author: Hull, J.

text:
    State of Connecticut v. Thomas Hall
    (13702)
    Peters, C. J., Healey, Glass, Covello and Hull, Js.

      Argued November 8, 1989
    decision released January 30, 1990

      Mary H. Lesser, deputy assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and Dennis O’Connor, assistant state’s attorney, for the appellant (state).

      Sydney T. Schulman, with whom, on the brief, was Otto Witt, for the appellee (defendant).
   Hull, J.

The defendant, Thomas Hall, was charged with murder; General Statutes § 53a-54a; in connection with the shooting of James “Bro” Robinson. Following a jury trial, he was convicted of the lesser included offense of manslaughter in the first degree, in violation of General Statutes § 53a-55 (a) (l), and was sentenced to a term of imprisonment of not less than ten nor more than twenty years. On the defendant’s appeal from the judgment of conviction, the Appellate Court determined that the trial court had committed reversible error in two respects: (1) in refusing to instruct the jury that the defense of self-defense was applicable to the lesser included offense of manslaughter in the second degree; and (2) in refusing to instruct the jury on the lesser included offense of criminally negligent homicide. State v. Hall, 17 Conn. App. 502, 554 A.2d 746 (1989). The state, after this court had granted certification,* * appealed from the Appellate Court’s judgment reversing the judgment of the trial court. We conclude that the trial court did err in refusing to instruct the jury that the defense of self-defense was applicable to the lesser included offense of manslaughter in the second degree, but we determine that this error was harmless in nature. We also conclude that the trial court did not err in refusing to instruct the jury on the lesser included offense of criminally negligent homicide. Accordingly, we reverse the judgment of the Appellate Court and remand the case to that court with direction to reinstate the judgment of the trial court.

Although the facts that the jury could reasonably have found are set forth in State v. Hall, supra, we summarize those pertinent to the issues in this appeal. On January 27,1981, at approximately 10 p.m., the defendant entered the VIP Lounge on Albany Avenue in Hartford. Soon thereafter he engaged in an argument with another patron in the bar, James Robinson. The argument escalated into a physical confrontation and eventually moved from inside the bar to the sidewalk in front of the bar. Almost immediately after the fight had moved outside, the defendant fired six rapid-fire gunshots into Robinson. No evidence was presented as to which of the shots were the fatal ones.

The defendant testified in his defense and narrated his version of the events that had occurred before, during, and after the shooting. He admitted that he had shot the victim several times from a distance of two to three feet, but claimed that he had done so in self-defense. According to the defendant, he and Robinson had been at an illegal gambling game across the street from the VIP Lounge prior to the shooting incident. The defendant had won money at the game, but Robinson had lost, prompting Robinson to ask the defendant for a loan. The defendant did not comply with Robinson’s request, and, consequently, when the two men were later at the VIP Lounge, Robinson provoked an argument. The argument escalated into a physical confrontation when Robinson jumped on the defendant and cut him with a knife. The two men then fought their way to the exterior doors of the bar through which Robinson exited. The defendant followed Robinson outside and immediately realized that Robinson was pointing a gun at him. The defendant, having witnessed Robinson’s violent tendencies on a prior occasion, testified that he was fearful for his life. Thus, in an effort to protect himself, he quickly pulled out his gun and started firing.

I

The first issue presented by this appeal is whether the Appellate Court erred in concluding that the trial court’s refusal to instruct the jury that self-defense was an applicable defense to manslaughter in the second degree; General Statutes § 53a-56; constituted reversible error. The trial court instructed the jury on the charged offense of murder and on the lesser included offenses of manslaughter in the first degree and manslaughter in the second degree. The trial court also charged the jury on the law of self-defense; General Statutes § 53a-19; but specifically instructed, contrary to the defendant’s timely request to charge, that self-defense was applicable only to murder and manslaughter in the first degree and was not to be considered with respect to manslaughter in the second degree. The Appellate Court determined that the trial court’s instruction constituted reversible error. State v. Hall, supra, 510-15. The state argues that the holding of the Appellate Court is erroneous in that: (1) the definitions of self-defense and manslaughter in the second degree are mutually incompatible, thus the trial court’s instruction was not error; or in the alternative that (2) even if the instruction was error, it was harmless in nature. We are persuaded by the latter argument.

A

The state first claims error in the Appellate Court’s conclusion that the defendant was entitled to a jury instruction on self-defense with respect to the lesser included offense of manslaughter in the second degree. The state bases its claim on the contention that the definitions of self-defense and manslaughter in the second degree are mutually incompatible, i.e., if the state proves the elements of manslaughter in the second degree beyond a reasonable doubt, it will necessarily have negated the defense of self-defense. Accordingly, the state argues, a trial court need only instruct the jury as to the elements of manslaughter in the second degree and may omit any specific reference to the theory of self-defense. We do not agree.

The Appellate Court focused on the “difficulty a jury has in weighing the justifiability of risk and action inherent in the crime of manslaughter in the second degree and the concept of self-defense” in resolving the claim now before us: “[I]n matters involving such esoteric concepts, the jury should have the benefit of as much information and instruction as will aid them in arriving at a just verdict. . . . We conclude, therefore, that the trial court should have instructed the jury on self-defense with respect to the lesser included offense of manslaughter in the second degree.” Id., 512.

We agree with the Appellate Court that, where the evidence warrants, the trial court must instruct the jury on self-defense in cases involving the charge of manslaughter in the second degree. We find further support for our holding in an important distinction between self-defense and manslaughter in the second degree. The statutory definitions of self-defense and manslaughter in the second degree reveal this distinction. General Statutes § 53a-19, in subsection (a), provides that, subject to the exceptions in subsections (b) and (c), “a person is justified in using reasonable physical force upon another person to defend himself . . . from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose . . . .” (Emphasis added.) General Statutes § 53a-56 (a) provides in pertinent part: “A person is guilty of manslaughter in the second degree when: (1) He recklessly causes the death of another person . . . “A person acts ‘recklessly’ with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.” (Emphasis added.) General Statutes § 53a-3 (13).

“ ‘[General Statutes § 53a-19] focuses on the person . . ; claiming self-defense. It focuses on what he reasonably believes under the circumstances and presents a question of fact.’ ” (Emphasis in original.) State v. DeJesus, 194 Conn. 376, 389, 481 A.2d 1277 (1984), quoting State v. Corchado, 188 Conn. 653, 663, 453 A.2d 427 (1982). Self-defense thus requires the trier of fact to measure the justifiability of the defendant’s actions from a subjective perspective. Manslaughter in the second degree, on the other hand, requires the trier of fact to view the justifiability of the defendant’s risk and action from the objective perspective of a reasonable person. It is this distinction that allows self-defense to be an applicable defense to General Statutes § 53a-56 (a) (1). Conduct may be a “gross deviation from the standard of conduct that a reasonable person would observe in the situation”; General Statutes § 53a-3 (13); but, at the same time, may be wholly justified if the defendant’s beliefs are reasonable from the perspective of that defendant. We conclude, therefore, that the defendant was entitled to a jury instruction on self-defense with respect to the lesser included offense of manslaughter in the second degree, and that the trial court’s refusal to give such an instruction was error.

B

Having found error in the trial court’s instruction, we must address the state’s alternative claim that the trial court’s error was harmless. “We have said that ‘[a] fundamental element of due process is the right of a defendant charged with a crime to establish a defense. Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967); State v. Bethea, 167 Conn. 80, 83, 355 A.2d 6 (1974).’ ” State v. Corchado, supra, 660, quoting State v. Miller, 186 Conn. 654, 660-61, 443 A.2d 906 (1982). This fundamental constitutional right includes proper jury instructions on self-defense as defined by § 53a-19. See State v. DeJesus, supra, 388; States. Corchado, supra; State v. Miller, supra. “The standard of review to be applied on this constitutional claim is whether ‘ “it is reasonably possible that the jury were misled.” ’ State v. Corchado, supra. ‘ “The charge is to be read as a whole and individual instructions are not to be judged in ‘artificial isolation’ from the overall charge. State v. Reed, 174 Conn. 287, 305, 386 A.2d 243 (1978); State v. Holmquist, 173 Conn. 140, 151, 376 A.2d 1111, cert. denied, 434 U.S. 906, 98 S. Ct. 306, 54 L. Ed. 2d 193 (1977). The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. State v. Roy, 173 Conn. 35, 40, 376 A.2d 391 (1977); State v. Mullings, 166 Conn. 268, 274-75, 348 A.2d 645 (1974).” State v. Estep, 186 Conn. 648, 652, 443 A.2d 483 (1982).’ State v. Maturo, 188 Conn. 591, 599, 452 A.2d 642 (1982); see also State v. Corchado, supra, 660-61.” State v. DeJesus, supra.

