text:
    State of Connecticut v. Charles Jones
    (13070)
    Peters, C. J., Healey, Shea, Glass and Covello, Js.
    Argued November 4, 1987
    decision released January 5, 1988

      Francis T. Mandanici, for the appellant (defendant).

      C. Robert Satti, Jr., assistant state’s attorney, with whom, on the brief, was Donald A. Browne, state’s attorney, for the appellee (state).
   Shea, J.

A jury found the defendant guilty of murder in violation of General Statutes § 53a-54a (a). In this appeal from the judgment rendered in accordance with the verdict, the defendant claims that the trial court erred: (1) in not excluding the testimony of the state’s alibi impeachment witness where the state was late under Practice Book § 764 in disclosing his identity; (2) in failing to grant his motion for a new trial when the prejudice of the late disclosure was established at the hearing on this motion; (3) in failing to allow the defendant to present evidence explaining his flight; (4) in allowing the jury to hear, and then in failing to strike, the testimony of a witness who strongly implied that the defendant had scared away the witness’s daughter from appearing in court to testify for the state; (5) in allowing the state to cross-examine two defense witnesses regarding whether they had previously told their pastor about the content of their testimony. We find no reversible error.

The jury could have reasonably found from the evidence that on July 15, 1984, the defendant shot and killed Wally Blake in a pool hall on Stratford Avenue in the city of Bridgeport. Tony Carswell testified for the state on direct examination that he saw the defendant shoot Blake in the head. Andrew Winstead testified at the trial that he did not see any shooting. The state, however, introduced his prior testimony, given at a probable cause hearing, and his prior written statement to the police, in which he indicated that the defendant had shot the victim in the head. Because this case was tried after our decision in State v. Whelan, 200 Conn. 743, 747-55, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 1598 (1986), had been released, the jury was entitled to consider Winstead’s prior inconsistent testimony and written statement for their substantive value. Officer James Cook saw the defendant’s white Buick parked outside the pool hall at the time of the shooting, and noticed that the car was gone about seven minutes later. The defendant admitted he fled from the general vicinity after the shooting took place, but claimed he was 300 feet from the pool hall when the fatal shot was fired.

I

The defendant first claims that the trial court erred in not excluding the testimony of the state’s alibi impeachment witness, Tony Carswell, when the state was late under Practice Book § 764 in disclosing his identity. In light of the defendant’s failure to seek a continuance for the purpose of further investigation when the state disclosed Carswell’s identity, we find no error in this ruling.

On April 21,1986, the state filed a demand pursuant to Practice Book § 763 requiring the defendant to disclose whether he intended to present an alibi defense. The defendant on May 5, 1986, disclosed his alibi defense. He claimed that he had been 300 feet away from the shooting, and revealed the name and address of a defense alibi witness, Keith Jefferson. The state on June 13,1986, filed a disclosure revealing the name of Andrew Winstead as a witness to prove the defendant’s presence at the scene of the crime. Practice Book § 764. A supplemental disclosure of witnesses was made by the defendant on June 18, 1986, and July 3, 1986. The state, however, did not reveal the name of Tony Carswell as an alibi rebuttal witness until October 3,1986, the date on which the voir dire of prospective jurors commenced.

Practice Book § 764 imposes the following requirement on the state concerning the disclosure of alibi impeachment witnesses: “If the written demand and notice have been filed pursuant to Sec. 763, the prosecuting authority, within ten days after filing of the notice, but in no event less than ten days before the trial unless the judicial authority otherwise directs, shall file a written notice stating the names and addresses of the witnesses upon whom the state intends to rely to establish the defendant’s presence at the scene of the alleged offense and any other witnesses to be relied upon to rebut testimony of any of the defendant’s alibi witnesses.”

The state contends that Practice Book § 764 did not require it to disclose the identity of Carswell until October 3, 1986, when jury selection for the trial began. The Bridgeport police on July 24, 1984, took a written statement from Carswell in which he claimed that he had seen the defendant shoot the victim in the head. The state argues that it was not required to disclose Carswell’s name because he had indicated to both the state and the defense that he would not testify. The state contends that it is only obliged to disclose the identity of alibi impeachment witneses who will testify, not those who may testify. The state also maintains that it was only after this court had released its decision in State v. Whelan, supra, on August 5, 1986, that it became possible for the state to use Carswell’s statement to the police made on July 24, 1984, as substantive evidence, if he should deny on the witness stand that he had seen the defendant shoot the victim. Even if this court were to accept the state’s arguments concerning the impact of State v. Whelan, supra, on the case at bar, the state should have disclosed Carswell’s identity within ten days of the release of that decision.

Our interpretation of Practice Book § 764 is that the state must disclose the identity of an alibi impeachment witness when that witness has given a written statement to the police in which he asserts that he has seen the defendant commit the crime charged even though the state is uncertain whether it will call him to testify. We need not decide under what other circumstances the state may be required by Practice Book § 764 to disclose the identity of an alibi impeachment witness where the state is not sure whether it will call that witness. We note, however, that the requirements of Practice Book § 764 cannot depend on the subjective intentions of the state regarding whether it may call a particular alibi impeachment witness. Even in the absence of a written statement from such a witness the state would be well advised in the future to disclose his identity promptly if there is a reasonable possibility that the state may call him to testify at trial.

While we hold that the state should have disclosed the identity of Carswell before the jury voir dire commenced, we conclude that the trial court did not abuse its discretion in permitting him to testify at the trial. See State v. Boucino, 199 Conn. 207, 214-16, 506 A.2d 125 (1986). The trial court permitted defense counsel to interview Carswell the weekend before he testified. The defendant was able to impeach Carswell’s credibility by disclosing that he had twelve convictions. If the defendant believed that the state’s late disclosure of its alibi impeachment witness was prejudicial, he should have requested a continuance. The defendant never made such a request. In fact, when the issue of Carswell’s late disclosure was discussed during the trial, defense counsel stated: “[A]ny further delay would be substantially prejudicial to us.” The defendant contends that he was not required to seek a continuance because his motion for a speedy trial had been granted on October 1,1986, but we can find no authority to support this novel proposition. In this case the state’s late disclosure was not of constitutional significance. The proper remedy under the circumstances would have been a continuance. “If the defendant felt that he had insufficient time to prepare, his remedy would have been to request a continuance, which he did not do.” State v. Villafane, 171 Conn. 644, 669, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S. Ct. 1137, 51 L. Ed. 2d 558 (1977), overruled in part on other grounds, State v. Stepney, 191 Conn. 233, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984).

II

The defendant next claims that the trial court erred in failing to grant his motion for a new trial when the prejudice of the late disclosure was established at the hearing on the motion.

The jury found the defendant guilty of murder on October 21, 1986. The defendant filed a motion for a new trial under Practice Book § 902 on October 24, 1986. This motion again raised the issue of the trial court’s failure to exclude Carswell’s testimony because of the state’s late disclosure of his identity. On November 21, 1986, the defendant filed an addendum to his motion for a new trial in which he set forth allegedly newly discovered evidence in the form of a signed affidavit of Judy Grant. The trial court held a hearing regarding this motion on November 25, 1986.

Because we have determined that the trial court did not abuse its discretion in allowing Carswell to testify despite the state’s late disclosure, we need not further consider that aspect of this claim. The defendant at the November 25,1986 hearing sought to introduce the testimony of Grant concerning her affidavit submitted to the trial court as part of the defendant’s addendum motion on November 21,1986, that she was with Carswell at the time of the shooting, and that he was not near the pool hall. The state objected to allowing Grant to testify about the events of July 15,1984, and argued that under a Practice Book § 902 motion the defendant could inquire only why she had not testified at the trial during October, 1986. The trial court sustained the state’s objection. We conclude that the trial court properly limited the scope of Grant’s testimony.

