author: Santaniello, J.

text:
    Anthony Kolich, Administrator (Estate of Barbara Maintanis) v. James F. Shugrue, Commissioner of Transportation George Maintanis v. James F. Shugrue, Commissioner of Transportation
    (12205)
    (12206)
    Shea, Dannehy, Santaniello, Callahan and P. Hennessy, Js.
    Argued November 8, 1985
    decision released January 14, 1986

      Richard Bieder and Robert J. Nicola, with whom were Joan Harrington and, on the brief, Kevin L. Bums, for the appellants (plaintiff in each case).

      Arnold J. Bai, with whom was Garie J. Mulcahey, for the appellee (defendant in both cases).
   Santaniello, J.

These appeals raise the question whether a party suing the state under General Statutes § 13a-144 must prove that the alleged defect in the state highway was the sole proximate cause of his injuries. The plaintiffs, George Maintanis and Anthony Kolich, the administrator of the estate of Barbara Maintanis, brought separate suits against the state alleging that the state negligently constructed and maintained its highways. The cases were consolidated for trial, and in each case the jury returned a verdict in favor of the state. The court rendered judgments in accordance with the verdicts, and the plaintiffs subsequently appealed. We find no error.

On August 7,1977, at approximately 2 a.m., George and Barbara Maintanis were traveling westbound on the Connecticut turnpike in Milford when their car was struck by a van. The car swerved off the highway and crashed into the median divider. Barbara Maintanis was killed and George Maintanis was injured. There was evidence that the guardrail which their car struck was improperly secured and may have contributed to their injuries. There was also evidence that George Maintanis, who was driving, was intoxicated at the time of the accident.

Both plaintiffs brought suit against the state alleging that the state negligently constructed and maintained the guardrail on the turnpike and that the defect proximately caused their injuries. The state’s liability was predicated on General Statutes § 13a-144. After the case went to trial and the evidence was presented, the plaintiffs requested that the court instruct the jury that if the highway was defective and that defect was “a substantial factor” in causing the plaintiffs’ injuries, then it must return a verdict in their favor. Instead, the court instructed the jury that it was the plaintiffs’ burden to show that the defective highway was “the sole proximate cause” of their injuries. The jury returned verdicts in favor of the state and the court rendered judgments accordingly. Neither plaintiff moved to have the verdict against him set aside.

On appeal, the plaintiffs argue that the trial court erred in its instruction to the jury on proximate cause. Both plaintiffs, however, failed to file a motion to set aside the verdiet in accordance with Practice Book § 320 and General Statutes § 52-228b. It is an established rule of appellate practice in this state that in order to obtain a full review of claims of error in civil jury cases, parties must raise those errors with the trial court and file a motion to set aside the verdict. Pietrorazio v. Santopietro, 185 Conn. 510, 513-16, 441 A.2d 163 (1981) (claimed errors involving the sufficiency of evidence and admissibility of testimony); Gordon v. Feldman, 164 Conn. 554, 557, 325 A.2d 247 (1973) (sufficiency of evidence); Warner v. Pandolfo, 143 Conn. 728, 729, 122 A.2d 738 (1956) (sufficiency of evidence); Polce v. Stop & Shop Cos., 4 Conn. App. 18, 19, 492 A.2d 206 (1985) (charge to the jury); Denby v. Voloshin Cadillac, Inc., 3 Conn. App. 181, 183, 485 A.2d 1360, cert. dismissed, 196 Conn. 802, 491 A.2d 1105 (1985) (directed verdict); Eagar v. Barron, 2 Conn. App. 468, 472, 480 A.2d 576 (1984) (computation of interest on award); Rozbicki v. Pelletier, 2 Conn. App. 87, 88, 476 A.2d 1069 (1984) (charge to the jury); see General Statutes § 52-228b. The purpose of the rule is to provide the trial court with an opportunity to pass on claims of error which may become the subject of an appeal. Even if the issue was raised during the course of a trial and the party has properly preserved the issue for review, the trial court should be given “a full opportunity to redress any errors which may have occurred at trial before the appellate process is begun.” Pietrorazio v. Santopietro, supra, 515.

The plaintiffs’ failure to file a motion to set aside the verdict limits our review in these cases to ascertaining whether there has been “plain error.” Practice Book § 3063; Pietrorazio v. Santopietro, supra. “Practice Book § 3063 provides that this court ‘may in the interest of justice notice plain error not brought to the attention of the trial court.’ Such review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985).

Reviewing the record and arguments presented in these appeals, we conclude that it was not plain error for the trial court to have instructed the jury as it did. The trial court’s instruction on causation was in accordance with a long line of decisions holding that parties suing the state under General Statutes § 13a-144 must prove that the defective highway was the sole proximate cause of their injuries. See Foster v. Waterford, 186 Conn. 692, 695, 443 A.2d 490 (1982); Lukas v. New Haven, 184 Conn. 205, 207, 439 A.2d 949 (1981); Donnelly v. Ives, 159 Conn. 163, 167, 268 A.2d 406 (1970); Pape v. Cox, 129 Conn. 256, 259, 28 A.2d 10 (1942); Roth v. MacDonald, 124 Conn. 461, 463-64, 200 A. 725 (1938). The plaintiffs argued to the trial court that it should disregard this formidable array of precedent. The trial court, by ruling against the plaintiffs and following the established rule of law, can hardly be said to have committed “plain error.”

The plaintiffs have made the additional argument that General Statutes § 52-228b is unconstitutional because it impermissibly restricts the jurisdiction of this court over cases otherwise properly before it. In Pietrorazio v. Santopietro, supra, we relied on § 52-228b to establish the rule, set out above, limiting our review in cases where the parties did not file a motion to set aside the verdict. Our jurisdiction to hear cases, however, is not in any way restricted by this rule or by § 52-228b. “The failure to file [a motion to set aside the verdict] does not affect the jurisdiction of this court over the appeal, because the acceptance of the jury verdict at the time it is rendered is deemed to constitute a final judgment; Grzys v. Connecticut Co., 123 Conn. 605, 607n., 198 A. 259 (1938); Hull v. Thoms, 82 Conn. 386, 391, 73 A. 793 (1909); unless a motion to set aside is later filed. Tough v. Ives, 159 Conn. 605, 606, 268 A.2d 371 (1970). General Statutes § 52-263 expressly authorizes an appeal to this court from any final judgment except those specifically excluded. See Rickey v. E. H. Jacobs Mfg. Co., 142 Conn. 495, 496, 115 A.2d 336 (1955).” Pietrorazio v. Santopietro, supra, 512-13. Thus, although the failure to file a motion to set aside the verdict will limit the extent of appellate review afforded, the motion is not a prerequisite to an appeal and thus not a limitation on jurisdiction.

There is no error in either case.

In this opinion the other judges concurred.

       These appeals were not consolidated pursuant to Practice Book § 3002. Because they present identical issues and share a common procedural history, however, we discuss their merits together.

       General Statutes § 13a-144 provides in part: “Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the commissioner of transportation to keep in repair, or by reason of the lack of any railing or fence on the side of such bridge or part of such road which may be raised above the adjoining ground so as to be unsafe for travel or, in case of the death of any person by reason of any such neglect or default, the executor or administrator of such person, may bring a civil action to recover damages sustained thereby against the commissioner in the superior court. . . .”

       Both plaintiffs originally presented two issues for review: (1) whether the trial court erred in its instruction to the jury on sole proximate cause; and (2) whether the trial court should have instructed the jury on superseding and intervening causes. The second issue is really subsumed in the plaintiffs’ primary claim as to proximate cause. We fail to see how the trial court could consistently instruct the jury that the defect in the highway must be the sole proximate cause of the injuries while at the same time instructing them on superseding and intervening causes.

       Practice Book § 320 provides in part: “Motions in arrest of judgment, whether for extrinsic causes or causes apparent on the record, motions to set aside a verdict and motions for new trials . . . must be filed with the clerk within five days after the day the verdict is accepted or judgment rendered .... Such motions shall state the specific grounds upon which counsel relies.”
      General Statutes § 52-228b provides in part: “No verdict in any civil action involving a claim for money damages may be set aside except on written motion by a party to the action, stating the reasons relied upon in its support, filed and heard after notice to the adverse party according to the rules of the court. ...”


source: Caselaw Access Project

author: Arthur H. Healey, J.

license: Public Domain

text:
    State of Connecticut v. Marguerite Findlay
    (11158)
    Healey, Shea, Dannehy, Santaniello and Callahan, Js.
    Argued November 8, 1985
    decision released January 14, 1986

      Richard Emanuel, for the appellant (defendant).

