    Argued April 12
    decision released June 11, 1985

      William F. Gallagher, with whom, on the brief, was Robert P. Borquez, for the appellants (plaintiffs).

      Roger B. Calistro, assistant corporation counsel, with whom, on the brief, were Charles Albom, Abigail Feliciano-Gomez and Gordon Hall, for the appellee (defendant).
   Per Curiam.

The plaintiffs have appealed from a decision of the defendant board of zoning appeals of the city of New Haven that denied their application for a “special exception” and a variance. Noting that “[t]he plaintiffs have failed to seek relief by way of ad damnum or any other claim of relief in their complaint on appeal,” the trial court dismissed the action for failure of the plaintiffs “to invoke the jurisdiction of the court . . . J’ Our decision in Fishery. Board of Zon ing Appeals, 142 Conn. 275, 113 A.2d 587 (1955), is dis-positive and, therefore, we hold that the trial court erred in dismissing this zoning appeal for failing to append to the complaint a prayer for relief.

There is error, the judgment is set aside and the case is remanded for further proceedings consistent with this opinion.

       It was conceded at oral argument before us that the trial court dismissed this matter on its own motion.


text:
    William Fellin v. Administrator, Unemployment Compensation Act, et al.
    (12454)
    Peters, C. J., Healey, Shea, Dannehy and Santaniello, Js.
    Argued April 9
    decision released June 11, 1985

      Edmund C. Tiryakian, with whom, on the brief, was Kirk D. Tavtigian, Jr., and Joel A. Boom, for the appellant (plaintiff).

      ThaddA. Gnocchi, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Robert E. Walsh, assistant attorney general, for the appellee (named defendant).
   Peters, C. J.

This case concerns the eligibility for unemployment compensation of a worker who, having been discharged from his primary employment, voluntarily leaves part-time secondary employment. The plaintiff employee, William Fellin, filed an administrative appeal in the Superior Court from the decision of the employment security board of appeals upholding the determination of the defendant administrator of the Unemployment Compensation Act that he was ineligible for benefits. The trial court dismissed the plaintiffs appeal. When the plaintiff then sought further review in the Appellate Court, this court transferred the case here pursuant to Practice Book § 3004A.

The underlying facts are undisputed. The plaintiff was a full-time employee of General Motors, his primary employer, for almost nine years until April 8, 1982. During the last eight months of his primary employment, he also worked part-time for General Corporation of America, his secondary employer. Several days after he was laid off from his primary job he voluntarily left his secondary job “to avoid complications with [unemployment] benefit or [sub-benefit] programs and to allow [himself] more available hours for any other full-time employment.” Although the plaintiff had previously been able to transfer his part-time work hours to accommodate his other commitments, he did not seek to change his part-time work schedule but instead terminated his secondary employment on April 11, 1982.

The plaintiff received unemployment benefits of $176 a week until the defendant administrator, after a hearing, determined that the plaintiff was not entitled to benefits from April 11, 1982, because “he voluntarily left suitable work without requisite cause.” See General Statutes § 31-236 (2) (A). As a result of this administrative determination, the plaintiff was declared to be ineligible for future benefits until he returned to work and earned ten times his benefit rate; see id.; and, in addition, was notified to return $3344 representing weekly benefits mistakenly paid to him from April 11 to August 21, 1982. The administrative record indicates that the investigation into the plaintiff’s eligibility was initiated by the claim of the plaintiff’s secondary employer that the plaintiff “left our company of his own choosing.” Throughout the administrative proceedings, the sole designated employer was the plaintiffs secondary employer, General Corporation of America.

The plaintiffs appeal to the employment security appeals division challenged the factual premises upon which the defendant had concluded that the plaintiff was ineligible for unemployment benefits. Before the appeals referee, he argued that he had left his secondary part-time employment for compelling personal cause because he needed time to apply for and to make himself available for full-time work. This claim was rejected and the plaintiff appealed to the board of review of the employment security appeals division, arguing that he had been unaware that he would have been able to continue working part-time without forfeiting partial unemployment benefits and protesting the unfairness of having to repay benefits previously received in good faith. These arguments were also rejected. Throughout his unsuccessful administrative appeals, the plaintiff acted on his own behalf without the assistance of counsel.

Having exhausted his ordinary administrative remedies, the plaintiff sought the advice of counsel, who filed a motion to reopen, addressed to the board of review, and an appeal addressed to the Superior Court. Notably, in both of these challenges, the plaintiff principally claimed error in the factual findings that underlay the determination of his ineligibility for unemployment benefits. The board of review denied his motion to reopen. The trial court determined that “[t]he action of the administrator in denying the claim of the plaintiff for unemployment compensation was not unreasonable, arbitrary or illegal.” The court then rejected the plaintiffs claim that his ineligibility for benefits violated either public policy or the plaintiff’s constitutional rights to substantive due process or equal protection of the laws.