There is a significant difference between Practice Book §§ 902-903 and 904. Practice Book § 902 is concerned with motions for a new trial based on errors committed during the trial. Section 903 requires that a § 902 “motion for a new trial be made within five days after a verdict or finding of guilty . . . .’’On the other hand, § 904 provides: “A request for a new trial on the ground of newly discovered evidence shall be called a petition for a new trial and shall be brought in accordance with Gen. Stat., § 52-270.” A party has three years to bring a petition for a new trial. General Statutes § 52-582.

We have distinguished between a petition and a motion for a new trial in regard to their appealability as final judgments. State v. Asherman, 180 Conn. 141, 143, 429 A.2d 810 (1980). Moreover, a different standard of review applies in these two separate procedures for seeking a new trial. To obtain a new trial through a § 904 petition, a defendant must overcome a “strict standard” including a requirement that the newly discovered evidence be “likely to produce a different result in a new trial.” Asherman v. State, 202 Conn. 429, 434, 521 A.2d 578 (1987). The standards for determining whether a trial error should result in a new trial under Practice Book § 902 are as follows: “Upon motion of the defendant, the judicial authority may grant him a new trial if it is required in the interests of justice. Unless the defendant’s noncompliance with these rules or with other requirements of law bars his asserting the error, the judicial authority shall grant the motion: (1) For an error by reason of which the defendant is constitutionally entitled to a new trial; or (2) For any other error which the defendant can establish was materially injurious to him.” The defendant concedes that there are substantial differences between Practice Book §§ 902 and 904.

The trial court did not err when it refused to allow Grant to testify concerning the events of July 15,1984. A motion for a new trial under Practice Book § 902 is limited to trial errors, and cannot be based upon newly discovered evidence. The trial court during the trial was not even aware of Grant’s existence, so it could not have erred regarding any testimony she might have given about the crime. The defendant must bring a petition under § 904 if he wishes to seek a new trial based on newly discovered evidence.

Ill

The defendant claims that the trial court erred in failing to allow him to present evidence explaining his flight from the scene of the crime and subsequent absence from his residence. We agree that the ruling was incorrect, but conclude that this error was harmless in nature.

After an objection from the state on hearsay grounds, the trial court prevented the defendant’s sister, Alisa Brooks, from testifying regarding alleged threats by the victim’s family against the defendant. She sought to testify that she had relayed these threats to the defendant. Later, after another objection by the state on hearsay grounds, the trial court prevented the defendant from testifying as to what others had told him regarding such threats.

The trial court should have overruled the state’s objections to questions concerning the threats made by-others to the defendant, either directly or through his sister, Alisa Brooks. The defendant did not offer this testimony for the truthfulness of the threats, but for its effect on the defendant’s state of mind regarding flight. Out-of-court statements to a person are admissible to show his state of mind where his mental state is relevant. State v. Brokaw, 183 Conn. 29, 32, 438 A.2d 815 (1981); Zenik v. O’Brien, 137 Conn. 592, 598, 79 A.2d 769 (1951). A person’s “state of mind” can be shown “from what he heard as well as from what he saw, even though what he heard would be normally classified as hearsay. . . . The evidence [concerning a third party’s statement to the witness] was admissible not to establish the truth of the facts asserted but to show what was in the defendant’s mind in testing the reasonableness of his belief . . . . ” (Citations omitted.) Zenik v. O’Brien, supra, 598.

The defendant argues that the trial court’s error in restricting the defendant’s evidence explaining his flight deprived him of his due process right to present a defense. He argues that the burden is on the state to prove that this error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied, 386 U.S. 987, 87 S. Ct. 1283, 18 L. Ed. 2d 241 (1967). Despite these claims, we conclude that the trial court’s error in this regard was not of constitutional magnitude.

Whether a trial court’s erroneous restriction of a defendant’s or defense witness’s testimony in a criminal trial deprives a defendant of his due process right to present a defense is a question that must be resolved on a case by case basis. See State v. Bryant, 202 Conn. 676, 704, 523 A.2d 451 (1987). In the case at bar, the defendant was able to introduce evidence supporting his contention that his flight was the result of his fear of the victim’s family. The defendant testified, “[Blake’s mother, brother, and cousins were] out there talking about what they [were] going to do to me if I showed up.” The defense counsel asked the defendant, “Are you telling us there was a reason why you were afraid to go home?” The defendant replied “yes” to that question. The defendant then testified as follows, “I couldn’t go home . . . [b]ecause people [were] laying on the front waiting for me.” Despite the trial court’s erroneous ruling concerning the flight testimony, the defendant was able to present his explanation that fear motivated his flight. Under the circumstances of this case, the trial court did not deprive the defendant of his due process right to present a defense.

When a trial error in a criminal case does not involve a constitutional violation the burden is on the defendant to demonstrate the harmfulness of the court’s error. State v. Ruth, 181 Conn. 187, 196-97, 435 A.2d 3 (1980). The defendant must show that it is more probable than not that the erroneous action of the court affected the result. Id.; State v. McClain, 171 Conn. 293, 300, 370 A.2d 928 (1976). In view of the defendant’s testimony that his fear of the victim’s family motivated his flight, it cannot be said that this error probably affected the result of the trial.

IV

The defendant also claims that the trial court erred in allowing the jury to hear, and then in failing to strike, testimony that may have implied that the defendant had intimidated a potential witness from appearing in court to testify for the state. We agree that the ruling was erroneous but conclude that the error was harmless.

Clara Bullock testified for the state before the jury that her daughter, Regina Bullock, had two children by the defendant. After the witness testified that she had seen her daughter the previous evening, the defendant objected to the questions concerning Regina Bullock on the ground that they were irrelevant because the daughter had never been mentioned as a witness. The state made an offer that this line of questioning was relevant to rebut a missing witness argument or instruction that might later be made or requested by the defendant. Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960). The defendant also asserted that this kind of testimony ought to be heard outside the presence of the jury. The trial court overruled the defendant’s objections, and noted an exception. Clara Bullock testified that a policeman had left a subpoena for her daughter. She then testified, “Regina was scared to come down here. . . . She’s scared to come down here to appear in court.” The trial court then sua sponte stopped her from elaborating on the fact that her daughter was scared. The defendant did not object further at this time, but, shortly after the conclusion of Clara Bullock’s testimony, he moved to have her entire testimony stricken, and to have the trial court admonish the jury not to consider it. The trial court ruled that her testimony was relevant to the missing witness issue, and denied this motion. An exception was properly taken.

We agree with the defendant that the evidence concerning the missing witness issue should have been heard initially outside the presence of the jury. We have held that any party intending to argue to the jury that an unfavorable inference should be drawn from the absence of a particular witness must seek advance permission from the trial court. State v. Williams, 195 Conn. 1, 14, 485 A.2d 570 (1985); State v. Daniels, 180 Conn. 101, 113, 429 A.2d 813 (1980). The purpose of requiring such a ruling in advance is to prevent a jury from hearing prejudicial matters that may later be excluded by the court’s ruling. It follows that evidence pertaining to a missing witness, not otherwise relevant, should also be presented in the absence of the jury. The denial by the trial court of the defendant’s request to excuse the jury while the admissibility of the evidence concerning Regina Bullock was under consideration, therefore, was erroneous.

Because the trial court ultimately found admissible Clara Bullock’s testimony that her daughter was “scared to come down here to appear in court,” it is of no consequence in this case that the jury heard the testimony before the ruling was made. The propriety of the ruling, however, remains for our consideration. The state has not advanced any reasonable basis to support its contention that the jury might have drawn an adverse inference from its failure to produce Regina Bullock as a witness unless this evidence of her unavailability had been allowed. As the defendant’s girlfriend and mother of his children, she was hardly “one whom [the state] would naturally be expected to produce.” State v. Daniels, supra, 108. “A witness who would naturally be produced by a party is one who is known to that party and who, by reasons of his relationship to that party or to the issues, or both, could reasonably be expected to have peculiar or superior information material to the case which, if favorable, the party would produce.” Secondino v. New Haven Gas Co., supra. At the time of the ruling there had been no showing that Regina Bullock had any knowledge related to the crime. If the defendant’s objection to the evidence of her unavailability had been sustained, he could not later have argued or requested a charge that an unfavorable inference should be drawn from the state’s failure to produce her as a witness. It is possible, of course, that a jury may draw such an inference on its own without the benefit of argument or instruction, but the circumstances of this case make that possibility extremely remote. We conclude that the trial court erred in overruling the defendant’s objection to this testimony.