      F. Kent Sistare, Jr., special assistant state’s attorney, with whom were CarlSchuman, assistant state’s attorney, and, on the brief, Dennis A. Santore, state’s attorney, for the appellee (state).
   Arthur H. Healey, J.

The defendant, Marguerite Findlay, was charged in a substitute information, with the crime of robbery in the first degree by aiding, in violation of General Statutes §§ 53a-134 (a) (4) and 53E-8. She was convicted after a jury trial and sentenced to the custody of the commissioner of correction for a term of seven years. The defendant appeals from the judgment of conviction.

The defendant raises five issues on appeal: (1) whether there was sufficient evidence to establish the defendant’s guilt beyond a reasonable doubt; (2) whether the court erred in denying the defendant’s motion to suppress identification; (3) whether the defendant’s rights were violated by the admission of evidence relating to two men seen with the defendant in a Dodge Omni two days before the robbery; (4) whether there was error in the denial of the defendant’s motion for a new trial based on the prosecutor’s remarks during closing argument; and (5) whether the court erred in its charge to the jury.

It is undisputed that the New Milford Savings Bank in Bridgewater was robbed on Friday, July 31, 1981, at approximately 10:15 a.m., by two armed men wearing rubber face masks. The robbers absconded with $8282 in a 1973 rust colored Ford Torino automobile. As the robbers were driving away, bank employees were able to write down the Connecticut license plate number.

The jury could reasonably have found these additional facts: At approximately 10:10 a.m. on the day of the bank robbery, a farmer, Robert Rumovicz, was driving a tractor towing a hay bind, with an overall length of 22-24 feet, north along Second Hill Road in Bridge-water. Second Hill Road borders Rumovicz’ dairy farm. A small yellow or cream colored car with a woman, later identified as the defendant, in the driver’s seat was parked on the right hand side of the road. The farmer expected the woman to move the car because the road was particularly narrow at that point and he knew he would have some difficulty in moving the hay bind past her car. It took Rumovicz approximately forty to sixty seconds to pass the car, and, as he did so, he stared at the driver in an attempt to display his irritation and annoyance with her for not moving her car. About ten minutes after Rumovicz passed the defendant’s car, he returned on the same road back to his farm. The car was no longer parked on the road but a rust colored Ford Torino, later identified as the one used by the robbers to flee from the bank and as having been stolen, was parked in the same area. Police officers were already examining the Ford when Rumovicz arrived.

A second witness, Alice Borodenko, testified that she was driving south on Second Hill Road at approximately 10:20 a.m. on the day of the robbery when she saw a small new cream colored car parked on the opposite side of the road with a woman in the driver’s seat. At this same time, Borodenko saw a reddish-brown or “root beer colored” car approaching from the opposite direction and she stopped her car to allow it to pass the cream colored car. The reddish car, however, parked behind the cream colored car and two men got out of the car. The passenger grabbed a package from the back seat of the car. Borodenko continued driving, and while looking in her rearview mirror, she saw both men run to the other car and she saw one man open a door of the cream colored car. At this point her car had negotiated either a dip in the road or a curve and she was then unable to view the men further. A few minutes later, when the police arrived on the scene, only the Ford, identified as the same car Borodenko had seen, was still parked on the road.

Rumovicz was able to give a description of the car and its driver to the police within minutes after seeing them. He described the car to the police as a beige/tan/ yellow Dodge because he recognized its emblem and because he saw a red and white Dodge dealer vanity plate on the front of the car after he had passed it. Later in the day of the robbery, Rumovicz accompanied police officers to a Dodge dealership where he identified the model of the car as an Omni. At a second Dodge dealership, Rumovicz identified a Bosco Dodge dealer’s plate as the plate that he had observed was on the front of the defendant’s car. It was undisputed that the defendant was driving a rented yellow 1981 Dodge Omni with a Bosco Dodge vanity or dealer front plate on the day of the robbery. The defendant, a grant administrator for the town of Beacon Falls, reported late to work on Friday, July 31, arriving sometime between 11:08 and 11:30 a.m.

On the day of the robbery, Rumovicz also described the woman driver of the Dodge as heavy set—“heavier at the bottom than at the top.” She was approximately 30 years old and she was wearing tinted eyeglasses, with large frames rounded at the bottom. He testified that she was wearing a white dress with black prints or circles spaced evenly over the dress. Rumovicz’ initial description to the police also included a description of the woman’s hair as a “Shirley Temple hairdo,” greasy looking and oily, with an “unnatural” appearance. He later testified at trial that she had a “birthmark, a mole or something” on her face. At trial, a little more than two months after the robbery, Rumovicz positively identified the defendant as the driver once she had put on her glasses at defense counsel’s request.

On the basis of Rumovicz’ initial description of the woman driver of the Omni, Detective Robert Connor of the Connecticut state police had a suspect in mind— the defendant Marguerite Findlay. On the afternoon of the robbery, Connor asked Rumovicz to accompany him to the Beacon Falls town hall parking lot to view an automobile. While in the parking lot, and after Rumovicz identified the defendant’s car as the one he had seen earlier on Second Hill Road, the defendant left the town hall and walked to her car. Rumovicz identified the defendant as resembling or “strongly” resembling the woman he had seen earlier that day in the Omni, except for her hair. Rumovicz also testified that a photograph of the defendant shown to him by Connor several days after the robbery “looked” like the woman he had seen in the Omni.

I

The defendant claims that the evidence was insufficient to establish the defendant’s guilt beyond a reasonable doubt. “When a verdict is challenged because of insufficient evidence, the issue is whether the jury could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt. . . . State v. Benton, 161 Conn. 404, 407, 288 A.2d 411 (1971).” State v. Nemeth, 182 Conn. 403, 410, 438 A.2d 120 (1980); see State v. Carter, 196 Conn. 36, 44, 490 A.2d 1000 (1985). “The evidence must be given a construction most favorable to sustaining the jury’s verdict.” State v. Carter, supra.

There was sufficient evidence from which the jury could have concluded that the defendant was the driver of the Dodge Omni Rumovicz had seen on the morning of the robbery. Rumovicz positively identified her at trial, including testifying to a corroborating birthmark or mole which he did not see in either the parking lot identification or in the side-view photograph shown to him by Connor. While Rumovicz had not told the police about this birthmark or mole, he testified at trial that he repeatedly recalled that he “kept looking back at the [defendant’s] face” on Second Hill Road and “I kept seeing a birthmark or a mole.” There was evidence at the trial that the defendant has “a birthmark or brownish mark over the left side of her upper lip.” Although her hair did not match his initial description, the jury could reasonably have inferred that she had somehow altered her hair style in order to avoid recognition, as Rumovicz had described the hair as unnatural looking.

Borodenko corroborated the description of the car and she also saw two men running from the Ford Torino towards the Dodge Omni and opening one of the doors. Although Borodenko did not see the men enter the car, the jury could reasonably have inferred that the sequence of events explained how, within minutes of the robbery, the Dodge Omni was gone, the two robbers had abandoned the Ford and were able to flee the area. The defendant’s alibi defense of purchasing gasoline at a certain Mobil gas station could not be confirmed. The attendant working at the gas station on July 31, 1981, from 6:30 a.m. to 1 p.m. testified that he did not remember seeing a subcompact car fitting the description of the getaway car that he had heard broadcast over a police scanner come into the station that morning. Nor did he remember seeing the defendant come into the station that morning. In addition, the defendant was absent from work for most of the morning of the robbery.

The jury, as the trier of fact, determines the credibility of witnesses, and it is not the province of this court to retry the facts or to determine the weight which should have been accorded witnesses’ testimony. Viewing the evidence as a whole and in a light most favorable to sustaining the jury’s verdict, we cannot say that there was insufficient evidence to establish the defendant’s guilt beyond a reasonable doubt. On the contrary, the facts proved, and the reasonable and logical inferences that the jury could draw from them, strongly support the verdict finding the defendant guilty of robbery in the first degree by aiding.

II

The defendant’s second claim of error is that the court erred in denying the defendant’s motion to suppress identification. The defendant filed a motion to suppress any testimony of Robert Rumovicz “regarding any possible identification of [the defendant] subsequent to the morning of July 31,1981, as there was an impermissibly suggestive identification procedure utilized by the state which fatally taints any subsequent in Court or out of Court identifications.” A hearing on the motion to suppress was held in the absence of the jury and before there was an in-court identification of the defendant by Rumovicz. The motion was denied by the trial court and a proper exception was taken.