The plaintiff’s appeal to this court puts the plaintiff’s alleged eligibility for unemployment benefits into a new context. Although in one of his claims of error the plaintiff continues to maintain that the administrative decision was unreasonable, arbitrary and an abuse of discretion, the plaintiff’s principal contention now is that the eligibility statute, properly construed, permits a distinction between eligibility for benefits arising out of part-time secondary employment and eligibility for benefits arising out of full-time primary employment. Should this court be disinclined to find such a distinction in the language of § 31-236 (2) (A), the plaintiff urges us to hold the statute to be so irrational as to violate the equal protection clauses of the United States and the Connecticut constitutions.

We need not linger at length over the plaintiff’s claim that the referee and the board of review erred in coming to the factual determination that he had left suitable work voluntarily and without sufficient cause connected with his work. As the trial court correctly noted, administrative appeals brought under General Statutes § 31-249b, insofar as they relate to factual findings, are limited to a review of the record certified and filed by the board of review. The scope of such judicial review is in turn limited to the question whether the administrative action was unreasonable, arbitrary, illegal or an abuse of discretion. Burnham v. Administrator, 184 Conn. 317, 321-22, 439 A.2d 1008 (1981); Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 5, 434 A.2d 293 (1980). The trial court’s memorandum of decision persuasively demonstrates that the plaintiff cannot successfully challenge the factual premises of the administrator’s action. In apparent recognition of the futility of further pursuit of this claim of error, the plaintiff’s counsel at oral argument in this court expressly disclaimed any further disagreement with the factual findings underlying the plaintiff’s declared ineligibility for unemployment benefits.

The plaintiff’s principal claim on this appeal is that the administrative proceedings were flawed not by factual error but by misconstruction of the applicable statute. Due respect for the remedial purposes of the Unemployment Compensation Act requires, he maintains, a construction of General Statutes § 31-236 (2) (A) that limits ineligibility for benefits to the particular work that the employee “left . . . voluntarily and without sufficient cause connected with his work.” This argument has two subparts, only the first of which was presented in the proceedings below. First, the plaintiff contends that, since he was not claiming benefits with regard to his part-time, secondary employment, he should be deemed fully eligible for unemployment benefits arising out of the involuntary termination of his full-time, primary employment. In the alternative, the plaintiff contends that he is at least entitled to retain those partial unemployment benefits, arising out of his discharge from his primary full-time work, which he could have collected had he retained his secondary, part-time job. Under either theory, he argues, the statute must be interpreted so that eligibility for unemployment benefits distinguishes between the work that was left without cause and the work from which the employee was discharged without fault.

This claim of statutory construction, although not fully articulated below, is properly here. Judicial review of administrative proceedings allows for “judicial scrutiny of claims such as constitutional error; see Connecticut Light & Power Co. v. Norwalk, 179 Conn. 111, 117, 425 A.2d 576 (1979); jurisdictional error; Slagle v. Zoning Board of Appeals, 144 Conn. 690, 693, 137 A.2d 542 (1957); or error in the construction of the administrative agency’s authorizing statute. See 2 Cooper, State Administrative Law (1965) 595-602. In addition, the leniency traditionally afforded to inexperienced pro se parties may justify belated consideration of claims not fully explored in earlier proceedings.” Burnham, v. Administrator, supra, 322-23.

This court has had little opportunity to examine the implications of part-time employment for eligibility for unemployment compensation. The case most closely relevant is Consiglio v. Administrator, 137 Conn. 693, 81 A.2d 351 (1951). There a worker voluntarily left part-time work, at a time when she was receiving partial unemployment benefits, in order to obtain a better full-time job with another employer. After two weeks on her new job, she was laid off for lack of work. The administrator found that the worker had left her part-time employment without sufficient cause and concluded that she was totally disqualified for benefits for the statutory disqualification period. Although we empathized with the worker’s legitimate desire to obtain a better job, we nevertheless held that “[t]he statute compels disqualification in every case in which an employee has left his work, with the one exception where there is sufficient cause connected with the employment which he leaves, in the opinion of the administrator.” Id., 700. Consiglio is not on all fours, because the partial unemployment benefits that the worker there forfeited were attributable to the work that she voluntarily left, that work having previously been full-time. Furthermore, this particular holding has been statutorily overruled by an express provision added in 1967. Nonetheless, Consiglio is instructive on two points: our inability to rewrite the Unemployment Compensation Act to reflect our own view of public policy, and our deference to the determinations of those charged with the administration of the unemployment compensation system.