The majority of the Appellate Court rejected the state’s claim that the trial court’s refusal to instruct the jury on self-defense with respect to manslaughter in the second degree was harmless error. As authority for its holding, the Appellate Court relied on our decision in State v. Monte, 131 Conn. 134, 137, 38 A.2d 434 (1944), in which we held that the refusal to charge on a lesser included offense cannot be held harmless merely because the defendant was convicted of a greater offense. The Appellate Court reasoned as follows: “Because it is settled that a jury should be given the entire range of possible verdicts in a case in which the evidence warrants the giving of the lesser included offenses, it follows that defenses that are supported by a reasonable construction of the evidence should be given along with those same lesser charges. We are not persuaded by the argument that, in cases in which the defendant is convicted of the greater offense, the failure to give warranted instructions on the lesser included offenses is not harmless, while the failure to give similarly warranted instructions on corresponding defenses is harmless.” State v. Hall, supra, 514-15. Judge Stoughton dissented with respect to the majority’s resolution of this issue. Id., 523-24. We embrace the view expressed in his dissent and hold that Monte does not compel the conclusion that, under the facts here presented, the trial court’s failure to instruct the jury on self-defense with respect to manslaughter in the second degree was harmful error.

This court in State v. Monte, supra, 136, recognized that jury verdicts are often the product of “open-minded discussion and an honest weighing of the opinion of others.” Consequently, we held that a trial court’s failure to instruct the jury on warranted lesser included offenses cannot be held harmless merely because the defendant was convicted of a greater offense: “[T]he situation presented where the alternative is between finding a defendant guilty as charged or not guilty may be quite different from one where, under the charge of the court, they have the further choice of finding him guilty of some lesser offense embraced within the information. From the standpoint of the actual process by which juries arrive at verdicts, a failure to submit to them the lesser offense as a permissible basis for their verdict may work a very serious harm to the defendant.” Id., 136-37. Under the facts here presented, the trial court’s failure to give a warranted self-defense instruction to a lesser included offense does not involve the harm sought to be avoided by Monte.

The trial court instructed the jury on the charged offense of murder as well as the lesser included offenses of manslaughter in the first degree and manslaughter in the second degree. The trial court’s instruction on self-defense, while limiting the applicability of that defense, did not eliminate the jury’s consideration of it. Rather, the jury was fully instructed on the law of self-defense with respect to murder and manslaughter in the first degree, and was told: “If you find that the defendant acted in self-defense, it is a complete justification for his conduct and you will find him not guilty.” Thus, the jury’s verdict of guilty on the offense of manslaughter in the first degree was necessarily a rejection of the defense of self-defense. Since the elements of self-defense as applied to manslaughter in the second degree would have been the same as those applied to manslaughter in the first degree, the defendant would not have benefited by an instruction that the defense was applicable to manslaughter in the second degree. The court’s instructions did not interfere with “the effort of [the] jury to reach a verdict with which each member [could] conscientiously agree.” Id., 136. Accordingly, we hold that it is not reasonably possible that the jury was misled by the trial court’s failure to instruct the jurors that they might consider self-defense with respect to manslaughter in the second degree.

II

We now turn to the question of whether the Appellate Court was correct in concluding that the trial court’s denial of the defendant’s request to charge the jury on the lesser included offense of criminally negligent homicide; General Statutes § 53a- 58; constituted error. The defendant timely filed his request to charge prior to closing arguments, and took an exception when the charge was not given.

“ Tn State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980), this court articulated a four pronged test for determining when it is proper to charge a jury with respect to a lesser included offense. “A defendant is entitled to an instruction on a lesser offense if, and only if . . . (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” ’ State v. Manley, 195 Conn. 567, 574, 489 A.2d 1024 (1985), quoting State v. Vass, 191 Conn. 604, 616-17, 469 A.2d 767 (1983); State v. McIntosh, 199 Conn. 155, 158, 506 A.2d 104 (1986).” State v. Ostroski, 201 Conn. 534, 556-57, 518 A.2d 915 (1986).

The Appellate Court concluded that the defendant had established all four prongs of Whistnant and, thus, that the trial court had erred in refusing to instruct the jury on the lesser included offense of criminally negligent homicide. State v. Hall, supra, 519-23. The state argues that the Appellate Court’s holding is erroneous in that the defendant failed to meet even the first prong of State v. Whistnant. We agree.

The first prong of Whistnant requires that the defendant request “an appropriate instruction.” A proposed instruction on a lesser included offense, like any other proposed jury instruction, is not appropriate unless made in compliance with Practice Book § 854 (formerly § 852). See State v. Ostroski, supra, 556-58; State v. McIntosh, supra. Section 854 requires, inter alia, that a request to charge set forth “the evidence to which the proposition would apply.” We have held that, in the context of a written request to charge on a lesser included offense, this requirement of § 854 is met only if the proposed request contains “ ‘such a complete statement of the essential facts as would have justified the court in charging in the form requested.’ Michaud v. Gagne, 155 Conn. 406, 410, 232 A.2d 326 (1967), quoting Dwyer v. Connecticut Co., 103 Conn. 678, 680, 131 A. 838 (1925).” State v. Killenger, 193 Conn. 48, 57, 475 A.2d 276 (1984); see also State v. Ostroski, supra, 558; State v. McIntosh, supra, 160.

The defendant’s written request to charge made only one reference to the facts: “The situation referred to in this case is only the situation commencing with the fight inside the VIP Lounge between Mr. Hall and Mr. Robinson and ending with the shots outside the VIP Lounge.” The Appellate Court concluded that this statement “drew the trial court’s attention to the crucial, relevant factual scenario so that the court could justifiably have given the requested instruction.” State v. Hall, supra, 521. We do not agree. A mere general statement of the entire incident at issue does not comply with our rules of practice.

General Statutes § 53a-58 provides in pertinent part that “[a] person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person.” (Emphasis added.) “A person acts with ‘criminal negligence’ with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists.” General Statutes § 53a-3 (14). The defendant’s request to charge does not enumerate the essential facts that would have justified the court’s instruction to the jury pertaining to the defendant’s failure to “perceive a substantial and unjustifiable risk” of the victim’s death. Absent such facts, the defendant’s request to charge merely refers to a fatal shooting and is as applicable to the offenses of murder, manslaughter in the first degree, and manslaughter in the second degree as to criminally negligent homicide.

The defendant conceded at oral argument that the written request to charge did not set forth facts that related specifically to the offense of criminally negligent homicide, but contended that he was nevertheless entitled to the requested instruction. The defendant argued that, since he had testified at trial that he had intended only to wound the victim, he had presented the necessary facts to justify an instruction on criminally negligent homicide. We have rejected such a claim in the past and have stated that “a trial court [does not have] an independent obligation ‘ “to instruct, sua sponte, on general principles of law relevant to all issues raised in evidence.” ’ ” State v. McIntosh, supra, 160, quoting State v. Preyer, 198 Conn. 190, 198 n.9, 502 A.2d 858 (1985).

“While this court does not favor unyielding adherence to ‘rules of procedure where the interests of justice are thereby disserved’; [State v. McIntosh, supra, 160]; the ever increasing refinement of our law justifies cooperation of counsel in stating requests for jury instruction. ‘The minor burden of cooperation imposed by [Practice Book § 854] is neither unreasonable nor novel.’ Id., 161.” State v. Ostroski, supra, 559. The defendant’s proposed request did not contain, as our rules of practice and our case law require, “a complete statement of the essential facts as would have justified the court in charging in the form requested.” Dwyer v. Connecticut Co., supra, 680. Accordingly, the trial court did not err in refusing the defendant’s request to instruct the jury on the offense of criminally negligent homicide.

We reverse the judgment of the Appellate Court and remand the case to that court with direction to reinstate the judgment of the trial court.

In this opinion the other justices concurred.

       General Statutes § 53a-54a provides in pertinent part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . .”

       “[General Statutes] Sec. 53a-55. manslaughter in the first degree: class B felony, (a) A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person . . .

       This court certified the following questions for review from the Appellate Court: (1) “Did the Appellate Court err in concluding that the trial court should not have instructed the jury that self-defense was not available as a defense to the lesser included offense of manslaughter in the second degree?”; (2) “Did the Appellate Court err in concluding that the determination of the jury that self-defense had been disproved beyond a reasonable doubt, implicit in its verdict that the defendant was guilty of manslaughter in the first degree, did not render harmless the failure to charge upon the availability of self-defense for manslaughter in the second degree?”; and (3) “Where the defendant admitted shooting the victim at close range six times, claiming self-defense, did the Appellate Court err in holding that the defendant was entitled to an instruction on criminally negligent homicide as a lesser included offense?”