The two out-of-court identification procedures at issue occurred on July 31, 1981, and approximately a week to ten days later. The first identification procedure occurred on the afternoon of the robbery at the Beacon Falls town hall parking lot. Connor, who accompanied Rumovicz to the lot, testified that the “primary reason” for the trip was to view an automobile. Connor had some information that the defendant would be leaving work at approximately 4 p.m. The viewing of the automobile took place at approximately 3:30 p.m., and, “within moments” of the identification of the car by Rumovicz, the defendant walked from the town hall to the Dodge Omni. The distance between the car in which Connor and Rumovicz were seated and the Dodge Omni was approximately 75 to 100 feet. The detective did not expect the defendant to be in the parking lot at that particular time as the trial court found at the hearing on the motion to suppress. Rumovicz indicated to the detective that the defendant “strongly resembled” the woman in the Omni that morning, “only the hair was different.”

The second identification procedure occurred at Rumovicz’ farm approximately ten days after the robbery. Connor was questioning an employee of Rumovicz, who was a witness to another incident under investigation, and was showing him several photographs. When Rumovicz approached Connor, who was seated in his car, he briefly showed Rumovicz a single photograph of the defendant. The detective held the picture while Rumovicz viewed it from outside the car. Rumovicz said the photograph resembled the woman in the car but that the hair was not the same.

The state did not offer evidence of either out-of-court procedure. The defense, however, did elicit evidence of the two out-of-court identification procedures for impeachment purposes after the court denied the motion to suppress and permitted the in-court identification of the defendant by Rumovicz.

The defendant claims that both out-of-court identification procedures were impermissibly and unnecessarily suggestive and that, therefore, the in-court identification was erroneously admitted. We do not agree. As this court has repeatedly stated, the required inquiry in determining whether identification procedures violate a defendant’s due process rights is “made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on examination of the 'totality of the circumstances.’ ” State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980).

The first identification procedure was not unnecessarily suggestive. The defendant, in making her claim, argues that the viewing of the defendant in the town hall parking lot was akin to a “show-up”—the presentation of a single suspect to an eyewitness for possible identification. Unlike many cases in which a suspect in the custody of the police is presented to a witness for identification; see, e.g., State v. Middleton, 170 Conn. 601, 368 A.2d 66 (1976); the defendant was not under arrest at the time of the viewing, she was not in custody, and most significantly, the viewing was unplanned, as the trial court found. The primary purpose of the detective and Rumovicz was to view the defendant’s car before she left that day from work. The fact that she left work approximately one-half hour early could not be attributed to any arrangement by Connor. There is no support to the defendant’s claim that the town hall parking lot viewing was unnecessarily suggestive.

The second identification procedure involved a single photograph of the defendant shown to Rumovicz by Connor. Upon a “motion to suppress evidence based upon photographic identifications, the defendant as the moving party must bear the initial burden of proving that the photographic identification was unconstitutional in some manner.” State v. McKnight, 191 Conn. 564, 570, 469 A.2d 397 (1983); State v. Vass, 191 Conn. 604, 608, 469 A.2d 767 (1983); State v. Hafner, 168 Conn. 230, 235, 362 A.2d 925, cert. denied, 423 U.S. 851, 96 S. Ct. 95, 46 L. Ed. 2d 74 (1975). As the defendant notes, the “test of an unnecessarily suggestive identification procedure depends on the facts and circumstances of each case.” See Simmons v. United States, 390 U.S. 377, 383, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968); State v. Soriano, 2 Conn. App. 127, 130-31, 476 A.2d 633 (1984).

The defendant argues that the viewing of the single photograph by Rumovicz was unnecessarily and impermissibly suggestive. Absent exigent circumstances that require police officers “promptly [to establish] either the defendant’s complicity or his innocence”; State v. Perez, 198 Conn. 68, 74, 502 A.2d 368 (1985); the showing of a single photograph of a defendant is almost always unnecessarily and impermissibly suggestive. State v. Dupree, 196 Conn. 655, 667, 495 A.2d 691, cert. denied, 474 U.S. , 106 S. Ct. 318, 88 L. Ed. 2d 301 (1985). As there were no exigent circumstances or other compelling reason present to justify the showing of the photo, we agree with the defendant that the second identification procedure was unnecessarily suggestive.

Although the viewing of the photo was unnecessarily suggestive, the defendant still cannot prevail because the in-court identification itself was nevertheless reliable in light of the totality of the circumstances. “[Reliability is the linchpin in determining the admissibility of identification evidence.” State v. Doolittle, 189 Conn. 183, 192, 455 A.2d 843 (1983); see Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977); State v. Fullwood, 193 Conn. 238, 250-51, 476 A.2d 550 (1984). The factors to be considered in a reliability analysis are well established. See Manson v. Brathwaite, supra; Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972). The defendant has failed to sustain her burden of proving that the viewing of the photograph in this case was unconstitutional.

The reliability of the identification is disclosed by the circumstances set out below. The facts surrounding the display of the photo indicate that it was unplanned and unarranged. Connor was present at Rumovicz’ farm investigating an unrelated incident in which a white Dodge Omni was stuck in a ditch on that same portion of Second Hill Road in which the defendant was seen in a Dodge Omni. The detective was speaking to one of Rumovicz’ farm employees who had helped the woman involved in that incident. Of the photographs he was showing the employee, one was a photograph of the defendant taken after her arrest. The viewing of the photo by Rumovicz, after he had voluntarily approached the detective, was brief. At trial, Rumovicz testified that the photo he saw was of the defendant at a party or surrounded by other people. In fact, at trial, Rumovicz did not “really remember the photo that much.” There is little evidence, if any, that the photograph so briefly viewed by Rumovicz figured into his in-court identification of the defendant. Rumovicz had an ample opportunity to view the defendant through her open car window on a clear day. He focused carefully on her face in order to express his annoyance with her. He made a positive in-court identification of the defendant. Included in his in-court identification of the defendant was the description of a mole or birthmark which Rumovicz had not previously mentioned and which could not have been observed in either pretrial identification procedure. This corroborating evidence as well as his detailed initial description and his observations on the morning of July 31,1981, form the entire basis for his in-court identification. Thus, neither procedure tainted his in-court identification. We particularly note that the trial court said: “[I] find that his [in-court] identification is based entirely upon his observations made on the morning of July 31st [the date of the robbery], and it’s not tainted at all by any subsequent view in the Beacon Falls parking lot or having seen a snapshot for a matter of seconds, some week or ten days later.” We also point out that “[t]he credibility of the witnesses in a challenge to identification evidence is a question for the trial court to determine. State v. Vass, supra, 610; State v. McKnight, supra, 571-72.” State v. Fullwood, supra, 246. The trial court, therefore, did not err in denying the defendant’s motion to suppress.

Ill

The defendant raised two claims arising out of the trial court’s denial of her motion for a new trial. We discuss those claims seriatim.

A

The first claim is that the trial court erred in admitting evidence that the defendant was with two men in a Dodge Omni on July 29,1981. The state claims that the evidence was properly admissible as relevant to a demonstration that the defendant was associated with two men in a car matching the description of the automobile seen by Robert Rumovicz on Second Hill Road the morning of the robbery. We agree.

The state introduced evidence at trial, through two witnesses, that the defendant was seen in Naugatuck with two men in a Dodge Omni with a Bosco Dodge vanity plate. The first witness, an acquaintance of the defendant’s from high school, testified that he saw Marguerite Findlay seated in a car two days before the robbery, on July 29,1981, around 4 or 5 p.m. The witness testified, after defense counsel objected, that the other occupants of the car were two men. The first witness was unable to describe the car in which the defendant was seated.

The second witness for the state testified that he owned the laundromat in front of which the Dodge Omni was parked on July 29, 1981. The first witness had been visiting him in his store on the afternoon of July 29,1981. The second witness noticed a beige subcompact car with a Bosco Dodge plate pull up in front of his store and testified, over defense objection, that there were two men in the front seat.

The defendant, upon cross-examination by the state, admitted being at the laundromat in Naugatuck on July 29,1981, in the afternoon, with two men in a yellow Dodge Omni. Defense counsel objected on relevancy grounds to the state’s question to the defendant: “And who were you with?” The defendant named two individuals, John Paul Reid and Rodney Johnson.

“Rulings on relevancy are within the wide discretion of the trial court and will only be reversed for an abuse of that discretion.” State v. DeForge, 194 Conn. 392, 399, 480 A.2d 547 (1984). “Evidence is admissible when it tends to establish a fact in issue or to corroborate other direct evidence in the case.” State v. Towles, 155 Conn. 516, 523, 235 A.2d 639 (1967); see State v. Schaffer, 168 Conn. 309, 317, 362 A.2d 893 (1975). This challenged evidence placed the defendant in the type of car observed by Rumovicz on Second Hill Road on the morning of the robbery and again that afternoon in the town hall parking lot. In addition, Alice Borodenko testified that on the morning of the robbery she observed two men, one with a package, running to that type of car after they had alighted from a Ford car which the Bridgewater bank robbers had used. There was no abuse of discretion in admitting this evidence. The state’s proffer of evidence of the actions of the defendant two days before the robbery does have a tendency to prove the defendant committed the crime with which she was charged. The evidence was relevant and admissible and, as such, the jury was free to weigh the testimony as it would any other piece of evidence.