The more expansive version of the plaintiffs statutory claim is that eligibility for unemployment compensation is causally related to the particular employment that is chargeable for benefits. This claim, which is the only issue of statutory construction that was pursued in the trial court, urges us to read critically the introductory language of § 31-236 which states that: “An individual shall be ineligible for benefits . . . .’’Because the statute does not use the words “any and all benefits,” the plaintiff suggests that the statute’s subsequent disqualification of someone who “has left suitable work voluntarily and without sufficient cause connected with his work . . .” can logically be construed to limit disqualification to unemployment benefits attributable to the work voluntarily left. Applying that principle to the facts of this case, the plaintiff urges us to hold that he had forfeited unemployment benefits with regard to his part-time secondary work but not with regard to his full-time primary work. We disagree. The plaintiffs argument is inconsistent with our repeated holdings that “the questions of eligibility and chargeability are, under our unemployment compensation laws, separate and distinct.” Burnham v. Administrator, supra, 324; see Oppenheimer v. Administrator, 177 Conn. 593, 594, 419 A.2d 337 (1979). Furthermore, since the plaintiffs argument raises at best a possible ambiguity in the statute, we are well advised to defer to a contrary administrative construction that is facially plausible.

The more limited version of the plaintiffs statutory claim, and the one he espoused at oral argument, is that he should be entitled to retain the partial benefits that he could have collected had he continued his part-time employment. Under § 31-229, the plaintiff’s part-time earnings would have reduced but would not have eliminated his unemployment benefits. Since the plaintiff had no duty to his former full-time employer to take up part-time employment, he maintains that he should not be penalized any further than to put him, and his former full-time employer, in the same position as if he had not voluntarily left his part-time work. In other words, his voluntary departure from his secondary employment should be irrelevant to the benefits attributable solely to his primary employment.

In support of his claim, the plaintiff relies on the holdings of a number of courts in other jurisdictions that have afforded similar benefits to part-time workers. See, e.g., Tomlin v. Unemployment Ins. Appeals Board, 82 Cal. App. 3d 642, 147 Cal. Rptr. 403 (1978); Neese v. Sizzler Family Steak House, 404 So. 2d 371 (Fla. App. 1981); Emerson v. Director of the Division of Employment Security, 393 Mass. 351, 471 N.E.2d 97 (1984); Sticka v. Holliday Village South, 348 N.W.2d 761 (Minn. 1984); Gilbert v. Hanlon, 214 Neb. 676, 335 N.W.2d 548 (1983); but see Grandy v. Phillips, 64 App. Div. 2d 796, 408 N.Y.S.2d 155 (1978). These cases emphasize that it furthers the policy of unemployment compensation acts to provide incentives for employees to take part-time work. They suggest that if such employees were to risk the loss of all unemployment benefits upon their subsequent termination of their part-time jobs, they would be less likely to enter into such employment. The decisions also point out that a former full-time employer has no justifiable complaint about his liability for benefits in such cases since, absent the claimant’s optional part-time work, the employer could have been charged for even larger benefits.

The plaintiffs argument might well be persuasive if, “in the opinion of the administrator”; General Statutes § 31-236 (2); it is determined to be a reasonable construction of the governing statutes. The record is, however, clear that no such question was ever raised during the proceedings before the referee or the board of review. It is equally clear that the full-time primary employer has never had the opportunity to be heard on this issue. The only employer who participated in the administrative hearings was the part-time secondary employer, who successfully demonstrated that the plaintiff left that employment voluntarily and without cause. Ordinarily, we would hold that the failure to lay a timely administrative foundation for our consideration of this question should bar its belated consideration in this court, especially when the matter was only tangentially addressed in the trial court. Nonetheless, because we are confronted with a novel issue that raises important policy considerations, and because the plaintiff was pro se throughout almost all of the administrative proceedings, we believe that the remedial purposes of the Unemployment Compensation Act counsel a remand to the board of review in this case for consideration of the matter as finally framed before this court.

There is error, the judgment of the trial court is set aside and the matter is remanded with direction to remand the case to the board of review for further proceedings.

In this opinion the other judges concurred.