We have recently held that an erroneous missing witness charge at a criminal trial “engenders a claim arising under state law and does not involve any constitutional right” and that, accordingly, “the defendant bears the burden of proving harmful error.” State v. Shashaty, 205 Conn. 39, 44, 529 A.2d 1308 (1987). “[T]he defendant must show that the charge was likely to have affected the verdict.” Id. We deem the same standard appropriate in assessing the harmfulness of the trial court’s error in admitting the testimony concerning Regina Bullock's unwillingness to testify. The thrust of the defendant’s argument is that the testimony that “she’s scared to come down here to appear in court” might have indicated to the jury that the defendant had threatened her in order to keep her from testifying. This possibility, however, was not mentioned at the time the defendant raised his objection. The trial court may well have assumed that the word “scared” suggested no more than the understandable reluctance of many people to appear in court, especially when the trial involves someone close to them. It is not claimed that the state during argument before the jury contended that the defendant had “scared” this witness from testifying. No charge concerning the conduct of the defendant toward Regina Bullock as evidence “inconsistent with innocence” was requested or given. See State v. Holliday, 159 Conn. 169, 173, 268 A.2d 368 (1970).

The defendant has attempted to buttress his claim of harmfulness by referring to testimony much later in the trial concerning Regina Bullock. During the defendant’s presentation of evidence the state cross-examined his sister, Alisa Brooks, as to whether the defendant had told her that he had spoken to Regina after the crime had occurred and had admitted that he had shot the victim. Brooks denied that any such conversation had taken place. No objection was raised to this examination. When the defendant testified, the state also asked him whether he had spoken with Regina about the shooting and had told her of his involvement in the crime. The defendant did object to this question without stating his ground, but failed to except to the overruling of his objection as required by Practice Book § 288 in order to preserve the ruling for appeal. At no point during the trial did the defendant claim, as he does on appeal, that the potential harmfulness of the testimony that Regina Bullock was “scared to come down here to appear in court” had been accentuated by the state’s cross-examination concerning a possible conversation between her and the defendant. Since both the defendant and his sister denied knowledge of any such conversation, it would be highly speculative to assume that the jury somehow inferred from the use of the word “scared” by Clara Bullock that the defendant had intimidated Regina Bullock in order to keep her from testifying. We conclude that the defendant has not adequately demonstrated that the erroneous failure to exclude the testimony of Clara Bullock was sufficiently harmful to have affected the outcome of the trial.

Y

The defendant’s final claim is that the trial court erred in allowing the state to cross-examine defense witnesses regarding whether they had previously told their “pastor” about the content of their testimony. Although the defendant at trial objected only upon the ground of relevance, he now claims that these questions deprived him of his rights to due process, to a fair trial, to freedom of religion, and to equal protection of the laws. We disagree with these claims because the state’s questions may reasonably be construed as designed to elicit whether these witnesses had reported their alibi evidence to a person in a position of authority before the trial rather than to discredit these witnesses by calling attention to their religious affiliations or lack thereof.

The state’s attorney asked Brenda Dunham whether she had gone to the police with her purported alibi evidence. She replied in the negative. Then the state’s attorney asked her, “Did you ever tell your church clergyman, pastor, or minister . . . [d]id you ever talk to your church?” After the defendant’s objection had been overruled, she answered, “I haven’t been to church.” Later, the state’s attorney asked Keith Jefferson whether he had ever gone to the police to tell them that the defendant was innocent. He replied: “No.” The next question was: “Did you ever go to any member of your church such as [a] pastor or clergyman?” Jefferson responded: “No, never did.”

The state’s attorney was seeking to explore whether these two witnesses had ever told any person in authority about their purported alibi evidence when he questioned them concerning whether they had reported this information to a pastor. After the state’s attorney had questioned Dunham about communicating with her pastor, he then asked her: “Did you ever talk to any official at all . . . to let them know an innocent man was being charged with a crime, ma’am?” She answered: “No, I tried to find his sister.” After questioning Keith Jefferson about whether he had ever talked with his pastor about the defendant’s innocence, the state's attorney went on to ask whether Jefferson had ever discussed this alibi evidence with “any alderman,” “any fireman,” or “any type of authority.”

In State v. Ghere, 201 Conn. 289, 303-304, 513 A.2d 1226 (1986), this court upheld a ruling permitting, over an objection on the ground of relevancy similar to that raised in this case, cross-examination of alibi witnesses as to whether they had informed the police that at the time the crime had occurred they had seen the defendant at a location far from the scene of the crime. “Although we do not believe that an alibi witness has a duty to report an alibi story to the police or, for that matter, to any other person, a witness in many instances naturally may be expected to convey such information, especially when the witness is friendly with the accused. Failure of the witness to do so would, under these circumstances, constitute grounds for impeachment.” Id., 304. In State v. Mullings, 202 Conn. 1, 14-15, 519 A.2d 58 (1987), we rejected a claim that such cross-examination implicates a fundamental constitutional right, such as the right to due process, a fair trial, or an opportunity to present a defense. “We have never recognized any fundamental right of a defendant not to have his witnesses discredited.” Id., 15. In State v. Bryant, 202 Conn. 676, 704, 523 A.2d 451 (1987), we recognized that the due process right to present a defense included the right to present alibi witnesses. We noted, however, that “there are few, if any, per se prohibitions on questioning such a witness.” Id. For the purpose of a retrial of the case ordered on other grounds, we advised of the necessity of establishing a proper foundation for this kind of cross-examination.

Our previous decisions would be clearly dispositive of the defendant’s claim of improper cross-examination were it not for the references to church officials in the state’s questions mentioning various persons regarded as having some authority in the community to whom a witness, aware of a criminal prosecution against an acquaintance, might naturally have disclosed information supporting his innocence. These references make it necessary for us to review the claim to determine whether any fundamental constitutional right of the defendant has been infringed. State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).

It is conceivable that the first amendment right of a witness not to affiliate with any religion may be implicated where his lack of such an affiliation with a church is publicly exposed by the interrogation of a public official in a situation where such a church relationship is wholly irrelevant to any proper subject of governmental inquiry. The state in this case makes no claim that the religious affiliation of any alibi witness was even remotely pertinent to any issue at trial. In this appeal, however, we are not dealing with the constitutional rights of the witnesses who were subjected to such improper questions, but with those of the defendant. The transcript discloses no allusion to his religious affiliation or lack thereof. He, of course, cannot rely upon a possible violation of the constitutional rights of his defense witnesses, unless there has been some impact upon his own constitutional right of fair trial. See Rakas v. Illinois, 439 U.S. 128, 133-34, 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).

In assessing the effect of the questions at trial referring to religious affiliation or lack thereof, we are convinced that they had no more bearing on the outcome than the inquiries with which they were interspersed concerning the failure of the witnesses to disclose their information to the “police,” “any alderman,” “any fireman,” “any type of authority,” or “any official at all.” The absence of any objection by defense counsel on constitutional grounds indicates that he did not view the references to church officials as tending to degrade the defense witnesses for failure to attend church or to be more intimate with church personnel. The jury could only have viewed the references to church officials in the same light as those made to various public officials as persons to whom one might disclose evidence of innocence. In these times it is highly improbable that the lack of a religious affiliation on the part of a witness would have any significant impact on his credibilty as perceived by a jury. Thus we conclude that the defendant sustained no prejudice constituting a violation of a fundamental constitutional right from the erroneous overruling of his objection that it was irrelevant whether a witness had spoken with her “church clergyman.” See Commonwealth v. Bond, 17 Mass. App. 396, 400-401, 458 N.E.2d 1198, cert. denied, 391 Mass. 1103, 461 N.E.2d 1219 (1984); Commonwealth v. Rawls, 276 Pa. Super. 89, 101-102, 419 A.2d 109 (1980), appeal dismissed, 499 Pa. 267, 452 A.2d 1347 (1982).