In the defendant’s motion for a new trial under Practice Book § 902, she assigns as constitutional error, and as error which was materially injurious to her, the “state’s references in direct and cross-examination to Rodney Johnson and John Paul Reid.” The motion was denied by the trial court. “On a motion for a new trial . . . the court has discretion to weigh the evidence and to consider the credibility of witnesses to determine whether ‘the interests of justice’ require the granting of relief.” Gaines v. Manson, 194 Conn. 510, 520 n.12, 481 A.2d 1084 (1984); see Practice Book § 902. The granting of such a motion is within the court’s discretion. At no time did the state claim that the two men who had been in the Omni on July 29, 1981, were also the robbers who were seen abandoning their Ford Torino and running toward the Omni in which the defendant was seated. Any inferences that could be drawn from such evidence were left to the trier of fact. The trial court which is in a better position than this court to “consider the credibility of witnesses” determined that these circumstances did not require a new trial in the “interests of justice.” The defendant has failed to sustain her burden of proving that the elicitation of the two men’s names was “materially injurious” to her.

B

The defendant’s second claim in her motion for a new trial is that she was deprived of a fair trial and of her right to due process under the federal and state constitutions by certain remarks made by the prosecutor in closing argument. She also claims that the trial court erred in denying her motion for a new trial.

In closing argument, defense counsel referred to the defendant’s background, including her schooling, and her daughter. The prosecutor made the following remarks to the jury: “Now, Mr. Gill told you to consider one last thing; that was the background of this woman. And he told you—he listed the stuff, the background education stuff that he first delivered through testimony when Mrs. Findlay first got on the stand. His Honor will tell you that sympathy should not play a part in your deliberations. The fact that she’s a mother, living alone with her child, has nothing to do with what you do in this courtroom. We can turn around and look at the kind of people she was hanging around with at the Bounce, as she referred to it. And certainly you can tell from some of the goings on that maybe a different picture could be painted, if we were allowed to. But His Honor will tell you that that’s not something that you can consider in sitting there and deliberating in that room. What she’s done before has no bearing on what she has done now.” Defense counsel did not object to these remarks. In fact, he “intentionally refrained from making a contemporaneous objection or requesting a cautionary instruction.” The objection was therefore waived. Practice Book § 3063.

This issue was raised in a motion for a new trial. The trial court denied the motion, stating that there was nothing in the argument which was prejudicial. The remarks at issue are considered by the state to be fair rebuttal to statements made in defense counsel’s closing argument. At the trial, the defendant made no objection and did not seek any other relief. On appeal, the defendant argues that this claim is reviewable under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). Because he claims the deprivation of a fundamental constitutional right and a fair trial, we will review this claim under the “exceptional circumstance” prong of Evans.

The defense counsel attempted to paint a favorable portrait of the defendant in order to create a reasonable doubt in the minds of the jury that “Marguerite Findlay is a getaway driver.” In attempting to brush one more stroke onto the defense counsel’s portrait in order to make it provide some contrast, the prosecutor warned the jury that “sympathy should not play a part in the deliberations.” In contrast to the defendant’s status as a single parent at home with her child, raised by defense counsel, the prosecutor questioned her status as a woman who also frequented the Bounce In and questioned the “kind of people she was hanging around with [there].” The prosecutor remarked that perhaps defense counsel’s portrait was not the only one that could be painted, but she then specifically warned the jury that speculation should play no part in its role.

The remarks at issue in this case were not at all egregious. Cf. State v. Couture, 194 Conn. 530, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985). Moreover, in our examination of this claim, the action of the trial court, because of its unique vantage point, is certainly entitled to great weight in determining the propriety of remarks of counsel and their harmfulness under all the circumstances at the trial. State v. Glenn, 194 Conn. 483, 493, 496, 481 A.2d 741 (1984). We cannot agree with the defendant that the state’s comments deprived her of a fair trial. Therefore, the trial court did not err in denying her motion for a new trial.

IV

The defendant’s final claim is that the court’s instructions to the jury on the requirement of proof beyond a reasonable doubt impermissibly lowered the burden of proof required for conviction, in violation of her due process rights.

Although this claim was not raised in the trial court by a written request to charge or an exception, the defendant’s claim warrants review under the exceptional circumstance exception of State v. Evans, supra. See State v. Moss, 189 Conn. 364, 456 A.2d 274 (1983).

The defendant claims that the instructions on reasonable doubt were erroneous in two respects. The first claimed error is that the court, in a portion of its definition of reasonable doubt, stated that it was a “doubt for which a valid reason can be assigned.” The defendant, citing a dissent from a denial of certification in Butler v. South Carolina, 459 U.S. 932, 103 S. Ct. 242, 74 L. Ed. 2d 191 (1982) (Marshall, J.), states that the “inherent defect” of such an instruction is that the ability to assign a valid reason for a doubt is an ability “not given to many men.”

We have upheld a similar charge in the face of a constitutional challenge in State v. Derrico, 181 Conn. 151, 170-71, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980). As we said in Derrico, the “instruction essentially defined a reasonable doubt as a doubt founded on reason as contrasted with a purely speculative doubt.” Id., 171.

“‘It is well established . . . that individual instructions are not to be judged in artificial isolation from the overall charge.’ ” State v. Piskorski, 177 Conn. 677, 746, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979). “[T]he test to be applied to any part of a charge is whether the charge as a whole presents the case to the jury so that no injustice will be done.” State v. Derrico, supra, 170. The court provided additional guidance to the jury on the definition of reasonable doubt. The statement challenged by the defendant was not the only definition provided. The state argues that the challenged definition was merely one in which the jurors could test the reasonableness of a doubt and that therefore the charge, taken as a whole, provided sufficient guidance for the jury. We agree.

The second claimed error in the court’s instruction on reasonable doubt is in the following statement: “If you can, in reason, reconcile all the facts proven with any reasonable theory consistent with innocence, of course, you cannot find the defendant guilty. The conclusion of guilt requires proof which precludes every reasonable theory except that which tends to support and is consistent with the defendant’s guilt and inconsistent with any other rational conclusion. If the existence of all the facts and circumstances which you believe existed can be explained reasonably on some basis other than that the accused committed the crime charged, then the State has not made out a case. But if you find certain facts to be proven and if the only reasonable inference to be drawn from the existence of those facts is that the accused committed the crime charged, then you should not slink from drawing that inference and finding her guilty.”

The defendant claims that this statement did not “clearly instruct” the jury on the doctrine of proof beyond a reasonable doubt. The defendant also claims that the instruction was constitutionally infirm because it effectively told the jury that it “would have to be able” to reconcile all the facts to reach a verdict of not guilty. The instruction merely states that “[i]f you, [the jury], can, in reason, reconcile all the facts . . . .” This instruction by the trial court is but one method which the jury was told it could use to help it reach a verdict. The statement is a correct statement of the law. Immediately preceding the instruction on the doctrine of proof beyond a reasonable doubt the jury was given a detailed instruction on the state’s requirement that it prove every element of the crime.

We cannot say that, in view of the charge read as a whole, the portions now claimed as error on appeal can be considered a basis for finding harmful error. See State v. Derrico, supra; cf. State v. DelVecchio, 191 Conn. 412, 464 A.2d 813 (1983). The instructions were therefore not erroneous.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-134 (a) (4) provides: “robbery in the first degree: class b felony, (a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime ... (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged. Nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, robbery in the second degree, robbery in the third degree or any other crime.”
      General Statutes § 53a-8 provides: “criminal liability for acts of another. A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

       The appeal form, filed by trial counsel, stated that the appeal was being taken “from a jury verdict of guilty . . .” rather than from the judgment as required by General Statutes § 52-263. As this defect in form is not jurisdictional in nature, it may be disregarded. See State v. Kurvin, 186 Conn. 555, 556 n.1, 442 A.2d 1327 (1982).

       The record does not indicate that anyone other than the defendant was arrested in connection with the robbery or that any of the money was ever recovered.

       The farmer used three different eolors to describe the car to the police. A Dodge dealer told the police that Omnis are not available in tan but are available in two different shades of yellow. The witnesses at the trial who testified about the Omni gave varying descriptions of its color, but all were able to identify it as the car claimed by the state to have been used by the defendant.

       The 1981 Dodge Omni the defendant was driving on July 81,1981, had been borrowed from a friend who had rented it for several days.