       “[General Statutes] Sec. 53a-56. manslaughter in the second degree: class c felony, (a) A person is guilty of manslaughter in the second degree when: (1) He recklessly causes the death of another person

       “[General Statutes] Sec. 53a-19. use of physical force in defense of PERSON, (a) Except as provided in subsections (b) and (c) a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.
      “(b) Notwithstanding the provisions of subsection (a), a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling, as defined in section 53a-100, or place of work and was not the initial aggressor, or if he is a peace officer or a private person assisting such peace officer at his direction, and acting pursuant to section 53a-22, or (2) by surrendering possession of property to a person asserting a claim of right thereto, or (3) by complying with a demand that he abstain from performing an act which he is not obliged to perform.
      “(c) Notwithstanding the provisions of subsection (a), a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force, or (3) the physical force involved was the product of a combat by agreement not specifically authorized by law.”

       The Appellate Court relied as authority for its conclusion on two decisions of this court: State v. Rodriguez, 180 Conn. 382, 429 A.2d 919 (1980) (recognizing the jury’s difficulty in determining the culpable state of mind of the defendant from among those required for various levels of homicide); and State v. Fuller, 199 Conn. 273, 506 A.2d 556 (1986) (recognizing the jury’s difficulty in determining voluntariness of action required for criminal responsibility for purposes of determining the defense of duress).

       “The test for the degree of force in self-defense is a subjective-objective one. The jury must view the situation from the perspective of the defendant. [General Statutes §] 53a-19 (a) requires, however, that the defendant’s belief ultimately must be found to be reasonable.” (Emphasis added.) State v. DeJesus, 194 Conn. 376, 389 n.13, 481 A.2d 1277 (1984).

       General Statutes § 53a-58 (a) provides: “A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person, except where the defendant caused such death by a motor vehicle.”

       The state also argues that the defendant has failed to meet the third prong of State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980). Because we hold that the defendant failed to request an appropriate instruction, we need not address this claim.


source: Caselaw Access Project

author: Callahan, J.

license: Public Domain

text:
    State of Connecticut v. Raymond Havican
    (13540)
    Peters, C. J., Healey, Shea, Callahan, Glass, Covello and Hull, Js.

      Argued October 31, 1989
    decision released January 30, 1990

      David F. Egan, public defender, for the appellant (defendant).

      Mary H. Lesser, deputy assistant state’s attorney, with whom was John Connelly, state’s attorney, for the appellee (state).
   Callahan, J.

The sole issue in this appeal is whether the trial court erred in not instructing the jury that the defendant could use deadly physical force if reasonably necessary to repel a forcible sexual assault. The defendant, Raymond Havican, was convicted by a jury of murder in violation of General Statutes § SSa-Ma and sentenced to life imprisonment. He appeals from the judgment rendered on the verdict. We find error.

On appeal, the defendant claims that the trial court erred when, in disregard of his request, it instructed the jury on self-defense and defined the term “great bodily harm” only in terms of “serious physical injury” and thereby excluded self-defense based solely upon the threat of homosexual rape as a basis for finding the defendant not guilty. “When we are reviewing a trial court’s failure to charge as requested, ‘we must adopt the version of the facts most favorable to the defendant which the evidence would reasonably support.’ State v. Anonymous (1977-9), 34 Conn. Sup. 612, 616, 380 A.2d 7 (1977); see State v. Cassino, 188 Conn. 237, 239, 449 A.2d 154 (1982); State v. Arroyo, 181 Conn. 426, 430, 435 A.2d 967 (1980).” State v. Fuller, 199 Conn. 273, 275, 506 A.2d 556 (1986).

The defendant testified that on the evening of May 12,1987, he was hitchhiking south on Route 8 in Waterbury when he was picked up by the victim, Harold Sanders. The defendant told the victim that he wanted a ride to the Union City exit on Route 8. Instead of following the defendant’s instructions, however, the victim drove past the Union City exit and got off at the next exit. He then traveled up Maple Street in Nau-gatuck and locked the doors of the car. As he was driving, the victim grabbed the defendant in the groin area and private parts. The defendant pushed the victim away and demanded to be let out of the car.

Instead, the victim continued to make numerous aggressive advances toward the defendant. At this point, the defendant produced a gun and warned the victim to stop. The victim stopped momentarily, but instead of driving the defendant to his original destination, abruptly turned down a street in a remote area, pulled into a dirt logging road and stopped. The defendant was terrified and tried to get out of the car but was unable to do so because its doors were still locked. The victim then lunged at the defendant, pinning his shoulders against the car door. At that point the defendant fired one shot from his revolver. The victim was momentarily stunned by the shot but continued to come towards the defendant. The defendant then hit the victim with the gun numerous times and fired his remaining five shots. Still terrified, he then managed to unlock the car door, extricate himself from the automobile’s interior and run.

After fleeing “a couple of hundred yards down the road,” the defendant decided to return to the car to hide the body. He did so by removing the victim’s body from the car and covering it with brush. Thereafter, the defendant drove the victim’s car to Florida. When the victim’s body was found, his penis was exposed. No jewelry or money had been taken from the decedent.

At trial, the court based its instructions to the jury, concerning the use of deadly force in self-defense, on General Statutes § 53a-19. The trial court stated that the defendant could use deadly physical force if he reasonably believed that the victim was (1) using or about to use deadly physical force or (2) inflicting or about to inflict great bodily harm. The trial court then proceeded to define great bodily harm by reciting the definition of serious physical injury set forth in General Statutes § 53a-3 (4). It instructed the jury that: “Great bodily harm is equivalent to serious physical injury, which means physical injury which creates a substantial risk of death or which creates serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ.” See General Statutes § 53a-3 (4). The defendant duly objected to the definition of “great bodily harm” included in the jury charge. The defendant requested the court either: (1) to leave the term “great bodily harm” undefined or (2) “to define great bodily harm in connection with sexual assault in the first degree.”

“If the defendant asserts a recognized legal defense and the evidence indicates the availability of that defense, such a charge is obligatory and the defendant is entitled, as a matter of law, to a theory of defense instruction. [State v. Rosado, 178 Conn. 704, 707-708, 425 A.2d 108 (1979)]. ‘[A] defendant is “entitled to have instructions presented relating to any theory of defense for which there is any foundation in the evidence, no matter how weak or incredible . . . United States v. Platt, 435 F.2d 789, 792 (2d Cir. 1970), quoting United States v. O’Connor, 237 F.2d 466, 474 n.8 (2d Cir. 1956).’ United States v. Alfonso-Perez, 535 F.2d 1362, 1365 (2d Cir. 1976). ‘A fundamental element of due process is the right of a defendant charged with a crime to establish a defense. Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967) . . . . ’ State v. Miller, 186 Conn. 654, 660, 443 A.2d 906 (1982).” State v. Fuller, supra, 278. When the legislature has created a legally recognized defense, the defendant is entitled to a proper jury instruction on the elements of that defense so that the jury may ascertain whether the state has sustained its burden of disproving the defense beyond a reasonable doubt. Id.; State v. Miller, supra, 660-61.

We therefore must first ascertain whether, under our law, a person may use deadly physical force when he reasonably believes that he is about to be forcibly sexually assaulted. Our self-defense statute, General Statutes § 53a-19, sets forth the circumstances in which a person is justified in using deadly physical force. In discussing the codification of the law of self-defense in § 53a-19, we have said that “[t]he statutes which enumerate the situations where the use of force is justified ‘attempt to restate the common law. They should be read in the light of their common law background, and the fact that an individual section does not fully state the relevant common law rule, with all its possible applications, exceptions or implications, should not prevent a court from reading it as incorporating the full body of common law rules relevant thereto.’ Commission to Revise the Criminal Statutes, Connecticut Penal Code Comments 5-6 (1972).” State v. Shaw, 185 Conn. 372, 379, 441 A.2d 561 (1981), cert. denied, 454 U.S. 1155, 102 S. Ct. 1027, 71 L. Ed. 2d 312 (1982); State v. Corchado, 188 Conn. 653, 661-62, 443 A.2d 427 (1982). Similarly, our rules of statutory construction tell us that “ ‘[n]o statute is to be construed as altering the common law, farther than its words import. It is not to be construed as making any innovation upon the common law which it does not fairly express.’ Dennis v. Shaw, 137 Conn. 450, 452, 78 A.2d 691 (1951), quoting Shaw v. Railroad Co., 101 U.S. 557, 565, 25 L. Ed. 892 (1879).” Yale University School of Medicine v. Collier, 206 Conn. 31, 37, 536 A.2d 588 (1988).