We remind the state, however, that it must exercise caution when exploring lines of questioning that implicate religious belief. The state should avoid any inquiry into or reference to religious belief or practices unless the nature of the case makes religious belief an unavoidable issue. See State v. Thomas, 130 Ariz. 432, 636 P.2d 1214 (1981).

There is no error.

In this opinion the other justices concurred.

       The defendant in his motion for a new trial under Practice Book § 902 also claimed that the trial court erred in allowing Clara Bullock to testify concerning her daughter’s failure to appear at the trial. We examine that claim later in this opinion, and conclude that the trial court's error in permitting this testimony was harmless in nature. Such a harmless error would not justify a new trial under Practice Book § 902.

       The defendant’s objection was as follows:
      “Q. Did you ever tell your church clergyman, pastor, or minister—
      “Mr. Ganim: Objection, your Honor. I don’t know what relevancy that is if she spoke to her church clergyman. That would be privileged information anyway.
      “The Court: Overruled.
      “Mr. Ganim: Exception, please, your Honor.”
      The defendant has not briefed the portion of his objection concerning “privileged information,” and is therefore deemed to have abandoned any claim of error based upon that part of his objection, Fleischer v. Kregelstein, 150 Conn. 158,159,187 A.2d 241 (1962); see General Statutes § 52-146b.


source: Caselaw Access Project

author: Glass, J.

license: Public Domain

text:
    Kevin Roche-John Dinkeloo and Associates v. City of New Haven et al.
    (12816)
    Peters, C. J., Shea, Glass, Covello and Hull, Js.
    Argued November 12, 1987
    decision released January 12, 1988

      John C. Yavis, Jr., with whom was Barry J. Waters, for the appellant (defendant New Haven Coliseum Authority).

      Vincent J. Dowling, with whom, on the brief, was David A. Haught, for the appellee (plaintiff).
   Glass, J.

The defendant New Haven Coliseum Authority (hereinafter the Authority or the defendant) appeals from a judgment for the plaintiff architectural firm of Kevin Roche-John Dinkeloo and Associates (hereinafter Roche-Dinkeloo) after a jury trial. The defendant claims on appeal that the trial court erred in: (1) charging the jury with respect to the expert witnesses who testified at trial; (2) allowing the witness Carl Walker to testify; (3) directing a verdict for Roche-Dinkeloo on the breach of contract count in the Authority’s counterclaim; (4) instructing the jury on the elements of fraudulent concealment; (5) failing to instruct the jury on equitable estoppel; and (6) refusing to rule that the statutes of repose set forth in General Statutes §§ 52-584 and 52-584a are unconstitutional. We find no error.

The jury could reasonably have found the following facts: In 1967, the Authority engaged Roche-Dinkeloo to design an arena, exhibition hall and parking garage in New Haven (the Coliseum). On October 26, 1967, Roche-Dinkeloo retained LeMessurier and Associates of Cambridge, Massachusetts, as its structural engineering consultant. Roche-Dinkeloo’s design called for a rectangular, four level, 2400-space parking garage to be built over the arena, with the first or lowest level of the garage serving as the roof of the arena. Each floor of the garage was a composite deck composed of a three layer application of steel, reinforcing steel bars and concrete. The main structure was situated on rocker bearings, and control joints were placed at the intersections of individual concrete slabs to accommodate expansion. The garage was open to the elements on the top and sides. Except for the ramps, the garage floors were designed to be level.

The facility was substantially completed on September 26, 1972, and on approximately that date the Authority commenced the use and occupancy of the garage. Between 1972 and 1978, the Authority discovered water pooling on the decks of the garage and cracks in portions of the concrete floors. In 1978 the Authority commissioned an independent study to review problems with the garage. That study revealed that the existing drains were clogged, and recommended that more drains be installed and a waterproof coating be applied to the parking decks. Another study was commissioned by the Authority in 1980, which recommended that the Authority close off certain areas of the garage, which had become unsafe due to corrosion.

On May 11,1979, Roche-Dinkeloo brought an action against the city of New Haven to recover fees due under the contract, and on February 5,1980, its motion to cite in the Authority as a defendant was granted. The city subsequently filed a motion for summary judgment and that motion was granted by the trial court. On September 12,1980, the Authority filed an answer, special defense, and counterclaim in two counts, alleging breach of contract and negligence. Roche-Dinkeloo filed an amended answer to the counterclaim, asserting the statute of limitation as a special defense. The Authority filed a reply to the special defense, denying that the statute of limitation precluded the Authority’s claims and pleading several matters in avoidance, including fraudulent concealment, equitable estoppel and breach of the continuing duty to warn. The Authority also asserted that General Statutes §§ 52-584 and 52-584a are unconstitutional. After a lengthy trial, the jury returned a general verdict for Roche-Dinkeloo on the second count of the Authority’s counterclaim. The Authority moved to set aside the verdict, and the court denied the motion. The Authority appealed to the Appellate Court and this court transferred the appeal to itself.

I

The defendant’s first claim is that the trial court erred in its instruction to the jury with respect to the expert witnesses who testified at trial. Specifically, the defendant claims that the trial court purported to summarize the evidence presented by the expert witnesses, but in doing so unfairly emphasized the testimony of the witnesses called by Roche-Dinkeloo, and improperly summarized some of the evidence favoring Roche-Dinkeloo. We disagree.

During trial, the Authority called three expert witnesses to testify: (1) Roger LeRoy; (2) Charles Thornton; and (3) Donald W. Pfeifer. Roche-Dinkeloo called at least eight witnesses to testify, including six expert witnesses: (1) Robert Victor; (2) Carl Walker; (3) George Torello; (4) William LeMessurier; (5) Prank Heger; and (6) Alan Deher. The expert testimony offered by these witnesses was complicated and highly technical, consuming more than one month of trial time.

In the charge, the trial court, Zoarski, J., attempted to summarize the testimony of these witnesses. In so doing, however, the trial court did not mention all of the witnesses at the trial. In particular, reference to the testimony of Pfeifer and LeRoy, two of the three experts called by the Authority, was omitted. The trial court summarized the testimony of six of Roche-Dinkeloo’s expert witnesses.

Prior to summarizing the testimony, the trial court instructed the jury that “the weight to be accorded to the testimony of an expert witness depends upon your conclusion as to ... the completeness of the facts considered by them” and whether there was a “sound basis upon which they could render the opinions that they stated.” At the conclusion of the summary, the trial court stated that “each of these expert witnesses were cross-examined, and in many respects the opinions they rendered were questioned or challenged by the . . . Authority. Although the opinions were rendered, the question is ultimately the weight to be given to those opinions; whether you accept them and whether, in your opinion as jurors, you agree with those opinions that were rendered.” The jury was also instructed to consider an expert’s interest, bias, prejudice, frankness and candor in weighing his testimony. Finally, the trial court told the jurors to consider “what opportunity [the experts had] to analyze and study the garage, its design and its condition . . . [and whether this opportunity was] sufficient to reach the opinions or conclusions that they reached.”