       A police officer testified that Rumovicz’ initial description was of a white dress with a red, repetitive design.

       An in-court identification of the defendant, outside of the presence of the jury, was made by Rumovicz one day before the hearing on the motion was held. That identification was withdrawn by the state.

       Connor testified that the photograph was taken at the state police barracks the day the defendant was arrested. It was a Polaroid instant photograph with a profile of the right side of the defendant’s face and hair. There were no marks on the photograph indicating when, where, or for what purpose, it was taken.

       The factors include a consideration of: the witness’ opportunity to view; his degree of attention; the accuracy of his description; his level of certainty; and the time between the crime and the confrontation. Manson v. Brathwaite, 432 U.S. 98, 114-15, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977).

       The photo admitted into evidence was only of the right side of the defendant’s face and hair. There was no other person in the photograph.

       The defendant also claims, while admitting “precedent is squarely against her,” that the photo displayed to Robert Rumovicz, in the absence of her counsel, violated her federal and state constitutional rights. The defendant did not raise this issue below; Practice Book § 3063; and seeks to raise it on appeal under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). The question of when this photographic display actually took place, and hence, whether the defendant’s right to counsel had attached, is unanswered. The arrest by warrant itself does not start the initiation of adversary criminal proceedings. Kirby v. Illinois, 406 U.S. 682, 689, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972); State v. Vitale, 190 Conn. 219, 232, 460 A.2d 961 (1983). As no fundamental constitutional right has been implicated, this claim does not present an “exceptional circumstance” reviewable under Evans. See United States v. Ash, 413 U.S. 300, 321, 93 S. Ct. 2568, 37 L. Ed. 2d 619 (1973) (the sixth amendment does not grant the right to counsel, even if it has attached, at photographic displays conducted by the government for the purpose of allowing a witness to attempt an identification of the offender); State v. Ibraimov, 187 Conn. 348, 357, 446 A.2d 382 (1982).

       Our finding of no error on the trial court’s action on the motion to suppress makes unnecessary any discussion of the third claim in the defendant’s motion for a new trial that challenged the out-of-court identification procedures.

       The defense counsel had previously made the following remarks about the defendant’s background on closing argument: “Now, if the unfair identification procedure, if the alibi defense, if the time question together do not give you a reasonable doubt about whether Marguerite Findlay is a getaway driver, then how about looking at what you know about Marguerite Findlay. She’s 27 years old. She has a six-year old daughter who lives [with] and is cared for by her. She’s a high school graduate. She had a scholarship to UConn, where she went for two years. She was going to college full time at night. She’s been a volunteer worker with handicapped kids. She’s on the PTA; no criminal record whatsoever and a lousy driver, to boot. Now, this is hardly the profile of a getaway driver. Her mother doesn’t even want to drive in a car. It’s hard to believe that those two bank robbers are going to want her to be the driver of the car.”

       The portion of the court's instruction on the definition of reasonable doubt was as follows: “The phrase ‘reasonable doubt’ has no technical or unusual meaning. You can arrive at the real meaning of it by emphasizing the word ‘reasonable.’ A reasonable doubt for which a valid reason can be assigned; it is a doubt which is something more than a guess or a surmise. It is not a conjecture or a fanciful or a captious doubt. A reasonable doubt is not a doubt which is raised by someone simply for the sake of raising a doubt; nor is it a doubt suggested by ingenuity of counsel or of a juror which is not warranted by the evidence. A reasonable doubt, in other words, is a real doubt, an honest doubt, a doubt which has its foundation in the evidence or in the lack of evidence. It is such a doubt as in the series of affairs of your everyday life, you would pay heed to. Absolute certainty in the affairs of life is almost never attainable. And the law does not require absolute certainty on the part of the jury before it returns a verdict of guilty. The law does not require proof beyond all doubt. But the law does require that after hearing all the evidence, if there is something in the evidence or lack of evidence which leaves in the minds of the jurors, as reasonable men and women, a reasonable doubt as to the guilt of the accused, then the accused must be given the benefit of that doubt and acquitted.”


author: Peters, C. J. Arthur H. Healey, J.,

text:
    State of Connecticut v. Judson Brown
    (11470)
    Peters, C. J., Healey, Shea, Santaniello and Callahan, Js.

      Argued November 12, 1985
    decision released January 21, 1986

      JonL. Schoenhorn, special public defender, for the appellant (defendant).

      JohnM. Massameno, assistant state’s attorney, with whom, on the brief, were Austin J. McGuigan, former chief state’s attorney, Jerome O’Malley, former assistant state’s attorney, and John P. Zanini, legal intern, for the appellee (state).
   Peters, C. J.

The principal issue in this appeal is whether the defendant had a reasonable expectation of privacy, protected by the fourth amendment to the United States constitution and article first, § 7, of the Connecticut constitution, in a rented two-car garage. After a trial to the jury, the defendant, Judson Brown, was convicted of larceny in the first degree, in violation of General Statutes (Rev. to 1979) §§ 53a-119 (2) and 53a-122 (a) (2), and of falsely reporting the theft of a motor vehicle, in violation of General Statutes § 14-198, and was sentenced to a total effective term of imprisonment of from four to eight years. He appeals from this conviction.

The jury could reasonably have found the following facts. On the evening of January 11, 1980, a New Haven police officer discovered a partially stripped, white 1974 Mercedes Benz automobile abandoned in a parking lot. It was owned and had earlier been reported stolen by the defendant. At the time of its discovery, the car was missing a number of parts, including its two front doors and its marker plates. The defendant subsequently retrieved the recovered vehiele and filed a claim with his insurer, the Fireman’s Fund Insurance Company. After inspecting the car, the insurance company deemed it a total loss, paid the defendant its fair value, and took possession of the car and its title. When the insurance company subsequently had the car sold at auction, the defendant submitted the highest bid to repurchase the car, but never took possession of it. In October, 1980, the police discovered a number of the missing car parts in a garage rented by the defendant. The defendant was subsequently arrested and convicted of larceny.

On appeal from his conviction, the defendant raises two claims of error. He claims that: (1) the evidence presented was insufficient to support the verdict of guilty of larceny; and (2) the trial court should have granted his motion to suppress evidence seized from his rented garage pursuant to a warrant because the seizure was the result of an earlier illegal search. We find no error.

I

The defendant’s first claim of error is that the evidence presented at trial was insufficient to support the jury verdict of guilty of larceny in the first degree. The defendant was charged by information with violating General Statutes §§ 53a-119 (2) and 53a-122 (a) (2) by obtaining over $2000 from the Fireman’s Fund Insurance Company by fraud. The defendant concedes that there was sufficient evidence to establish that he had filed a claim with the Fireman’s Fund Insurance Company and that it in turn had issued checks payable to him in excess of $2000. He argues, however, that there was no evidence that he ever actually received either the checks or the money. Since obtaining the money is an essential element of the crime of larceny in the first degree, the defendant claims that his conviction on this count cannot stand. The defendant properly raised this claim before the trial court by a timely motion for acquittal which was denied.

Appellate review of such a claim requires us to undertake a two step analysis. “We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the jury’s verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt.” State v. Sinclair, 197 Conn. 574, 576, 500 A.2d 539 (1985); State v. Cimino, 194 Conn. 210, 211, 478 A.2d 1005 (1984). In this analysis, we make no distinction in probative force between direct and circumstantial evidence. State v. Sinclair, supra; State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984). “It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” State v. Perez, 183 Conn. 225, 227, 439 A.2d 305 (1981).

We conclude that the evidence presented was sufficient to support the jury’s verdict. At trial, the state presented the following evidence relevant to this issue. After the defendant’s 1974 Mercedes Benz automobile had been recovered with parts missing, the defendant retrieved it, brought it to his home and filed a claim with his insurer. In settlement of the claim, the insurance company declared the car a total loss and issued checks payable to the defendant and to the first lienholder on the car in the aggregate amount of $12,265.50, the fair market value of the car. After paying the defendant’s claim in full, the insurance company received title to the car from the defendant, took possession of the car, and, pursuant to its regular practice in such cases, turned it over to a salvage company.

In light of this evidence, we conclude that the trial court properly denied the defendant’s motion for acquittal. The jury could reasonably have concluded that the checks issued to the defendant had been received by him, and that he would not have turned over the car and its title to the insurance company if he had not received payment for it. The fact that other, more direct evidence on this issue might have been produced by the state, as the defendant suggests, does not in any way diminish the validity of the jury’s verdict. The jury considered the evidence as presented and drew a reasonable inference from it. Construed in the light most favorable to sustaining the verdict, the evidence was sufficient to support the jury’s conclusion.