       Practice Book § 3004A provides:
      “The supreme court may transfer to itself a cause in the appellate court. Except for any matter brought pursuant to its original jurisdiction under the constitution, the supreme court may transfer a cause or class of causes from itself, including any cause or class of causes pending on July 1,1983, to the appellate court. The court to which a cause is transferred has jurisdiction.
      “There shall be no fee on such transfer. The chief clerk of the supreme court shall notify all parties and the clerk of the trial court that the appeal has been transferred. A case so transferred shall be entered upon the docket of the court to which it has been transferred and the chief clerk shall require the parties to take such steps as may be necessary to make the appeal conform to the rules of the court to which it has been transferred.”

       General Statutes § 31-326 provides in relevant part: “An individual shall be ineligible for benefits ... (2) (A) if, in the opinion of the administrator, he has left suitable work voluntarily and without sufficient cause connected with his work, provided no individual shall be ineligible for benefits if he leaves suitable work for cause, including leaving as a result of changes in conditions created by his employer, or until such individual has earned at least ten times his benefit rate.”

       See the last clause of footnote 2, supra.

       In his motion to reopen the determination of the board of review, the plaintiff sought permission to introduce “new evidence” to remedy the “grave injustice” of the administrative decision. The board of review denied this motion because it could not “formulate a considered opinion as to the materiality of either such ‘injustice’ or the ‘new evidence’ ” when the motion failed to describe or to specify the grounds upon which it was premised.

       Because of our disposition of the plaintiff’s statutory argument, we do not reach his constitutional claims.
      The plaintiff also alleges error in the denial by the board of review of his motion to reopen. As the defendant properly observes, this issue was not pursued in the trial court. On the contrary, the trial court expressly noted in its memorandum of decision that the plaintiff had admitted that “he [had] been afforded procedural due process in the [administrative] determination of his claim.” On this state of the record, we decline to consider this matter further. See Practice Book § 3063.

       In light of this concession, we need not discuss further the plaintiff’s contention that the part-time employment that he left voluntarily was not “suitable work.” Because that specific issue was not properly raised before the board of review, it would in any case have been inappropriate for us to consider it on its merits. Finkenstein v. Administrator, 192 Conn. 104, 112-14, 470 A.2d 1196 (1984).

       Public Acts 1967, No. 790, § 14, added as a fourth proviso to the general disqualification rule of General Statutes § 31-236 that “a person who leaves part-time work to accept full-time work, shall not be ineligible on account of such leaving.” General Statutes § 31-236 (2) (B) (iv).

       We note that the administrator’s interpretation of the act is also consistent with the provision of General Statutes § 31-236 (2) (B) (iv) that “a person who leaves part-time work to accept full-time work, shall not be ineligible [for benefits] . . . .” That provision demonstrates that the legislature was not unaware of possible conflicts between part-time and full-time employment.

       General Statutes § 31-229 provides: “benefit foe partial unemployment. An eligible individual who is partially unemployed throughout a week, which shall be, at the discretion of the administrator, either a calendar week or a payroll week of seven consecutive days as determined by the administrator, shall be paid with respect to such week an amount equal to his benefit rate for total unemployment reduced by an amount equal to two-thirds, rounded to the next higher whole dollar, of the total remuneration, rounded to the nearest whole dollar, of any nature payable to him for services of any kind during such week, except service performed in the employ of any town, city or other political subdivision, which service is performed in lieu of payment of any delinquent tax payments to such town, city or other political subdivision. An individual shall be deemed to be partially unemployed in any week of less than full-time work if the total remuneration of any nature payable to him for services of any kind during such week, except service performed in the employ of any town, city or other political subdivision, which service is performed in lieu of payment of any delinquent tax payments to such town, city or other political subdivision, amounts to less than one and one-half times his benefit rate for total unemployment rounded to the next highest dollar. For purposes of this section, remuneration shall also include any holiday pay payable with respect to any such week, whether or not any service was performed during such week or was in any other way required for receipt of such holiday pay.”

       The impact of a voluntary quit without sufficient cause from a part-time job on eligibility for benefits of an employee who has also been laid off from primary employment has been the subject of three recent Superior Court decisions: Brown v. Administrator, Superior Court, Judicial District of Hartford-New Britain at Hartford, No. 281428, December 7, 1984, appeal pending, No. 12654 (Supreme Court); Oslundv. Administrator, Superior Court, Judicial District of Hartford-New Britain at Hartford, No. 280791, June 29,1983, reversed for lack of jurisdiction, 3 Conn. App. 258, 487 A.2d 211 (1985); Sullivan v. Administrator, Superior Court, Judicial District of New London, No. 064261, May 24, 1982. However, the possibility of partial eligibility was not addressed in any of these cases. In Oslund, total eligibility was found; in Brown and Sullivan, total ineligibility was found.