In attacking the court’s comments on the evidence, the defendant claims that the instruction unfairly emphasized the testimony of Roche-Dinkeloo’s expert witnesses and that the summation of the testimony of one witness, Walker, was misleading. We have held that “[t]he court’s review of the evidence in its charge to the jury is subject to the overriding consideration that its comments be fair and that they not mislead the jury, so that injustice is not done to either party. Enlund v. Buske, 160 Conn. 327, 331, 278 A.2d 815 [1971]; Szlinsky v. Denhup, 156 Conn. 159, 163, 239 A.2d 505 [1968]; Ladd v. Burdge, 132 Conn. 296, 298, 43 A.2d 752 [1945]. We have indicated that the nature and extent of the trial court’s comments on the evidence, within constitutional limitations concerning trial by jury, must largely depend on the facts involved in a particular case and the manner in which it has been tried; and the matter of commenting on evidence rests in the trial court’s sound discretion. Heslin v. Malone, 116 Conn. 471, 477, 165 A. 594 [1933].” Anderson & McPadden, Inc. v. Tunucci, 167 Conn. 584, 589, 356 A.2d 873 (1975). “ ‘Instructions should not be so drawn as to direct the attention of the jury too prominently to the facts in the testimony on one side of the case, while sinking out of view, or passing lightly over, portions of the testimony on the other side, which deserve equal attention.’ State v. Rome, 64 Conn. 329, 339, 30 A. 57 [1894]; Maltbie, Conn. App. Proc. § 89.” Id., 591; see also Bruneau v. Quick, 187 Conn. 617, 626-32, 447 A. 2d 742 (1982).

We do not agree with the defendant that the court’s comments on the evidence in this case were unfair. It is true that the court’s commentary focused in greater detail on the testimony of witnesses who testified on behalf of the plaintiff. This fact alone does not render the instruction invalid, however, because we cannot say that this summary was prejudicially unfair to the defendant. Anderson & McPadden, Inc. v. Tunucci, supra, 593. The trial court first summarized the testimony of Thornton, an expert for the Authority. This summary set forth information regarding Thornton’s background as a structural engineer, and then discussed his ultimate opinion that Roche-Dinkeloo did not meet the standard of care of architects during the period from 1968 to 1971. The basis for his opinion was also set forth, including the facts that: (1) there was no pitch to the parking decks; (2) there were insufficient drains; (3) there were insufficient expansion or control joints within the parking decks; and (4) the use of a metal composite deck was improper due to the risk or danger of corrosion. At this point, the trial judge cautioned the jury that “[y]ou are, obviously to consider all of [the experts’] testimony, not just what I am telling you at this point.” The trial court then summarized the testimony of six Roche-Dinkeloo experts, four of whom offered the opinion that proper maintenance would have prevented many of the problems the Authority encountered with the garage. The summary of the testimony of the two other Roche-Dinkeloo witnesses concerned the materials used in the design, and included the fact that both witnesses indicated their approval of the choice of materials made by Roche-Dinkeloo, when put into the context of the years in which those decisions were made.

Although a more balanced presentation of the evidence might have resulted had the trial court summarized the testimony of the two Authority witnesses it omitted, this fact alone does not invalidate the charge, nor does it “sink out of view” the claims or evidence on the Authority’s side. See State v. Rome, supra, 334. The most detailed summary in the charge was that covering Thornton’s testimony, which referred to many of the Authority’s complaints regarding the garage design. Although more testimony offered by Roche-Dinkeloo was summarized, much of it covered the same facts. Moreover, the numerous cautionary instructions given by the trial court to consider all of the evidence indicate to us that the charge did not result in an invasion of the factfinding province of the jury.

The defendant also argues that the summary of the testimony of Walker was inaccurate and misleading. The defendant argues that Walker’s conclusion was that Roche-Dinkeloo had not met the applicable standard of care and that the trial court’s summary did not include this conclusion. The defendant suggests that Walker’s testimony that “[he] would not have designed a level parking structure,” supports this conclusion. We are not persuaded, however, that this testimony is equivalent to an opinion that Roche-Dinkeloo did not meet the appropriate standard of care. Furthermore, as noted above, the trial court’s many cautionary instructions to examine all of the testimony, not only that recounted by the court, alleviated the risk that the jury would misinterpret the purpose of the summary.

II

The defendant’s second claim is that the trial court. erred in allowing Walker to testify at trial. Specifically, the defendant claims prejudice because Walker’s identity was not disclosed to the Authority until after five weeks of trial, and the Authority was not afforded an opportunity to depose Walker until the night before he testified at trial, at which time Walker was unresponsive. The fact that the Authority did not request a continuance to remedy the claimed disadvantage resulting from insufficient time to prepare for the examination of Walker is determinative of this claim. Had the Authority sought and been denied a continuance, we would address this claim further. State v. Barrett, 205 Conn. 437, 455, 534 A.2d 219 (1987). Under these circumstances, however, we decline to do so.

III

The defendant’s third claim is that the trial court erred in directing a verdict for Roche-Dinkeloo on the breach of contract count of the Authority’s counterclaim. The trial court granted the directed verdict, ruling that: (1) the contract count did not sufficiently allege a cause of action; and (2) the Authority did not offer evidence of damages for breach of contract. As we find that the Authority did not offer appropriate evidence to establish damages for breach of contract, we need not address whether the allegations in the complaint were sufficient to establish the cause of action.

“As a general rule, in awarding damages upon a breach of contract, the prevailing party is entitled to compensation which will place him in the same position he would have been in had the contract been properly performed. Bertozzi v. McCarthy, 164 Conn. 463, 468, 323 A.2d 553 [1973]; Sabo v. Strolis, 148 Conn. 504, 506,172 A.2d 609 [1961]. Such damages are measured as of the date of the breach. Bachman v. Fortuna, 145 Conn. 191, 194, 141 A.2d 477 [1958]; Lee v. Harris, 85 Conn. 212, 214, 82 A. 186 [1912]; 22 Am. Jur. 2d, Damages § 52. For a breach of a construction contract involving defective or unfinished construction, damages are measured by computing either ‘(i) the reasonable cost of construction and completion in accordance with the contract, if this is possible and does not involve unreasonable economic waste; or (ii) the difference between the value that the product contracted for would have had and the value of the performance that has been received by the plaintiff, if construction and completion in accordance with the contract would involve unreasonable economic waste.’ Restatement, 1 Contracts § 346 (1) (a), p. 573; see annot., 76 A.L.R.2d 805, 812 § 4.” Levesque v. D & M Builders Inc., 170 Conn. 177, 180-81, 365 A.2d 1216 (1976); see also 41 A.L.R.4th 131.

We agree with the trial court that the Authority did not prove damages sufficient to defeat the plaintiff’s motion for a directed verdict. Although there was considerable evidence regarding the cost of repairs presently necessary to restore the Coliseum, careful review of the record indicates that the Authority offered no evidence as to cost of repairs at the time of the alleged breach. The costs presently necessary to repair the Coliseum are undoubtedly greater than they would have been in 1978, in view of corrosion, wear and tear and the age of the structure. The trial court properly directed a verdict for Roche-Dinkeloo on the contract count.

IY

Next, the Authority claims that the trial court erred in its instruction to the jury on the elements of fraudulent concealment. The Authority argues that the charge was contradictory, and that the trial court erred in its instruction as to whether a fiduciary relationship existed between the parties and whether an affirmative act of concealment was a necessary element of fraudulent concealment. We find that this claim was not properly preserved in the trial court, and therefore do not reach its merits.

Review of the record reveals that the Authority did not object to the portions of the charge of which it now complains. The Authority excepted to two parts of the charge on fraudulent concealment. First, the Authority claimed that the trial court improperly instructed the jury regarding the standard of proof necessary to prove a fraudulent concealment; and second, that the trial court improperly instructed the jury that the reliance element is necessary to the claim of fraudulent concealment. The Authority did not except to the trial court’s instructions regarding the fiduciary relationship or the necessity of an affirmative act as an element of fraudulent concealment. This claim, therefore, was not “distinctly raised at trial”; Holbrook v. Casazza, 204 Conn. 336, 354, 528 A.2d 774 (1987); State v. Rogers, 199 Conn. 453, 461, 508 A.2d 11 (1986); and we need not address it further.