II

The defendant’s next claim of error maintains that evidence seized from his rented garage pursuant to a search warrant should have been suppressed because the affidavit which supported the warrant had been tainted by an earlier illegal warrantless search. During the trial, the defendant moved to suppress this evidence. Testimony which preceded this motion established the following relevant facts. In August, 1980, a state police officer investigating a matter unrelated to the present case went to the defendant’s residence to interview him. At the time, the defendant was renting a second floor apartment in a two-family house. Another tenant lived in the first floor apartment. After receiving no answer at the front door, the police officer walked to the rear of the house and knocked on the back door. Again receiving no response, the police officer walked to a two-car garage on the property located approximately thirty feet behind the house. After calling out the defendant’s name and knocking on the garage door without receiving any response, the officer looked through one of the windows in the garage door to see if “there might have been somebody inside.” Although he saw no one there, he did notice “several white doors that appeared to be from a Mercedes and other auto parts.” The officer then left the premises. Approximately two months later, on October 21,1980, after further investigation, the police officer prepared an application for a search and seizure warrant to search the defendant’s garage. One fact used to establish probable cause in the application was the officer’s earlier observation of the white doors and auto parts in the defendant’s garage.

The defendant argues that the police officer’s initial observation of the auto parts through the garage window violated the defendant’s reasonable expectation of privacy in the interior of the garage and thus constituted a warrantless search without justification. Because the probable cause supporting the warrant was based in part on this illegal search, the defendant argues that all tangible evidence seized pursuant to the warrant should have been suppressed. At trial, in denying the defendant’s motion to suppress this evidence, the trial court found that the defendant did not have a reasonable expectation of privacy in the garage. Such findings by a trial court will not be upset unless they are “legally or logically inconsistent with the facts found or unless they involve application of an erroneous rule of law material to the case.” Dotson v. Warden, 175 Conn. 614, 619, 402 A.2d 790 (1978).

For the defendant to prevail on his claim we must resolve three issues in his favor: (1) that the defendant had a reasonable, constitutionally protected expectation of privacy in the two-car garage; (2) that the police officer’s action in looking through the window violated that expectation and constituted an illegal search; and (3) that this illegality tainted the subsequent warrant. Because we conclude that the defendant cannot prevail on the first of these issues, we need not address the latter two.

The defendant’s claim that he had a constitutional right to suppression of incriminating evidence depends upon a showing that the challenged search by the police violated the defendant’s rights under the fourth amendment to the United States constitution or article first, § 7, of the Connecticut constitution. Because the constitutional prohibition against unreasonable searches and seizures affords protection only against invasions of reasonable expectations of privacy; Rakas v. Illinois, 439 U.S. 128, 143, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978), reh. denied, 439 U.S. 1122, 99 S. Ct. 1035, 59 L. Ed. 2d 83 (1979); Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) (Harlan, J., concurring); State v. Zindros, 189 Conn. 228, 236-39, 456 A.2d 288 (1983), cert. denied, 465 U.S. 1012, 104 S. Ct. 1014, 79 L. Ed. 2d 244 (1984); our threshold inquiry is whether the defendant in fact possessed a reasonable expectation of privacy in the garage. Dow Chemical Co. v. United States, 749 F.2d 307, 311-12 (6th Cir. 1984); United States v. Bellina, 665 F.2d 1335, 1339 (4th Cir. 1981). Absent such an expectation, the subsequent police action has no constitutional ramifications.

The burden is on the defendant to prove that he had a reasonable expectation of privacy in the place that he alleges to have been unconstitutionally searched. Rawlings v. Kentucky, 448 U.S. 98, 104-105, 100 S. Ct. 2556, 65 L. Ed. 2d 633 (1980); Rakas v. Illinois, supra, 130 n.1; United States v. Gomez, 770 F.2d 251, 253 (1st Cir. 1985); United States v. Torres, 720 F.2d 1506, 1510 (11th Cir. 1983); United States v. Bellina, supra, 1340; United States v. Arboleda, 633 F.2d 985, 992 (2d Cir. 1980); State v. Callari, 194 Conn. 18, 23, 478 A.2d 592, cert. denied, 469 U.S. 1210, 105 S. Ct. 1178, 84 L. Ed. 2d 327 (1984); State v. Ford, 71 N.C. App. 748, 751, 323 S.E.2d 358 (1984); Abell v. Commonwealth, 221 Va. 607, 614, 272 S.E.2d 204 (1980). To sustain his burden in this case, the defendant must prove first, that he had an actual subjective expectation of privacy in the garage and, second, that his expectation was reasonable under the circumstances. Rakas v. Illinois, supra, 143; Katz v. United States, supra; State v. Zindros, supra, 239.

Whether a defendant has established the reasonableness of his expectation of privacy requires a fact-specific inquiry into all the relevant circumstances. Oliver v. United States, 466 U.S. 170, 177-78, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984); Go-Bart Importing Co. v. United States, 282 U.S. 344, 357, 51 S. Ct. 153, 75 L. Ed. 374 (1931); State v. Zindros, supra, 239-40. Although “the Fourth Amendment protects people, not places”; Katz v. United States, supra, 351; expectations of privacy in some places are afforded greater constitutional legitimacy than in others. Oliver v. United States, supra, 180-81 (no expectation of privacy in open fields); United States v. Chadwick, 433 U.S. 1, 12, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977) (lesser expectation of privacy in automobile); United States v. Bellina, supra, 1341 (lesser expectation of privacy in airplane). Privacy expectations are normally highest and are accorded the strongest constitutional protection in the case of a private home and the area immediately surrounding it. Oliver v. United States, supra, 178. Even in a private home, however, there is no absolute protection of privacy. “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” Katz v. United States, supra. Objects or activities located within a home which are visible to others in areas expressly or impliedly open to the public are not accorded fourth amendment protection because any privacy expectation in such exposed areas would be unreasonable. Lorenzana v. Superior Court, 9 Cal. 3d 626, 629, 511 P.2d 33, 108 Cal. Rptr. 585 (1973); 1 LaFave, Search and Seizure (1978) § 2.3 (c), pp. 301-303.

The search whose constitutionality is questioned in this case occurred in a garage in the proximity of a two-family house. Reasonable expectations of privacy are necessarily diminished in multi-family homes and multiunit buildings, by virtue of the presence in common areas of other tenants and their visitors; United States v. Holland, 755 F.2d 253, 255 (2d Cir. 1985); 1 LaFave, supra, pp. 306-309; but such expectations are not entirely extinguished. On the contrary, we recognize that, even in a multi-unit building, an individual tenant may have a constitutionally cognizable expectation of privacy in areas where his use is exclusive, that is, where he has the legal right to control access and to exclude others. See United States v. Holland, supra, 255-56 (legitimate expectation of privacy of apartment tenant exists only in an area subject to the tenant’s exclusive control); United States v. Arboleda, supra, 991 (apartment dweller’s legitimate privacy expectation exists in area where tenant has the right to exclude others); State v. Ragsdale, 381 So. 2d 492, 497 (La. 1980) (apartment dweller had reasonable expectation of privacy in completely enclosed patio outside his apartment unit); Commonwealth v. Hall, 366 Mass. 790, 794-95, 323 N.E.2d 319 (1975) (tenant has expectation of privacy in areas over which he can control access).

In the present case, however, the defendant has failed to sustain his burden of establishing that he had a legitimate privacy interest in the rented, two-car garage. The garage was rented by the defendant in conjunction with his rental of the second floor of the appurtenant two-tenant house. The defendant presented no evidence to show that his use of this garage was exclusive or that he exercised sole control oyer it. He established only that he rented the garage and that he had access to it. There was no evidence that his rental included both bays of the garage. There was likewise no evidence whatsoever concerning the relative rights of the landlord, of the first floor tenant, or of visitors to use the garage or the driveway leading up to it. Similarly, there was no evidence concerning the ownership of the car seen in the garage. In short, there was no evidence presented to establish that the defendant could reasonably have expected that objects placed in the garage would remain private.

In denying the defendant’s motion to suppress the seized auto parts, the trial court found that the defendant did not enjoy a reasonable expectation of privacy in the garage. In view of the defendant’s failure to establish that he was entitled to the exclusive use and control of the garage, we conclude that the trial court did not err in denying the defendant’s motion.

There is no error.

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

Arthur H. Healey, J.,

dissenting. I do not agree with the majority’s resolution of the issue raised by the trial court’s denial of the defendant’s motion to suppress; I would find that it was error to deny the motion to suppress.