At common law, a person could justifiably use deadly force in self-defense of sodomy and rape. See 40 C. J.S., Homicide § 101. We have stated that, “[t]he class of crimes in prevention of which a man may, if necessary, exercise his natural right to repel force by force to the taking of the life of the aggressor, are felonies which are committed by violence and surprise; such as murder, robbery, burglary, arson, breaking a house in the day time with intent to rob, sodomy and rape. Blackstone says: ‘Such homicide as is committed for the prevention of any forcible and atrocious crime is justifiable by the law of nature; and also by the law of England, as it stood as early as the time of Bracton ....’” State v. Moore, 31 Conn. 479, 483 (1863). Thus, § 53a-19 codified the common law rule that a person can justifiably use deadly force in self-defense of sodomy and rape.

The state agrees with this proposition but nevertheless argues that the trial court’s charge need not have specifically mentioned that the defendant was in fear of being forcibly sexually assaulted. In other words, the state claims that a jury charge is adequate as long as it mentions that a defendant must be in fear of great bodily harm or death. The state further claims that the trial judge’s definition of great bodily harm solely in terms of serious physical injury did not exclude homosexual rape as one of the circumstances that would give rise to a reasonable belief that the aggressor was about to inflict great bodily harm. We disagree.

Neither § 53a-19 nor Connecticut case law defines “great bodily harm.” We therefore must first address whether “great bodily harm” is equivalent to “serious physical injury.” In doing so, we recognize that “ ‘in construing statutes, we presume that there is a purpose behind every sentence, clause, or phrase used in an act and that no part of a statute is superfluous. State v. Grant, 176 Conn. 17, 20, 404 A.2d 873 (1978); Catino v. Board of Education, 174 Conn. 414, 418, 389 A.2d 754 (1978)’; Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co., 193 Conn. 208, 231-32, 477 A.2d 988 (1984).” Hayes v. Smith, 194 Conn. 52, 58, 480 A.2d 425 (1984).

Section 53a-19 allows an actor to use deadly physical force only when “the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.” (Emphasis added.) General Statutes § 53a-3 (5) defines “deadly physical force” as “physical force which can be reasonably expected to cause death or serious physical injury.” (Emphasis added.) Thus, the definition of deadly physical force in § 53a-3 (5) encompasses the term “serious physical injury.” If a deadly physical force includes one likely to cause “serious physical injury,” the term “great bodily harm” must mean something else. Otherwise, it would be mere surplusage. Furthermore, it would be illogical to assume that the legislature intended the definition of deadly physical force in § 53a-3 (5), which expressly relates only to “serious physical injury,” to also include “great bodily harm.” Thus, we conclude that the threat of great bodily harm and the threat of serious physical injury are two separate grounds that each justify the use of deadly force in self-defense.

We find additional support for our conclusion in the history of our self-defense statute. Section 53a-19 is largely a product of the legislature’s revision of our penal code in 1969. “[T]he drafters of the [Connecticut penal] code relied heavily upon the Model Penal Code and various state criminal codes, especially the penal code of New York. Conn. Joint Standing Committee Hearings, Judiciary, Pt. 1, 1969 Sess., p. 11.” State v. Hill, 201 Conn. 505, 517, 523 A.2d 1252 (1986). Thus, we may turn to the parallel statutory provisions set forth in the Model Penal Code and the New York Revised Penal Law, effective September 1, 1967, for guidance. State v. Hill, supra, 516-17; In re Juvenile Appeal (Docket No. 9268), 184 Conn. 157, 163-64 nn. 8-9, 439 A.2d 958 (1981).

Both the New York penal code and the Model Penal Code recognize that a forcible sexual assault may be repelled by deadly physical force. Furthermore, New York has recognized that the imminent threat of deadly physical force and the threat of forcible sodomy are two distinct grounds for the justified use of deadly physical force. People v. Coleman, 122 App. Div. 2d 568, 569, 504 N.Y.S.2d 949 (1986) (the trial court’s jury charge was erroneous because it gave an instruction only as to the threat of the imminent use of deadly physical force when the evidence also raised an issue of fact as to the threat of attempted forcible sodomy). Similarly, the Model Penal Code lists the threat of forcible sexual intercourse and the threat of serious bodily injury as two separate justifications for the use of deadly force. Model Penal Code § 3.04 (2) (b). Rather than delineate the specific felonies which may be defended against by the use of deadly physical force, as was done in the New York penal code and the Model Penal Code, the Connecticut legislature chose to utilize the term “great bodily harm.” In doing so, however, the legislators recognized that they were not setting forth an all-inclusive list of offenses that would justify the use of deadly physical force. See Commission to Revise the Criminal Statutes, supra.

Accordingly, we conclude that the definition of serious physical injury included in the jury charge was too restrictive and did not fully encompass the threat of sexual assault. See State v. Hunter, 305 N.C. 106, 114, 286 S.E.2d 535 (1982) (a male who is put in fear of homosexual assault is put in fear of great bodily harm). “[R]ape is so often accompanied by extreme physical and emotional brutality that it carries with it the explicit or implicit threat of great bodily harm.” People v. Landrum, 160 Mich. App. 159, 165, 407 N.W.2d 614 (1986), vacated, 430 Mich. 861, 420 N.W.2d 573, aff d on reconsideration, 171 Mich. App. 148, 429 N.W.2d 818 (1988). In People v. Landrum, supra, 164, the court instructed the jury that, “the degree of danger which must be feared is serious bodily harm or death.” On appeal, the court held that “the instruction given did not conform to [the] defendant’s actual theory of self-defense.” Id., 165. Rather, the trial court should have instructed the jury that the “defendant could use deadly force if necessary to repel sexual assault involving forced penetration as well as serious bodily harm or death.” Id., 165-66.

The standard of review that we apply to this constitutional due process claim is whether it is reasonably possible that the jury was misled. State v. DeJesus, 194 Conn. 376, 388, 481 A.2d 1277 (1984); State v. Cor-chado, supra, 660. “ ‘The primary purpose of the charge to the jury is to assist them in applying the law correctly to the facts which they find to be established.’ Velardi v. Selwitz, 165 Conn. 635, 637, 345 A.2d 527 (1974).” State v. Cooper, 182 Conn. 207, 211, 438 A.2d 418 (1980).

The defendant testified that the victim had grabbed his groin and private parts. Furthermore, he testified that despite his protestations, the victim lunged toward him to pin him against the car door. Since the defendant’s testimony must be viewed in the light most favorable to supporting his request to charge; State v. Fuller, supra, 279; it might, if believed, have provided sufficient evidence for the jury to conclude that the defendant’s use of deadly physical force was necessary to defend against the imminent threat of forcible sexual assault. The court’s charge, however, significantly restricted the opportunity for the jury to assess whether the imminent threat of forcible sexual assault justified the use of deadly physical force in self-defense. The trial court’s limitation of great bodily harm to serious physical injury effectively deprived the defendant of the clear opportunity to present a legally recognized defense. Because it is reasonably possible that, in this case, the jury was misled by the instructions; State v. Corchado, 660; we find error. An instruction that the threat of forcible sexual assault in the first degree constituted a threat of great bodily harm and was a defense to the crime charged would have enabled the jury to make a reasoned and guided assessment of the application of the defense of self-defense in these circumstances. We are not persuaded that the trial court’s equation of great bodily harm with serious physical injury sufficiently instructed the jury on the use of deadly physical force in self-defense against the threat of forcible sexual assault.

There is error, the judgment is set aside and a new trial is ordered.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-54a. murder defined, affirmative DEFENSES. EVIDENCE OF MENTAL CONDITION. CLASSIFICATION, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

       “[General Statutes] See. 53a-19. use of physical force in defense of person, (a) Except as provided in subsections (b) and (c) a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.
      “(b) Notwithstanding the provisions of subsection (a), a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling, as defined in section 53a-100, or place of work and was not the initial aggressor, or if he is a peace officer or a private person assisting such peace officer at his direction, and acting pursuant to section 53a-22, or (2) by surrendering possession of property to a person asserting a claim of right thereto, or (3) by complying with a demand that he abstain from performing an act which he is not obliged to perform.
      “(c) Notwithstanding the provisions of subsection (a), a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force, or (3) the physical force involved was the product of a combat by agreement not specifically authorized by law.”