V

The defendant’s two final claims of error are that the trial court erred (1) when it failed to charge the jury on equitable estoppel, and (2) when it failed to rule that the statutes of repose set forth in General Statutes §§ 52-584 and 52-584a are unconstitutional. The plaintiff contends that review of these claims is precluded by the general verdict rule. We agree.

In discussing the plaintiffs contention that the general verdict rule precludes appellate review of these issues, the defendant states in its reply brief that “[i]f the Court agrees that the trial court erred with respect to the summation of expert testimony, or in directing a verdict on the contract count, the Court should proceed to consider the trial court’s alleged error on Roche-Dinkeloo’s statutes of limitation defenses and the matters the Authority raised in avoidance of those statutes.” We have not found error, however, and will apply the general verdict rule, as the defendant suggests is proper under these circumstances. Thus, we will “presume that the jury found every issue in favor of the prevailing party.” Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 202, 520 A.2d 208 (1987).

There is no error.

In this opinion the other justices concurred.


author: Hull, J.

text:
    Patricia Small v. South Norwalk Savings Bank
    (13142)
    Peteks, C. J., Healey, Glass, Covello and Hüll, Js.

      Argued November 12, 1987
    decision released January 12, 1988

      Dennis G. Everleigh, with whom were Keith A. Rubenstein and, on the brief, John A. Milici, for the appellant-appellee (defendant).

      Bruce L. Levin, for the appellee-appellant (plaintiff).
   Hull, J.

The plaintiff, Patricia Small, brought suit against the defendant, South Norwalk Savings Bank, to recover for damages arising out of her purchase of a home that, unknown to her, was in a special flood hazard area. The plaintiff’s amended complaint alleged in the first count, sounding in tort, that: (1) she contracted to purchase property in Fairfield conditioned on satisfactory mortgage financing and that the defendant bank provided $52,000 first mortgage financing on that property; (2) in providing said mortgage financing, the defendant negligently failed to advise or inform the plaintiff that the property was located in a special flood hazard area, as required by Title 12 of the Code of Federal Regulations, §§ 339.0 through 339.5; and (3) as a proximate result of the defendant’s failure to warn her she purchased the property and moved into it, thereafter suffering great flood damage for which she was not insured. The fourth count repeated the same operative facts and alleged a cause of action in contract claiming that: (1) the defendant’s failure to advise or inform the plaintiff that the property was located in a special flood hazard area was in violation of Title 12 of the Code of Federal Regulations, § 339.5 (a), and Title 42 of the United States Code, § 4104a; and (2) in connection with the agreement for mortgage financing, the bank expressly or impliedly represented and warranted to the plaintiff that it would comply with federal law. In failing to give the plaintiff the required notice the defendant bank allegedly breached its contract with the plaintiff.

The underlying facts are not in dispute. In connection with her purchase of a house in Fairfield in 1979, the plaintiff engaged an inspector. With respect to evidence of water damage his report stated, “[n]one, no sign of any major flooding.” The day she moved into the house the plaintiff observed watermarks about five or six feet off the basement floor, and these marks completely encircled the basement walls. On April 9,1980, the plaintiff’s basement was flooded as a result of a heavy rainstorm, with resultant serious damage to her house and possessions. She learned the next day that her house was in a flood zone and that she had no flood insurance.

The defendant is a state chartered bank and not a member of the federal reserve system. It was, however, insured by the Federal Deposit Insurance Corporation, and, as such, was subject to 12 C.F.R. § 339.5. This section, in 1979, provided that banks such as the defendant “shall, as a condition of making, increasing, extending or renewing any loan secured by improved real estate . . . located or to be located in an area that has been identified by the Secretary of Housing and Urban Development as an area having special flood hazards, mail or deliver as soon as feasible but not less than 10 days in advance of closing of the transaction . . . a written notice to the borrower stating: (1) That the property securing the loan is or will be located in an area so identified (or in lieu of such notification, the bank may obtain satisfactory written assurance from seller or lessor stating that such seller or lessor has notified the borrower, prior to the execution of any agreement for sale or lease, that the property securing the loan is or will be located in area so identified) and (2) whether Federal disaster relief assistance will be available for the property in the event the property is damaged by a flood in a federally declared disaster. Each insured State nonmember bank shall require the borrower, prior to closing, to provide the bank with a written acknowledgment that the borrower realizes the property securing the loan is or will be located in an area so identified and that the borrower has received the above-required notice regarding Federal disaster relief assistance.” The bank admits that it failed to comply with this regulation. In its mortgage commitment to the plaintiff it failed to check off provision No. 5 which would have indicated that the property was in a flood hazard area. The reason it failed to do so was that its appraiser relied on outdated maps maintained by the bank and failed to check the official flood map on file in the Fairfield town hall.

The case was tried to a jury and, at the conclusion of the evidence, the court granted the defendant’s motion for a directed verdict on the fourth count claiming breach of contract. The case went to the jury only on the first count, the negligence claim. The jury returned a verdict for the plaintiff in the amount of $35,000. The plaintiff filed a motion to set aside the directed verdict on the breach of contract count which was denied. The defendant filed motions to set aside the verdict, for a new trial and for judgment notwithstanding the verdict. The plaintiff objected to these motions as untimely under Practice Book § 320. The plaintiffs objection was overruled and the defendant’s motions were denied. The court rendered judgment accordingly.

The defendant has appealed and the plaintiff has cross appealed. The defendant has briefed the following issues: (1) whether the trial court erred in submitting to the jury as a question of fact the issue whether the defendant bank owed the plaintiff borrower a common law duty to advise her that the property she had contracted to purchase was located within a flood zone; (2) whether 42 U.S.C. § 4012a (b) and § 4104a and the regulations promulgated thereunder create a statutory standard of conduct that if breached would give rise to an action for common law negligence; (3) whether the jury’s consideration of damages should have been limited to insurable losses; and (4) whether the court erred in denying the defendant’s motion for a directed verdict and its motions to set aside the verdict, for judgment notwithstanding the verdict and for a new trial.

On cross appeal the plaintiff briefed the following issues pertinent to our consideration of this case: (1) whether the trial court erred in holding that the defendant had timely filed a motion to set aside the verdict and, if so, whether appellate review is limited to plain error; and (2) whether the trial court erred in directing the jury to return a verdict for the defendant on the plaintiff’s breach of contract count which alleged that by violating 12 C.F.R. § 339.5 the defendant breached the contract, since that regulation, as an existing law, became an implied term of the contract.

We first consider whether the defendant’s posttrial motions were timely. The judgment was dated May 17, 1985. On May 23,1985, the defendant filed motions to set aside the jury verdict and for a new trial. On the same date the defendant filed a motion for judgment notwithstanding the verdict. The plaintiff objected to and moved to strike these three motions on the grounds of untimeliness. All three motions were denied by the court but not on the basis of untimeliness. The court in a memorandum of decision on the motions to set aside the verdict and for a new trial noted that the motions had been filed six days after the verdict but that a Saturday and Sunday had intervened. Since the clerk’s office had not been open either of those days, they had to be excluded and the motions had been timely filed.

Practice Book § 320 provides: “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, unless brought by petition served on the adverse party or parties, must be filed with the clerk within five days after the day the verdict is accepted or judgment rendered, exclusive of such days as the clerk’s office is not open; provided that for good cause the court may extend this time.” (Emphasis added.) Similarly, Practice Book § 321 requires that a motion for judgment notwithstanding the verdict must be filed “within the time stated in Sec. 320.”