I recognize, as I must, that the defendant had the burden on his motion to suppress of demonstrating a legitimate expectation of privacy which, in turn, is the necessary predicate to his claim of the violation of his fourth amendment rights. See, e.g., State v. Morrill, 197 Conn. 507, 542, 498 A.2d 76 (1985). I, however, also recognize that the determination of whether a person has exhibited a subjective expectation of privacy requires a factual determination in each particular case; State v. Zindros, 189 Conn. 228, 239-40, 456 A.2d 288 (1983), cert. denied, 465 U.S. 1012, 104 S. Ct. 1014, 79 L. Ed. 2d 244 (1984); and that this court does not find facts. Care must be taken, therefore, to examine whatever findings of fact that the trial court actually made in its decision to deny the motion to suppress.

The majority indicates that testimony which preceded the motion to suppress established the “facts” referred to by them. There was, however, additional testimony before the court when it denied this motion which I deem relevant to its disposition. In August, 1980, when the state police officer went to the defendant’s residence to interview him, and a woman who apparently resided there with him, he did so “in regard to a possible insurance fraud.” At that time, he was “the Auto Theft Investigator for the State Police.” (Emphasis added.) Prior to his visit to the defendant’s home, he had already been to an automobile recovery service that contracts with insurance carriers to sell for a fee recovered stolen or “totaled” motor vehicles. His visit to the service was in regard to “another case that [he] had been working on .... ” While there, the man who ran the recovery service “pointed out a white Mercedes and told [the state police officer that] it belonged to Judson Brown.” This was admittedly significant to this officer because, as he testified, “the vehicle had been stolen and after it was recovered [this recovery service] had got it and apparently Mr. Brown was trying to buy back the shell of the vehicle.” When he went to the defendant’s residence in August, 1980, he also had information from the New Haven police department that the defendant had reported his Mercedes stolen.

There were two doors at the front of the house in which the defendant resided. After having received no response when he knocked on one of the front doors, he knocked on the other door. A person answered and the officer ascertained that the defendant, as well as the woman he wished to interview, lived on the second floor. That person did not know at that time if the defendant and the woman were at home. The officer then went to the rear door and knocked. After receiving no response, he “went back and looked into the garage to see if anybody was back there.” When he got to the garage, he “hollered” the names of the defendant and the woman he was seeking and he “knocked” on the door of the garage. Receiving no response, he thereafter looked in through the window. He just looked through the garage window because he “thought there might have been somebody inside.” In doing so, he not only saw a motor vehicle but also “several white doors that appeared to be from a Mercedes and other auto parts.” These were of “significance” to him because of the earlier information he had received, particularly that from the recovery service. He then left the premises and did not return until sometime in the following month.

At the trial, the defendant argued that the officer, “at the time he made [the] observation” through the garage window, did not have the consent of Alphonso Brazzell, the owner of the property, or of the defendant to go back and look into the garage. The defendant further claimed that he had a reasonable expectation of privacy as to items in that garage. He argued that, therefore, the officer’s action at that time constituted a violation of his fourth amendment right to be free from any unreasonable search and seizure. An examination of the only affidavit attached to the application for the search warrant does not reflect at all the fact that the police officer had observed these same white doors and auto parts in August, 1980, when the defendant was not present. The transcript reveals that the theory upon which the motion was argued before the trial court was based on the propriety of the officer’s action in August, 1980, and not September, 1980. Both the state and the defendant presented the motion to the court in that posture and the court decided it on that basis. We should, therefore, rule on this issue on the same basis as it was presented, argued and decided in the trial court. See State v. McKnight, 191 Conn. 564, 578 n.14, 469 A.2d 397 (1983); Machiz v. Harman, 146 Conn. 523, 525, 152 A.2d 629 (1959). I cannot agree with the majority that the reference in the affidavit to a view of the garage by the officer in September, 1980, and a complete omission in the affidavit of the August, 1980 view is a mere “discrepancy” which there is no reason to address.

The majority points out that the trial court found that the defendant did not have a reasonable expectation of privacy in the garage and that “[s]uch findings by a trial court will not be upset unless they are ‘legally or logically inconsistent with the facts found or unless they involve application of an erroneous rule of law material to the case.’ Dotson v. Warden, 175 Conn. 614, 619, 402 A.2d 790 (1978).” See also State v. Zindros, supra, 242. The majority, citing certain testimony of Brazzell, the owner of the premises, concludes that the defendant has failed to sustain his burden of establishing that he had a legitimate right of privacy interest in the rented two-car garage. It goes on to maintain that the garage was rented by the defendant in conjunction with his rental of only the second floor of the appurtenant two-tenant house. I submit that neither Brazzell’s testimony nor any testimony on the motion to suppress establishes that fact and, moreover, the trial court made no such finding and the majority points to no such finding by the trial court because there is none. Brazzell, prior to testifying to his rental to the defendant, said that he had been a partner with the defendant in certain other New Haven real estate. Although that partnership did not include the premises involved here, it serves to implement an interpretation, other than the majority’s, of the nature of the defendant’s tenancy on the subject premises. Brazzell, after describing the locus in quo as consisting of “a two-car garage, a two-family house,” was then immediately thereafter asked by the state: “Do you rent that property?” (Emphasis added.) He answered: “Yes, I do.” He was then asked: “And to whom do you rent ii?” (Emphasis added.) He answered: “To Judson Brown.” The trial court made no finding that demonstrates that Brazzell rented only one floor and one bay of the garage to the defendant; it made no finding specifically as to whom what was rented and there is no evidence referred to, on the motion to suppress, except that Brazzell rented “that property” (a two-car garage and a two-family house) to the defendant. I, therefore, differ with the majority’s statements that all the defendant established was that he rented the garage and that he had access to it; the court made no such finding. Insofar as the majority maintains that there was “no evidence whatsoever that his rental includes both bays of the garage,” I submit that, in the absence of a finding, Brazzell’s testimony about what he rented to the defendant can reasonably only be construed to mean the whole garage. Viewed in this fashion, the defendant’s possession and control of the house and the garage are much more enhanced constitutionally than the majority would concede. This is not a technical conveyancing argument; Brazzell simply said that he rented the property, a two-family house and a two-car garage, to the defendant. He did not say he rented one floor and one garage. This uncontradicted testimony adds a new dimension to the analysis.

I agree with the majority when they say that in order for the defendant to prevail on his claim, three issues must be resolved in his favor: (1) that the defendant had a reasonable, constitutionally protected expectation of privacy in the “two-car” garage; (2) that the police officer’s action in looking through the window violated that expectation and constituted an illegal search; and (3) that this illegality tainted the subsequent warrant. Unlike the majority, I believe all three of these issues must be addressed.

With reference to the first issue, this defendant did, as a matter of law, demonstrate that he had an actual subjective expectation of privacy in the garage and that his expectation was reasonable under the circumstances. Justice Harlan’s formulation of the expectation of privacy test in Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), is that most frequently applied since Katz. While it speaks of a subjective expectation of privacy, the actual exhibition of that “subjective expectation” is judged by objective standards. See, e.g., United States v. Brock, 667 F.2d 1311, 1320 n.8 (9th Cir. 1982); United States v. Sledge, 650 F.2d 1075, 1077 (9th Cir. 1981). The garage itself was on property rented to him, according to the uncontradicted testimony. I recognize that “common law property concepts are not particularly illuminative of Fourth Amendment problems”; United States v. Johnson, 561 F.2d 832, 841 n.10 (D.C. Cir.), cert. denied, 432 U.S. 907, 97 S. Ct. 2953, 53 L. Ed. 2d 1080 (1977); “[b]ut at least with respect to the home and the surrounding curtilage the protections traditionally accorded from the time of the common law have bearing on the inquiry as to reasonable expectation of privacy.” Id., 845 (Leventhal, J., concurring). Indeed, the United States Supreme Court has only recently reaffirmed this principle. Oliver v. United States, 466 U.S. 170, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984). The garage itself, whether or not part of its structure could be seen from the street, was on a nonpublic portion of property that the defendant rented. “The [Fourth] Amendment reflects the recognition of the Founders that certain enclaves should be free from arbitrary government interference. . . . Thus, courts have extended Fourth Amendment protection to the curtilage [the land immediately surrounding and associated with the home]; and they have defined the curtilage, as did the common law, by reference to the factors that determine whether an individual reasonably may expect that an area immediately adjacent to his home will remain private.” (Citations omitted.) Oliver v. United States, supra, 178-80. Garages have been accorded such protection. See, e.g., Bies v. State, 76 Wis. 2d 457, 251 N.W.2d 461 (1977). The garage was not a step or two or three from the rear door of the house, but was approximately thirty feet back away from the house in the rear of the premises. The garage itself was closed, reflecting a reasonable expectation of privacy as to the interior of the garage. Id. A vehicle was in it. There was absolutely no evidence at all of any activity, voices or otherwise, in or about the garage that caused the officer to exceed the area of permissible invitation on the premises and traverse those approximately thirty feet to do what he did when he got there. I recognize that, ordinarily, an officer of the law who goes onto private property, while investigating a crime, is not a trespasser. See, e.g., United States v. Knight, 451 F.2d 275 (5th Cir. 1971), cert. denied sub nom. Grubbs v. United States, 405 U.S. 965, 92 S. Ct. 1171, 31 L. Ed. 2d 240 (1972). I also agree that an officer’s entry into private property for the purpose of a general inquiry or interview is generally proper. See, e.g., United States v. Brown, 457 F.2d 731 (1st Cir.), cert. denied, 409 U.S. 843, 93 S. Ct. 42, 34 L. Ed. 2d 82 (1972). However, where an officer steps out of that status, in the absence of exigent circumstances; see United States v. Van Dyke, 643 F.2d 992, 993 (4th Cir. 1981); and travels thirty feet to a closed garage situated in the rear of the house lot, that privileged status is lost. Especially is this true where, as stated, there was no activity of any sort to suggest remotely that a person or persons were in that garage.