       “Short of homicide, [rape] is the ‘ultimate violation of self.’ It is also a violent crime because it normally involves force, or the threat of force or intimidation, to overcome the will and the capacity of the victim to resist. Rape is very often accompanied by physical injury to the [victim] and can also inflict mental and psychological damage.” Coker v. Georgia, 433 U.S. 584, 597-98, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977).

       New York’s definition of deadly physical force is identical to Connecticut’s in that it also embodies the term “serious physical injury.”

       Further, even the statutory definition of sexual assault in the first degree does not contemplate that a person must be in fear of “serious physical injury.” General Statutes § 53a-70 (a) provides: “A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person.” (Emphasis added.)


text:
    Dorothy Gagnon v. Inland Wetlands and Watercourses Commission of the Town of Bristol et al.
    (13821)
    Peters, C. J., Shea, Covello, Hull and Santaniello, Js.
    Argued December 13, 1989
    decision released February 6, 1990

      Alfred F. Morrocco, Jr., with whom was Roger E. Chiassonll, for the appellants (defendant Jon Pose et al.).

      Jo Ann Paul, for the appellee (plaintiff).
   Hull, J.

The sole issue in this administrative appeal is whether the Superior Court is required to search the record of an inland wetlands commission hearing to determine if there is an adequate basis for the action taken by that commission, where the commission failed to state upon the record the reason for its decision. We hold that the long established rule requiring such a search of the record in appeals from planning and zoning authorities applies with equal force to an appeal from an inland wetlands commission. Accordingly, we conclude that the trial court erred in sustaining the plaintiffs appeal from the decision of the inland wetlands commission on the sole ground that the commission failed to state upon the record the reason for its decision.

On April 6,1988, the individual defendants Jon Pose, Dominic Pietrofesa, Josephine Pietrofesa and James Session filed an application for a wetlands permit with the wetlands commission of the city of Bristol. The applicants wanted to subdivide their real estate. The city planning commission required that a report from the wetlands commission be attached to the subdivision application. Hearings on this matter were held on April 25 and May 16, 1988, by the wetlands commission, which approved the application following the latter hearing. The plaintiff, Dorothy Gagnon, thereafter appealed this decision to the Superior Court. The trial court examined the record of the hearings before the commission and found that the commission had not stated upon the record the basis for its approval of the application. On the basis of this reason solely the court sustained the plaintiffs appeal. The defendant Jon M. Pose et al. (defendants) appealed from the judgment to the Appellate Court and we transferred the case to this court pursuant to Practice Book § 4023.

The defendants claim on appeal that the trial court erred by not searching the record of the April 25 and May 16, 1988 hearings to ascertain the basis for the commission’s approval of the defendants’ application. The defendants further claim that had the trial court adequately searched the record, it would have found sufficient reason to warrant approval of the application. We agree that the trial court’s failure to search the.record was error, and remand this case to the trial court for further proceedings to determine whether the record discloses adequate reasons for the commission’s decision.

The defendants first contend that, in an appeal from a decision of an inland wetlands commission, a trial court must search the record of the hearings before that commission to determine the basis for the agency’s decision. In support of this contention, the defendants rely entirely on case law mandating such a search in appeals from decisions of planning and zoning authorities. The basis for the defendants’ reliance on these cases is the similarity in the language of the statutes governing inland wetlands agencies; General Statutes §§ 22a-42 through 22a-45; and the statutes governing planning and zoning agencies. General Statutes §§ 8-1 through 8-30a.

General Statutes § 22a-42a (d) provides in pertinent part: “In granting . . . any permit for a regulated activity the inland wetlands agency shall consider the factors set forth in section 22a-41, and such agency shall state upon the record the reasons for its decision. (Emphasis added.) Planning and zoning agencies are bound by similar statutory language: “Whenever such [zoning] commission makes any change in a regulation or boundary it shall state upon its records the reason why such change is made . . . General Statutes § 8-3 (c); “[w]henever a [zoning] commission grants or denies a special permit or special exception, it shall state upon its records the reason for its decision . . . General Statutes § 8-3c (b); “[w]henever a zoning board of appeals grants or denies any special exception or variance in the zoning regulations . . . it shall state upon its records the reason for its decision . . General Statutes § 8-7; “[t]he grounds for [the planning commission’s] action [concerning applications for subdivision approval] shall be stated in the records of the commission . . . ”; General Statutes § 8-26; and “[w]henever a [planning] commission grants or denies a special permit or special exception, it shall state upon its records the reason for its decision.” General Statutes § 8-26e.

Notwithstanding this statutory language, our case law clearly requires the trial court, in appeals from planning and zoning authorities, to search the record to determine the basis for decisions made by those authorities. In Parks v. Planning & Zoning Commission, 178 Conn. 657, 661-62, 425 A.2d 100 (1979), we said that “[t]he [planning and zoning] commission’s failure to state on the record the reasons for its actions, in disregard of General Statutes § 8-3, renders appellate review more cumbersome, in that the trial court must search the entire record to find a basis for the commission’s decision . . . .’’We further stated that “[i]f any reason culled from the record demonstrates a real or reasonable relationship to the general welfare of the community, the decision of the commission must be upheld.” (Emphasis in original.) Id., 662-63. We have enunciated this duty of a trial court with respect to appeals from zoning boards in a long line of cases. See, e.g., A. P. & W. Holding Corporation v. Planning & Zoning Board, 167 Conn. 182, 186, 355 A.2d 91 (1974); Morningside Assn. v. Planning & Zoning Board, 162 Conn. 154, 156, 292 A.2d 893 (1972).

“(1) The environmental impact of the proposed action;
“(2) The alternatives to the proposed action;
“(3) The relationship between short-term uses of the environment and the maintenance and enhancement of long-term productivity;
“(4) Irreversible and irretrievable commitments of resources which would be involved in the proposed activity;
“(5) The character and degree of injury to, or interference with, safety, health or the reasonable use of property which is caused or threatened; and
“(6) The suitability or unsuitability of such activity to the area for which it is proposed.
“(b) In the case of an application which received a public hearing, a permit shall not be issued unless the commissioner finds that a feasible and prudent alternative does not exist. In making his finding the commissioner shall consider the facts and circumstances set forth in subsection (a). The finding and the reasons therefor shall be stated on the record.”

The Appellate Court applied the same rule to a review of the decision of a zoning board of appeals in Stankie-wicz v. Zoning Board of Appeals, 15 Conn. App. 729, 732, 546 A.2d 919 (1988). On certification to this court the issue was limited to the following question: “Did the Appellate Court err in concluding that if a zoning board gives inadequate reasons for granting a variance, as opposed to giving no reasons whatever, the trial court may search the record to determine whether basis exists for the action taken?” (Emphasis in original.) Stankiewicz v. Zoning Board of Appeals, 211 Conn. 76, 77-78, 556 A.2d 1024 (1989). We affirmed the Appellate Court’s opinion, per curiam. Id.

Finally, in Kaeser v. Conservation Commission, 20 Conn. App. 309, 311, 567 A.2d 383 (1989), the Appellate Court considered exactly the same issue as that raised in this case. The plaintiffs in Kaeser appealed from the judgment of the trial court dismissing their appeal from the decision of the conservation commission of the town of Easton, acting as the local inland wetlands agency. Id., 310. The plaintiffs claimed that the reason given by the conservation commission for denying the plaintiffs’ application was merely a con-clusory statement and not a reason for denying a permit. Id., 311. In upholding the trial court’s judgment, the Appellate Court said that “[e]ven if that were so, the reviewing court may ‘ "search the record for reasons to support the agency’s decision.” ’ ” Id., quoting Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 541, 525 A.2d 940 (1987). Later in Kaeser, the Appellate Court fortified its statement that the reviewing court may search the record by stating that "[a] reviewing court is required to search the record for reasons . . . . ” (Emphasis added.) Kaeser v. Conservation Commission, supra, 312.

The plaintiff nonetheless argues that the case law regarding appeals from planning and zoning authorities is not applicable to the present case. The principal argument set forth by the plaintiff is that the inland wetlands review process is sufficiently distinct from the zoning approval process to warrant a strict adherence to the controlling statutes. The plaintiff first points out that General Statutes § 8-8 provides that there shall be no right to further review from a decision of a zoning board of appeals except to the Appellate Court by certification for review, and that there is no comparable statute restricting appeals from decisions of inland wetlands agencies. We fail to see the relevance of this argument to the issue before us. This claim is a distinction without a difference.