Practice Book § 405 provides: “Clerk’s offices shall be open each weekday from Monday to Friday inclusive, between 9 o’clock in the forenoon and 5 o’clock in the afternoon, but they shall not be open on legal holidays. If the last day for filing any matter in the clerk’s office falls on a day on which such office is not open as thus provided . . . then the last day for filing shall be the next business day upon which such office is open.” Similarly, General Statutes § 51-347c provides: “If the last day for filing any matter in the clerk’s office of the superior court falls on a day on which such office is closed, the last day for such filing shall be the next business day.”

If the trial court were correct, the five day period in § 320 would always be seven days. This is not the law in Connecticut. By its very terms, § 405 applies only to the “last day for filing” or terminal day of the time period. See Aubrey v. Meriden, 121 Conn. 361, 364-65, 185 A. 87 (1936). Our interpretation accords with the common law rule that “if the last day for performance of certain acts falls on a Sunday or a legal holiday, the doing of that act on the following day would be timely.” Norwich Land Co. v. Public Utilities Commission, 170 Conn. 1, 9, 363 A.2d 1386 (1975). Intervening nonter-minal days in which the clerk’s office is not open are immaterial. Krajniak v. Wilson, 157 Conn. 126, 131, 249 A.2d 249 (1968).

No motion to extend the time for filing the defendant’s posttrial motions was timely filed nor was there any claim of good cause for such failure. When the time limit to file a motion to set aside the verdict as against the evidence was twenty-four hours this court said: “As we said in Brown v. Congdon, 50 Conn. 302, 311 [1882], with reference to a motion in arrest of judgment, ‘the limitation, although the time is short, is found by experience to be on the whole for the interest of the public. We no more feel at liberty to disregard it on account of the hardship of a particular case than we do to disregard an ordinary statute of limitations for a similar reason.’ ” Aubrey v. Meriden, supra, 365. We therefore conclude that the defendant’s posttrial motions were untimely.

The defendant’s failure to file a timely motion to set aside the verdict limits this court to ascertaining whether there has been plain error. Practice Book § 4185; Pietrorazio v. Santopietro, 185 Conn. 510, 515, 441 A.2d 163 (1981). In Pietrorazio, this court recognized that it was necessary to move to set aside a verdict to obtain appellate review of a claim that the evidence was insufficient to support the verdict. Id., 513. The court noted that commentators have opined that it is unnecessary for an appellant to move to set aside the verdict where the basis of the appeal is a ruling of the trial court claimed to be erroneous. Id., 514. The court did not analyze this view in relation to our practice because the case involved a claim for money damages and General Statutes (Rev. to 1981) § 52-228b specifically provided that no verdict in a civil action involving a claim for money damages could be set aside except upon a written motion. The court then stated: “To require a written motion to set aside a verdict as a prerequisite to consideration on appeal of trial rulings assigned as error as well as for review of insufficiency of the evidence claims is no marked deviation from current practice, since trial counsel often file such motions as a matter of course immediately following the rendition of an adverse verdict. See 2 Stephenson, Conn. Civ. Proc. (2d Ed.) § 202. This requirement also serves to implement our policy against review of questions not distinctly raised in the trial court. Practice Book § 3063 [now § 4185]. Even where a claim of error has been sufficiently preserved for appellate review it is seldom that its articulation in the heat of trial approaches the clarity and thoroughness of the presentation at a post-trial motion. The statute was designed to afford the trial court a full opportunity to redress any errors which may have occurred at trial before the appellate process is begun.” Id., 515. Although this statement is dicta in the Pietrarazio case, we adopt it as a proper rule of procedure on appeals in Connecticut.

When our review is limited to the plain error standard, the appellant does not have access to plenary review. Review for plain error “ ‘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).” Kolich v. Shugrue, 198 Conn. 322, 326, 502 A.2d 918 (1986).

We consider the defendant’s claims of error in the light of this rarefied standard of review. The defendant’s first two claims of error must be read together as embracing the central issue in its appeal, i.e., that it did not owe a duty to the plaintiff, the violation of which would constitute an actionable tort, to determine whether the property she had contracted to purchase was located within a flood zone. The defendant, relying on federal cases, argues that since the alleged duty is merely of statutory origin the only legitimate inquiry is whether the federal legislation expressly or impliedly creates a right of action under either federal or state law. The plaintiff does not press a claim to a private implied federal cause of action under 42 U.S.C. § 4104a. Rather, she claims that even if there is no implied federal cause of action under 42 U.S.C. § 4104a, a common law state negligence action may be asserted against a bank for violation of the statute and the cited regulations adopted in furtherance of it. She relies principally on Wright v. Brown, 167 Conn. 464, 356 A.2d 176 (1975). There, we stated: “ ‘Where a statute is designed to protect persons against injury, one who has, as a result of its violation, suffered such an injury as the statute was intended to guard against has a good ground of recovery.’ ” Id., 468. Statutory negligence is actionable upon satisfaction of two conditions: (1) the plaintiff must be a member of the class protected by the statute; and (2) the injury must be of the type the statute was intended to prevent. Id., 468-69. We cannot conclude that the court’s charge, which accepted the plaintiffs theory in this regard, constituted plain error. Nor does our review of the defendant’s claim that the jury’s consideration of damages should have been limited to insurable losses give rise to such a conclusion.

Nothing in the case gives rise to “any manifest injustice amounting to plain error under all the circumstances.” Valley v. Fazzina, 187 Conn. 423, 428, 446 A.2d 1068 (1982). “The doctrine of plain error should be invoked sparingly. To hold otherwise would undermine the requirement that claims of law be raised in the trial court in the first instance.” Berchtold v. Maggi, 191 Conn. 266, 274, 464 A.2d 1 (1983).

Because we find no error on the defendant’s appeal we need not reach the issues raised in the plaintiff’s cross appeal which we dismiss as moot.

There is no error on the defendant’s appeal, and the plaintiff’s cross appeal is dismissed as moot.

In this opinion the other justices concurred.

       The amended complaint was originally brought in five counts. The plaintiff withdrew the counts against the real estate agent and broker involved and the inspector who examined the house before closing, and the count seeking a declaratory judgment.

       “[42 U.S.C. (1976)] § 4104a. NOTIFICATION OF PURCHASER OR LESSEE OF SPECIAL FLOOD HAZARDS IN AREA OF LOCATION OF IMPROVED REAL ESTATE OR MOBILE HOME SECURING LOAN; REGULATIONS PRESCRIBING PROCEDURES
      “Each Federal instrumentality responsible for the supervision, approval, regulation, or insuring of banks, savings and loan associations, or similar institutions shall by regulation require such institutions, as a condition of making, increasing, extending, or renewing (after the expiration of thirty days following August 22,1974) any loan secured by improved real estate or a mobile home located or to be located in an area that has been identified by the Secretary under this chapter or Public Law 93-234 as an area having special flood hazards, to notify the purchaser or lessee (or obtain satisfactory assurances that the seller or lessor has notified the purchaser or lessee) of such special flood hazards, in writing, a reasonable period in advance of the signing of the purchase agreement, lease, or other documents involved in the transaction.”

       “[Practice Book] Sec. 320. motions in arrest of judgment, to set ASIDE VERDICT OR FOR NEW TRIAL
      “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, unless brought by petition served on the adverse party or parties, must be filed with the clerk within five days after the day the verdict is accepted or judgment rendered, exclusive of such days as the clerk’s office is not open; provided that for good cause the court may extend this time. The clerk shall notify the trial judge of such filing. Such motions shall state the specific grounds upon which counsel relies.”


author: Shea, J.

text:
    Clinton Nurseries, Inc. v. Commissioner of Revenue Services
    (13111)
    Peters, C. J„ Shea, Callahan, Covello and Hull, Js.
    Argued November 10, 1987
    decision released January 12, 1988

      Thomas A. Cloutier, with whom, on the brief, was M. Catheryn Oakland, for the appellant (plaintiff).