“[Property rights reflect society’s explicit recognition of a person’s authority to act as he wishes in certain areas and therefore should be considered in determining whether an individual’s expectations of privacy are reasonable.” Rakas v. Illinois, 439 U.S. 128, 153, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978). The common law property right to exclude others from, at the very least, that portion of the property to which the public is not invited creates a legitimate expectation of privacy that merits protection. Certainly this defendant had a property right in the closed garage and its approaches, at least from the rear of the house, that was superior to the public and to this police officer, who was not operating under exigent circumstances. I recognize that “ [undoubtedly, the test of ‘reasonable expectation of privacy’ has to be addressed in any evaluation of a police officer’s entry onto private property.” United States v. Johnson, supra, 851. When one asks what more could have reasonably been done by the defendant to exhibit an actual subjective expectation of privacy in this garage, which itself is an expectation that society is prepared to recognize as reasonable, one is indeed sorely pressed.

When the officer looked in the garage window after having received no response to his knock or to his hollering, he violated that reasonable expectation and, vantaged as he was, what he saw constituted a search in violation of the fourth amendment. Simply put, he was not properly where he was when he saw what he did through the garage window. Whatever license he had to be on the premises no longer existed at that time and place, and he was, as a matter of law, within the fair intendment of the fourth amendment, a trespasser. The state’s argument at trial that the “plain view” doctrine was applicable, therefore, lacks merit if for no other reason than that the officer did not have a legally cognizable justification to be in the position from which his view was taken. Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564, reh. denied, 404 U.S. 874, 92 S. Ct. 26, 30 L. Ed. 2d 120 (1971); State v. Altrui, 188 Conn. 161, 179, 448 A.2d 837 (1982); see State v. Onofrio, 179 Conn. 23, 39, 425 A.2d 560 (1979). This was a “search” as that “occurs when an expectation of privacy that society is prepared to consider reasonable is infringed.” United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984); cf. State v. Onofrio, supra. This warrant-less search, therefore, did not fall within those fourth amendment exceptions which are “jealously and carefully drawn.” Jones v. United States, 357 U.S. 493, 499, 78 S. Ct. 1253, 2 L. Ed. 2d 1514 (1958).

An examination of the officer’s affidavit attached to the application for the search warrant that was ultimately issued, after a later interview in September, 1980, by this officer with the defendant, discloses the focal nature of the information acquired by the fourth amendment violation in August, 1980, and not September, 1980, as elucidated above. In my view it so tainted the search warrant that the physical evidence in fact obtained because of it should have been suppressed.

As addressed above, the test of “reasonable expectation of privacy” has to be addressed in any evaluation of a police officer’s entry onto private property. It is also undoubtedly true that “[i]f policemen are to serve any purpose of detecting and preventing crime by being out on the streets at all, they must be able to take a closer look at challenging situations . . . .” Dorsey v. United States, 372 F.2d 928, 931 (D.C. App. 1967); see Commonwealth v. Cavanaugh, 366 Mass. 277, 281, 317 N.E.2d 980 (1974). This case, especially in the complete absence of exigent circumstances, did not constitute that, type of challenge, resulting as it did in a fourth amendment violation. “When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.” Johnson v. United States, 333 U.S. 10, 14, 68 S. Ct. 367, 92 L. Ed. 436 (1948); United States v. Knotts, 460 U.S. 276, 282, 103 S. Ct. 1081, 75 L. Ed. 2d 55 (1983). The failure to suppress in this case is “to procure an eminent good [i.e., crime prevention] by means that are unlawful, [and] is as little consonant to private morality as to public justice.” Carroll v. United States, 267 U.S. 132, 163, 45 S. Ct. 280, 69 L. Ed. 543 (1925) (McReynolds, J., dissenting).

I, therefore, dissent and would find error in the denial of the defendant’s motion to suppress.

       The fourth amendment to the United States constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

       Article first, § 7, of the Connecticut constitution provides: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.”

       At the time of the offense, General Statutes § 53a-119 (2) provided: “Sec. 53a-119. larceny defined. A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. Larceny includes, but is not limited to .... (2) Obtaining property by false pretenses. A person obtains property by false pretenses when, by any false token, pretense or device, he obtains from another any property, with intent to defraud him or any other person.”
      At the time of the offense, General Statutes § 53a-122 (a) (2) provided: “larceny in the first degree: class b felony, (a) A person is guilty of larceny in the first degree when ... (2) the value of the property or service exceeds two thousand dollars.”

       General Statutes § 14-198 provides: “false report. A person who knowingly makes a false report of the theft or conversion of a vehicle to a police officer or to the commissioner shall be fined not more than five hundred dollars or imprisoned not more than six months or both.”

       We reject the state’s argument that the defendant waived his right to make this claim because he had failed to object to earlier testimony by the police officer concerning the circumstances of his observation of the interior of the garage. See State v. Girolamo, 197 Conn. 201, 207-208, 496 A.2d 948 (1985).

       The warrant application refers to a view of the garage by the police officer on September 4,1980, at which time he spoke to the defendant. It does not contain a reference to the view in August, 1980, which is at issue here. In view of our disposition of this claim, there is no reason to address the discrepancy.

       At oral argument before this court, defense counsel repeatedly stated that the record established that the defendant had the exclusive use of the garage. A review of the record provides no support for this claim. Counsel referred the court to testimony by the owner of the apartment house and garage:
      “Q. . . . Mr. Brazzell, do you own a property at 51 Frank Street in New Haven?
      “A. Yes, I do.
      “Q. And what [does] that property consist of?
      “A. It consists of a two-car garage, a two-family house.
      “Q. Do you rent that property?
      “A. Yes, I do.
      “Q. And to whom do you rent it?
      “A. To Judson Brown.”
      Additionally, later testimony by the police officer revealed that, in September, 1980, the defendant “told me he had access to the garage.”
      In view of testimony that someone other than the defendant occupied the first floor of the apartment house, the above statements can best be described as ambiguous. The trial court reasonably could have concluded that this evidence falls far short of establishing that the defendant had sole and exclusive use of both bays of the two-car garage.

       The police officer testified that, when he looked into the garage in August, he saw a “vehicle.” However, he stated that he did not know who owned it. There was no further testimony concerning the ownership of this particular vehicle.

       The defendant also claims that his rights were violated because the garage was part of the curtilage of the house and thus entitled to special fourth amendment protection. The common law concept of curtilage, however, does not provide a separate basis for fourth amendment protection. It simply refers to areas immediately surrounding the home in which expectations of privacy are normally the greatest. Curtilage has been defined “by reference to the factors that determine whether an individual reasonably may expect that an area immediately adjacent to the home will remain private.” Oliver v. United States, 466 U.S. 170, 180, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984). The focus remains the reasonable expectation of privacy which an individual possesses in the area. Our finding that the defendant failed to establish that he had a reasonable expectation of privacy in the garage defeats his claim regardless of how it is labeled.

       On this record, it appears that the only affidavit attached to the application for the search warrant was that of the state police officer who was at the defendant's premises in August, 1980.

        Dotson v. Warden, 175 Conn. 614, 619, 402 A.2d 790 (1978), articulated the standard of review before we announced our “clearly erroneous” standard in State v. Zindros, 189 Conn. 228, 456 A.2d 288 (1983), cert. denied, 465 U.S. 1012, 104 S. Ct. 1014, 79 L. Ed. 2d 244 (1984). Practice Book § 3060D had not been promulgated at the time Dotson was decided.

       Brazzell did not testify nor was he asked if the first floor tenant rented directly from him or from the defendant.