The plaintiff next emphasizes that General Statutes § 22a-42a (d) requires an inland wetlands agency to consider the factors set forth in General Statutes § 22a-41 (a) in reaching a decision to grant, deny or limit a permit for activity in a regulated area. The plaintiff argues that, by contrast, none of the statutory sections governing zoning contains a mandate that a zoning agency make such specific findings as part of its decision-making process. We are not persuaded by this distinction. The factors governing decisions by the planning and zoning agencies are at least as specific and weighty as those applicable to inland wetlands agencies. See, e.g., General Statutes § 8-2, criteria for adoption of regulations by a zoning commission; General Statutes § 8-6, powers and duties of boards of appeals; General Statutes § 8-23, criteria for a plan of development by a planning commission; General Statutes § 8-25, criteria for consideration of a subdivision of land by a planning commission.

Finally the plaintiff cites as authority for her position 1987 legislative history concerning the debate on the 1987 amendments to the Inland Wetlands and Watercourses Act that demonstrates “the legislature’s deep concern about wetlands management and its intent to strengthen the present Inland Wetlands and Watercourses Act.” We conclude, however, that a more persuasive aspect of legislative history is the failure of the legislature to pass legislation vitiating our long established line of authority requiring the trial court on administrative appeals from land use agencies to search the record for reasons supporting the agency’s decision. Ralston Purina Co. v. Board of Tax Review, 203 Conn. 425, 439, 525 A.2d 91 (1987).

We agree for three reasons with the position articulated by the defendants that in an appeal from a decision of an inland wetlands commission, a trial court must search the record of the hearings before that commission to determine if there is an adequate basis for its decision. First, the planning and zoning cases described above furnish a very compelling analogy for the application of the same rule to cases involving the Inland Wetlands and Watercourses Act. Second, the use of language concerning the inland wetlands agency’s duty to state the reason for its decision on the record that is either identical to or very similar to language we have cited concerning other land use agencies lends great weight to the view that a similar rule should apply to an inland wetlands agency. The most cogent argument, however, is the public policy argument that a local land use body is composed of laymen whose procedural expertise may not always comply with the multitudinous statutory mandates under which they operate. The case law requiring the trial court on appeal to search the record for the agency’s reason for its decision is a practical and fair reaction to this scenario. We conclude that the court erred in sustaining the plaintiff’s appeal because the inland wetlands commission did not state on the record the reasons for its decision.

Having found error in the trial court’s failure to search the record, we must address the defendants’ contention that, had the trial court adequately searched the record, it would have found that sufficient reason existed to warrant approval of the application. The case is in an unusual procedural posture with respect to this claim. While the trial court’s memorandum of decision drew certain factual conclusions from the record, we are unable to ascertain whether the court searched the entire record for reasons that might sustain the agency’s decision, because the court short-circuited its review of the record when it sustained the appeal due to the commission’s failure to state its reasons upon the record. The memorandum of decision is likewise devoid of any conclusion as to the adequacy of any such reason that the court may have found.

There is error, the judgment sustaining the plaintiff’s appeal is set aside and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other justices concurred.

       The wetlands commission or agency is the Conservation Commission of the city of Bristol.

       “[General Statutes] Sec. 22a-41. factors for consideration of commissioner. FINDING OF NO FEASIBLE OR PRUDENT ALTERNATIVE, (a) In carrying out the purposes and policies of sections 22a-36 to 22a-45, inclusive, including matters relating to regulating, licensing and enforcing of the provisions thereof, the commissioner shall take into consideration all relevant facts and circumstances, including but not limited to:

       The plaintiff also claims that the statute imposes upon the commission a mandatory duty to state upon the record the reason for its decision. This argument flies in the face of Morningside Assn. v. Planning & Zoning Board, 162 Conn. 154, 156, 292 A.2d 893 (1972), in which we stated: “While . . . a failure to comply with [General Statutes] § 8-3 [requiring a zoning board to state upon its records the reasons why such a change is made] hinders appellate review of the board’s action . . . the provision is directory only so that failure to comply with it does not render the board’s action void.”


author: Glass, J.

text:
    New England Land Company, Ltd. v. William DeMarkey, Jr., et al.
    (13763)
    Peters, C. J., Healey, Glass, Covello and Hull, Js.
    Argued November 8, 1989
    decision released February 6, 1990

      Harvey J. Rothberg, for the appellant (named defendant).

      Stefan R. Underhill, with whom, on the brief, was John Crosskey, for the appellee (plaintiff).
   Glass, J.

This is an appeal by the named defendant, William DeMarkey, Jr., from the denial of his motion to dissolve or vacate an ex parte prejudgment real estate attachment obtained by the plaintiff, New England Land Company, Ltd. (NELCO), in conjunction with a claim for a real estate commission. We find error and remand the case for further proceedings.

The trial court, Fuller, J., found that the evidence offered by NELCO at the hearing on DeMarkey’s motion was “basically uncontested.” NELCO is a real estate brokerage company with an office in Greenwich. One of its employees is George N. Bagley, a licensed Connecticut real estate broker. On September 22,1986, the defendants, William DeMarkey, Jr., and Connecticut Bank and Trust Company (CBT), were owners of real property located at 177 West Putnam Avenue in Greenwich. NELCO, acting through Bagley as its agent, on September 22, 1986, procured a written agreement with DeMarkey and CBT that gave NELCO the exclusive right to sell the Greenwich property and the exclusive right to sublease all or part of it. The agreement extended from September 22,1986, to “March 23, 1987 and thereafter, until terminated by either party giving to the other 30 days prior notice in writing.” In the agreement, the defendants agreed to pay NELCO a commission based on the rental price or gross sales price as provided in a schedule attached to the agreement and designated in the agreement as Appendix A. The agreement provided for a sales commission of 6 percent of the property’s sale price. If the property were sold or leased by a broker not employed by NELCO, however, the defendants agreed to pay a commission to NELCO of one and one-half times the commission stated in Appendix A.

In addition, on March 5, 1987, NELCO and the defendants signed a modification to the September 22, 1986 agreement, extending it to September 30, 1987, and specifically stating that all other provisions of the agreement remained unaltered and in full effect. On March 23, 1988, a letter, signed by an agent of NELCO and by DeMarkey, referenced the prior agreement and provided for a $30,000 payment to NELCO for providing two tenants for the building on the property. The letter specifically stated that it was intended “to confirm that except as modified hereby our original Exclusive Listing Agreement is still in full force and effect.” CBT, however, did not sign this letter. Futhermore, no written notice was given that the termination date of the original agreement, March 23, 1987, had passed, and that the termination date of the modification agreement, September 30,1987, had also passed.

On April 6,1988, NELCO entered into a co-brokerage agreement regarding the property with two licensed Connecticut real estate brokers, Marjorie Rowe and Benjamin Rowe. The defendants also received from the Rowes an offer to buy the property. The next day, April 7,1988, the Rowes agreed to purchase the property from the defendants for $1,800,000, and during the summer of 1988, the defendants sold the property to the Rowes for that price. The defendants refused, however, to pay NELCO any sales commission. In addition, DeMarkey also failed to pay the $30,000 provided in the agreement between himself and NELCO in the letter dated March 23, 1988.

NELCO then commenced this action against the defendants. NELCO’s complaint was in two counts. The first count sought recovery of the sales commission ($162,000) and the second count sought recovery of the $30,000 that NELCO claimed DeMarkey owed it as a result of their letter agreement. NELCO obtained a prejudgment remedy for $192,000 against DeMarkey’s interest in property that he owned in Greenwich. DeMarkey moved to discharge the prejudgment real estate attachment, claiming that there were several defenses to NELCO’s commission claim, most of them based on alleged noncompliance with the real estate listing statute, § 20-325a of the General Statutes. The court, Fuller, J., however, denied the motion. DeMarkey appealed to the Appellate Court and pursuant to Practice Book § 4023, we transferred the case to this court.

On appeal, DeMarkey claims that the court, Fuller, J., erred: (1) in finding probable cause that a listing complies with General Statutes § 20-325a, despite its failure to include a notice of negotiability mandated by General Statutes § 20-325b;* ****** (2) in utilizing the provisions of a termination clause in a listing, which violates General Statutes § 20-320 (6), to extend the duration of the listing to encompass the services performed by the broker for which it seeks to collect a commission; (3) in finding probable cause that a listing failing to state the listed price of the property was enforceable; and (4) in concluding that there is probable cause to recover a real estate commission under the second count to the complaint because the listing agreement fails to contain the notice of negotiability mandated by General Statutes § 20-325b and, does not include a leasing price.