      Robert L. Klein, assistant attorney general, with whom were Wilfredo Morales, certified legal intern, and, on the brief, Joseph I. Lieberman, attorney general, for the appellee (defendant).
   Shea, J.

The defendant commissioner of revenue services imposed a deficiency assessment against the plaintiff, Clinton Nurseries, Inc., for the sales and use tax allegedly due the state on various items of personal property used in connection with the plaintiff’s nursery business. The plaintiff appealed this assessment to the Superior Court pursuant to General Statutes § 12-422. The trial court found that the sales and use tax was properly assessed against the plaintiff’s purchase of the components for its irrigation system, which consists of pipes and sprinklers, and its winter protection units, which include concrete railroad ties.

In this appeal from the judgment, the plaintiff claims that the trial court erred: (1) in ruling that the disputed devices are not the type of machinery exempt from the state sales and use tax under General Statutes (Rev. to 1981) § 12-412 (hh); (2) in relying on § 12-426-llb (c) (1) of the regulations of Connecticut state agencies in ruling that the disputed devices were not exempt, when this regulation is invalid; and (3) in ruling that the disputed devices are not materials used in agricultural production within the meaning of the sales and use tax exemption established by General Statutes (Rev. to 1981) § 12-412 (r). At oral argument the plaintiff conceded that his first two claims must fail in view of our decision in Phelps Dodge Copper Products Co. v. Groppo, 204 Conn. 122, 527 A.2d 672 (1987). Therefore, we will consider only the plaintiffs third claim. We find no error.

The plaintiff claims that the trial court erred in not granting an exemption from our sales and use tax for its winter protection units and irrigation system under the provisions of § 12-412 (r). That section provides an exemption for “materials . . . which become an ingredient or component part of tangible personal property to be sold or which are used directly in agricultural production . . . .” The plaintiff contends that the irrigation system and winter protection units are materials “used directly in agricultural production.”

We note initially that this statute must be strictly construed in favor of the taxing authority and against the taxpayer because it provides an exemption from taxation. Skaarup Shipping Corporation v. Commissioner, 199 Conn. 346, 352, 507 A.2d 988 (1986). We conclude that the plaintiff has failed to meet its burden of showing that the commissioner’s interpretation of this statute was unreasonable in this case.

I

The plaintiff’s argument that it is entitled to an exemption for its irrigation protection units must be reconciled with the relevant agency regulation. The commissioner of revenue services has promulgated § 12-426-llb of the regulations of Connecticut state agencies, which provides in part that protective equipment devices are not entitled to an exemption under § 12-412 (r). The commissioner contends that the winter protection units, including the concrete railroad ties, are protective equipment devices, and are, therefore, not entitled to an exemption under § 12-412 (r). Section 12-426-llb (a) (12) of the regulations of Connecticut state agencies, which determines whether materials qualify for the exemption under § 12-412 (r), provides that the term “materials” as used in the statute “shall not include furniture, fixtures and protective equipment devices or clothing.” This regulation must be given the full force and effect of law. Fusco-Amatruda Co. v. Tax Commissioner, 168 Conn. 597, 604, 362 A.2d 847 (1975); Hartford Electric Light Co. v. Sullivan, 161 Conn. 145, 154, 285 A.2d 352 (1971). The question presented here is whether the commissioner has properly interpreted the statute and regulation in assessing the sales and use tax against the plaintiff. This court gives considerable deference to the commissioner’s interpretation of taxation statutes and regulations. Phelps Dodge Copper Products Co. v. Groppo, supra, 128-29; see also Board of Education v. Connecticut State Board of Labor Relations, 190 Conn. 235, 241, 460 A.2d 1255 (1983); International Business Machines Corporation v. Brown, 167 Conn. 123,131 n.3, 355 A.2d 236 (1974).

The trial court determined that the winter protection units are protective equipment devices: “The parties’ stipulations and testimony by the president of the plaintiff company establish conclusively that the winter protection units are essentially nothing but protective devices.” We agree with this finding. The plaintiff itself chose the phrase “winter protection unit” in its pretrial memorandum: “Each winter protection unit consists of concrete railroad ties, each 10 feet in length, running along side each bed. The frame of the unit is formed by curved 20 foot long pipes which are placed in holes every three feet in the railroad ties. This skeleton frame is then covered with plastic. The center of the unit is approximately eight feet tall.” The plaintiff and defendant stipulated to these facts concerning the winter protection units, adopting precisely the same language. At oral argument, the plaintiff conceded that the curved pipes that are inserted into the concrete railroad ties for support and the plastic covering placed over these pipes are protective devices and thus are subject to the sales and use tax. The plaintiff, nevertheless, contends that the concrete railroad ties are exempt from taxation. In view of the plaintiff’s stipulation that “[e]ach winter protection unit consists of concrete railroad ties . . .’’it was reasonable for the court as the trier of fact to classify them as protective equipment devices.

II

The commissioner argues that the irrigation system cannot qualify for an exemption under § 12-412 (r) because, as the plaintiff has stipulated, it was assembled from separate component parts into a machine. In Phelps Dodge Copper Products Co. v. Groppo, supra, we held that component parts of a machine when purchased separately do not qualify for the machinery exemption under § 12-412 (hh). The plaintiff has conceded it is not eligible for a machinery exemption under § 12-412 (hh) because it purchased separate component parts to build an irrigation system rather than a complete functioning machine. The commissioner contends that § 12-412 (hh), as construed in Phelps to exclude component parts of machines purchased separately from the machinery tax exemption created by that section, would be rendered superfluous if these parts were eligible for an exemption under § 12-412 (r). See Hayes v. Smith, 194 Conn. 52, 58, 480 A.2d 425 (1984).

We agree with the commissioner’s argument that the legislative decision to exclude component parts from the machinery tax exemption under § 12-412 (hh) would be rendered superfluous if the same component parts were eligible for a tax exemption under § 12-412 (r). It is fundamental that a legislative act must be read as a whole, and that all of its parts must be reconciled so that no part is rendered superfluous. Hayes v. Smith, supra. We hold that component parts of machinery are not “materials . . . used directly in agricultural production ...” under § 12-412 (r). We need not consider the commissioner’s alternative argument, which was relied on by the trial court, that the irrigation system is not a material used directly in agricultural production within the meaning of § 12-412 (r) because the pipes and sprinklers are not substances that become part of the agricultural product.

There is no error.

In this opinion the other justices concurred.

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

       General Statutes (Rev. to 1981) § 12-412 (hh), in effect at the time of the defendant’s assessment against the plaintiff, provides: “machinery USED IN MANUFACTURING OR AGRICULTURAL PRODUCTION. Sales of and the storage, use or other consumption of machinery used directly in a manufacturing or agricultural production process. The word ‘machinery’ as used in this subsection means the basic machine itself, including all of its component parts and contrivances, such as belts, pulleys, shafts, moving parts, operating structures and all equipment or devices used or required to control, regulate or operate the machinery, but excluding office equipment or data processing equipment other than numerically controlled machinery used directly in the manufacturing process.”
      This statute has been recodified as General Statutes § 12-412 (84).

       General Statutes (Rev. to 1981) § 12-412 (r), in effect at the time of the defendant’s assessment against the plaintiff, provides: “production materials. Sales of and the storage or use of materials, rope, fishing nets, tools and fuel or any substitute therefor, which become an ingredient or component part of tangible personal property to be sold or which are used directly in agricultural production or in the fishing industry or in an industrial plant in the actual fabrication of the finished product to be sold. For the purpose of this subsection, the raising of poultry and livestock shall be construed to be included in the term ‘agricultural production.’ Sales of and the storage or use of materials, tools and fuel or any substitute therefor, when such products are used directly in the furnishing of power to an industrial manufacturing plant or in the furnishing of gas, water, steam or electricity when delivered to consumers through mains, lines or pipes.”
      This statute has been recodified as General Statutes § 12-412 (18).