I

Because DeMarkey has appealed, pursuant to General Statutes § 52-2781, from an adverse ruling on his motion to dissolve or vacate a prejudgment remedy order, we first must determine the scope of our review. “We have recently examined the trial court’s function in considering an application for prejudgment remedy of attachment: ‘The language of our prejudgment remedy statutes; General Statutes § 52-278a et seq.; requires that the court determine “whether or not there is probable cause to sustain the validity of the plaintiff’s claim”; General Statutes § 52-278d (a); that is to say “probable cause that judgment will be rendered in the matter in favor of the plaintiff.” General Statutes § 52-278c (a) (2). “The legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it.” Wall v. Toomey, 52 Conn. 35, 36 (1884). Probable cause is a flexible common sense standard. It does not demand that a belief be correct or more likely true than false. Texas v. Brown, 460 U.S. 730, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983). The hearing in probable cause for the issuance of a prejudgment remedy is not contemplated to be a full scale trial on the merits of the plaintiff’s claim. The plaintiff does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim. Ledgebrook Condominium Assn., Inc. v. Lusk Corporation, 172 Conn. 577, 584, 376 A.2d 60 (1977). The court’s role in such a hearing is to determine probable success by weighing probabilities. Michael Papa Associates v. Julian, 178 Conn. 446, 447, 423 A.2d 105 (1979).’ Three S. Development Co. v. Santore, 193 Conn. 174, 175-76, 474 A.2d 795 (1984); see also Babiarz v. Hartford Special, Inc., 2 Conn. App. 388, 393, 480 A.2d 561 (1984).” Solomon v. Aberman, 196 Conn. 359, 362-63, 493 A.2d 193 (1985).

As for our standard of review, we have stated: “This court’s role on review of the granting of a prejudgment remedy is very circumscribed.” Three S. Development Co. v. Santore, supra, 176. In its determination of probable cause, “the trial court is vested with broad discretion which is not to be overruled in the absence of clear error. Augeri v. C. F. Wooding Co., 173 Conn. 426, 429, 378 A.2d 538 (1977).” Id. “Since Augeri v. C. F. Wooding Co., supra, we have consistently enunciated our standard of review in these matters. ‘ “In the absence of clear error, this court should not overrule the thoughtful decision of the trial court, which has had an opportunity to assess the legal issues which may be raised and to weigh the credibility of at least some of the witnesses.” ’ Three S. Development Co. v. Santore, supra; William M. Raveis & Associates, Inc. v. Kimball, [186 Conn. 329, 333, 441 A.2d 200 (1982)]; Babiarz v. Hartford Special, Inc., supra, 392-94; see also Michael Papa Associates v. Julian, supra, 447. At this time, therefore, we need only decide whether the trial court’s conclusions were reasonable under the ‘clear error’ standard.” Solomon v. Aberman, supra, 364. Accordingly, we conclude that our standard of review is to determine if the trial court’s denial of DeMarkey’s motion constituted clear error.

II

The gravamen of DeMarkey’s claims is that “the Listing under which [NELCO] seeks to collect a commission fails to include two essential conditions: the statutory notice of negotiability mandated by . . . § 20-325b and, a listing price.” We will consider these claims in the reverse order stated.

A

Under General Statutes § 20-325a (b) a real estate broker cannot bring an action for a real estate commission unless his “acts or services were rendered pursuant to a contract or authorization from the person for whom such acts were done or services rendered. To satisfy the requirements of this subsection any such contract or authorization shall . . . (4) contain the conditions of such contract or authorization . . . . ” In Storm Associates, Inc. v. Baumgold, 186 Conn. 237, 244, 440 A.2d 302 (1982), we considered the requirements of a listing contract under § 20-325a (b) (4) in conjunction with our discussion of the requirements of a sales contract, and we stated: “Its [General Statutes § 20-325a (b) (4)] commandment that the written listing contract contain ‘the conditions of such contract or authorization’ refers to the conditions of the listing contract and not to those of the sales contract. For the listing contract, it suffices to identify the property being offered for sale and the price at which it is to be listed. See Brazo v. Real Estate Commission, [177 Conn. 515, 522, 418 A.2d 883 (1979)].” (Emphasis added.)

In this case, the trial court, Fuller, J., expressly found that the listing agreement did not contain the price at which the property was to be offered for sale. The trial court, however, did not view the absence of a stated price in the listing as invalidating the listing agreement pursuant to § 20-325a (b) (4). Rather, the trial court concluded that, even though the listing agreement did not contain a specific price for a sale or lease of the property, the agreement could “arguably be construed as meaning any price at which the owner agrees to sell or lease the property, i.e., at a price subject to the owner’s approval, as opposed to a price set in advance.” The trial court failed to point to any language in the listing agreement that permits such a construction. In support of its construction, however, the trial court cited Sticklor v. Woodland House Condominium, Inc., 9 Conn. App. 293, 518 A.2d 949 (1986), cert. denied, 202 Conn. 807, 520 A.2d 1288 (1987).

In Sticklor, the Appellate Court held enforceable a listing agreement that failed to include the sale price of the property. In so doing, the Appellate Court concluded that, under the particular facts of that case, § 20-325a (b) (4) did not require that the price be included under the listing agreement Id., 294. We express no opinion concerning the holding in Sticklor, but note that the facts of the instant case distinguish it from Sticklor. In Sticklor, the “property was a 237 unit condominium complex and the broker’s primary obligation was to find potential buyers for the seller rather than to sell the units himself.” Id., 297. From these facts, the Appellate Court concluded that it was apparent that the seller “was reserving to itself the right to determine which unit it was willing to sell and the price it would accept for any given unit.” Id. This case is devoid of any facts indicating any reservation to the seller to determine the sale price of the property. We therefore adhere to our construction of § 20-325a (b) (4), as set forth in Storm Associates, Inc. v. Baumgold, supra, that the listing contract must identify a particular price at which the property is offered for sale, or at least provide a formula by which the price may be determined.

Furthermore, although the granting or denial of a prejudgment remedy involves ordinarily a factual determination, in this action, that factual determination in turn furnishes the predicate for the determination of the legal issue, i.e., whether the listing agreement complies with § 20-325a (b). Whether a particular listing agreement complies with § 20-325a (b) is a question of law. Moreover, our attention has not been directed to any statutory or case law requiring the legal defense asserted in this case to be postponed for consideration until trial. We are persuaded, therefore, that, where the pleadings and exhibits are the only evidentiary concerns, the dictates of judicial economy instruct us to resolve the legal validity of a particular agreement, under an applicable statute at the earliest time practicable. Accordingly, since the trial court made a finding of fact that the listing agreement did not contain a price for the sale of the defendants’ property, we conclude that the listing agreement as a matter of law fails to comply with the requirements of § 20-325a (b) (4) of the General Statutes. See Storm Associates, Inc. v. Baumgold, supra.

Because the listing agreement in this case is unenforceable, it was clear error for the trial court to deny DeMarkey’s motion to dissolve or vacate the prejudgment remedy placed against his property in Greenwich.

B

Returning to the first claim of DeMarkey, that the listing agreement failed to include the essential condition of the statutory notice of negotiability mandated by § 20-325b of the General Statutes, the trial court found that “[t]he listing here and any extension of it did not meet this [§ 20-325b] requirement.” The trial court in its memorandum of decision referred to two Superior Court cases concerning the negotiability issue but, the court refused nonetheless to hold that as a matter of law a listing agreement that failed to comply with § 20-325b precluded granting a prejudgment remedy based on the agreement. Because of our disposition of the issue regarding the listing agreement’s failure to contain the property’s sale price as required by § 20-325a (b) (4), it is unnecessary for us to decide DeMarkey’s negotiability claim. For the same reason, it is not necessary for us to determine the validity of the listing agreement’s automatic extension provision.

Finally, the $30,000 indebtedness alleged in count two of the complaint cannot support a prejudgment remedy since this debt is based on the modification of the listing agreement that we have concluded will not justify the granting of a prejudgment remedy.

There is error in denying DeMarkey’s motion to dissolve or vacate the prejudgment real estate attachment and the case is remanded for further proceedings in accordance with this opinion.

In this opinion Peters, C. J., Healey and Hull, Js., concurred.

Covello, J., dissenting. I dissent.

       The Connecticut Bank and Trust Company is also a defendant in this lawsuit, but is not a party to this appeal.

       The agreement reads as follows:
      “EXCLUSIVE LISTING AGREEMENT
      AGREEMENT made this 22nd day of September, 1986, between,
      Mr. William DeMarkey, Jr. and CBT, Trustee U/W. L. DeMarkey
      101 Stanwich Road 240 Greenwich Avenue
      Greenwich, CT 06830 . Greenwich, CT 06830
      hereinafter called OWNER, and NEW ENGLAND LAND COMPANY, LTD., its principal office at 135 East Putnam Avenue, Greenwich, Connecticut, 06830, hereinafter called AGENT.
      WITNESSETH, that the parties hereto have agreed as follows:
      1. OWNER hereby gives NEW ENGLAND LAND COMPANY, LTD., sole AGENT for and gives to it the exclusive right to lease/sublease the whole or any. part of, and/or sell the property known as
      177 West Putnam Avenue
      Greenwich, CT 06830

        2. OWNER agrees, during the life of this agreement, to refer to AGENT all offers and inquiries with respect to said property. AGENT agrees to diligently investigate and develop such offers and inquiries and to canvass, solicit and otherwise employ its services to bring about a leasing or sale of said property. All leases and contracts of sale are to be approved and executed by the OWNER.
      3. OWNER agrees to pay AGENT, and AGENT agrees to accept as full compensation for its services in connection with such leasing or sale, a commission to be computed upon the rental involved or the gross sale price as the case may be, as provided by Exhibit ‘A’ attached hereto.
      In the event that any such leasing or sale shall be effected by a broker not in the employ of AGENT, OWNER agrees to pay AGENT as full compensation therefore, an amount equal to a commission and one-half as outlined above in Paragraph 3 out of which AGENT shall pay such broker their commission.
      ' 4. AGENT is authorized, to advertise the property, prepare and secure signs, plans, circulate material, and other forms of advertising.
      AGENT is authorized to erect and have cause to be maintained a ‘For Rent’ and/or ‘For Sale’ sign on the property.
      5. This agreement shall become effective as of September 22,1986 and continue in full force and effect until March 23,1987 and thereafter, until terminated by either party giving to the other 30 days prior notice in writing; but upon and after the effective date of termination, OWNER [shall] be obligated to recognize AGENT as procuring broker in any negotiations then pending or begun prior thereto, and shall pay to the AGENT upon the consummation thereof, compensation as provided in paragraph 3 hereof.
      6. Any controversy or claim arising out of, or relating to this agreement, or for the breach thereof, shall be settled by arbitration before the American Arbitration Association.
      7. This agreement contains the entire understanding of the parties and it may not be changed, rescinded or modified orally but only by written instrument duly signed by the parties hereto.
      8. This agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the respective parties hereto.
      9. Commissions are payable at the time the sale is closed as provided in Appendix A. No commission is due unless and until title passes.
      10. This agreement is subject to Public Accommodations Act, Section 46s-64 of the Connecticut General Statutes.”

       Appendix A attached to this agreement reads as follows:
      “APPENDIX A - LISTING AGREEMENT DATED September 22, 1986 FOR 177 WEST PUTNAM AVENUE.
      SCHEDULE A COMMISSION SCHEDULES SALES
      LEASES
      BUSINESS LEASES
      The commission for leasing business property shall be:
      First 5 years’ gross rent 5%
      Years 6 through 10 gross rent 2.5%
      Years 11 through 20 gross rent 2%
      thereafter 1%
      IMPROVED PROPERTY
      The commission for the sale or exchange of all improved property, residential, industrial, and commercial shall be:
      On the sale price: 6%
      Provided that the lease negotiated through the broker contains specific language granting the lessee rights to acquire an equity interest in the leased property, and the unearned portion of the lease commission is offset against the sale commission.
      Otherwise, the commission to the broker on a sale of the leased property to the lessee when combined with the lease commission paid will not exceed $120,000. or fraction thereof for a partial sale.”

       The modification reads as follows:
      “MODIFICATION TO SEPTEMBER 22. 1986 EXCLUSIVE LISTING AGREEMENT
      Paragraph #5 contained within the executed exclusive listing agreement (9/22/86) shall be modified so as to extend the exclusive listing period until September 30, 1987. All other provisions contained within paragraph #5 and throughout the remainder of the agreement including Schedule A and Notes on Leasing Commissions are to remain unaltered and in full effect.

       The text of the March 23, 1988 letter reads as follows:
      “This letter is intended to set forth our mutual understanding with respect to a modification of the above-referenced Exclusive Listing Agreement for the sale and leasing of your building 177 West Putnam Avenue, Greenwich, Connecticut.
      In this regard, we hereby agree that you shall pay us and we shall be deemed to have earned (as of the date hereof) $30,000 120 days from today. This payment is to compensate us for providing you with two ready, willing and able Tenants at your building (Rehoboth Party Delight, Ltd. and Greenwich News, Inc.) and your not executing, in a timely manner, the leases pertaining to same. However, if you do execute and deliver both of these Leases within this time frame then we shall not be paid this $30,000 but shall be paid the normal applicable commission under our original Listing Agreement. This $30,000 payment shall also be made to us if either or both of these leases are not finalized due to a sale of the building.
      The letter is also to confirm that except as modified hereby our original Exclusive Listing Agreement is still in full force and effect.
      If the foregoing is agreeable to you, please so indicate by signing in the space provided below.
      Accepted and Agreed”

       The trial court arrived at the figure of $162,000 by taking 9 percent of the sale price, $1,800,000.

       “[General Statutes] Sec. 20-325a. actions to recover commissions arising out of real estate transactions, (a) No person who is not licensed under the provisions of this chapter, and who was not so licensed at the time he performed the acts or rendered the services for which recovery is sought, shall commence or bring any action in any court of this state, after October 1,1971, to recover any commission, compensation or other payment in respect of any act done or service rendered by him, the doing or rendering of which is prohibited under the provisions of this chapter except by persons duly licensed under this chapter.
      “(b) No person, licensed under the provisions of this chapter, shall commence or bring any action in respect of any acts or services rendered after October 1,1971, as set forth in subsection (a), unless such acts or services were rendered pursuant to a contract or authorization from the person for whom such acts were done or services rendered. To satisfy the requirements of this subsection any such contract or authorization shall (1) be in writing, (2) contain the names and addresses of all the parties thereto, (3) show the date on which such contract was entered into or such authorization given, (4) contain the conditions of such contract or authorization and (5) be signed by the owner or an agent authorized to act on behalf of the owner only by a written document executed in the manner provided for conveyances in section 47-5, and by the real estate broker or his authorized agent.
      “(c) The provisions of this section shall not apply to any person excepted from the provisions of this chapter by section 20-329 with respect to any acts performed by him which are included in such exception.”

       “[General Statutes] Sec. 20-325b. certain real estate agreements to contain notice regarding commissions, requirements. Each written agreement which fixes the compensation to be paid to a real estate broker for the sale of real property shall contain the following statement in not less than ten point boldface type or in a manner which otherwise stands out significantly from the text immediately preceding any provision of such agreement relating to compensation of the broker:
      “NOTICE: THE AMOUNT OR RATE OF REAL ESTATE COMMISSIONS IS NOT FIXED BY LAW. THEY ARE SET BY EACH BROKER INDIVIDUALLY AND MAY BE NEGOTIABLE BETWEEN THE SELLER AND BROKER.”

       “[General Statutes] Sec. 20-320. suspension or revocation of license, fines. The department of consumer protection may, upon the request of the commission or upon the verified complaint in writing of any person, provided such complaint, or such complaint together with evidence, documentary or otherwise, presented in connection therewith, shall make out a prima facie case, investigate the actions of any real estate broker or real estate salesman, or any person who assumes to act in either of such capacities within'this state. The commission shall have the power temporarily to suspend or permanently to revoke any license issued under the provisions of this chapter and, in addition to or in lieu of such suspension or revocation, may, in its discretion, impose a fine of not more than one thousand dollars for the first offense at any time when, after proceedings as provided in section 20-321, it finds that the licensee has by false or fraudulent misrepresentation obtained a license, or that the licensee is guilty of any of the following ... (6) entering into an exclusive listing contract which contains a fixed termination date if such contract also provides for an automatic continuation of the period of such listing beyond such date.

       General Statutes § 52-2781 provides in pertinent part: “appeal, (a) An order (1) granting or denying a prejudgment remedy following a hearing under section 52-278d or (2) granting or denying a motion to dissolve or modify a prejudgment remedy under section 52-278e or (3) granting or denying a motion to preserve an existing prejudgment remedy under section 52-278g shall be deemed a final judgment for purposes of appeal.” Furthermore, § 52-278e of the General Statutes requires, where an ex parte prejudgment real estate attachment has been issued, that notice of the right to move to dissolve be provided. In this case, DeMarkey moved to dissolve and a hearing was held at which he appeared and was heard. Thus, this appeal presents no constitutional problem. See Augeri v. C. F. Wooding Co., 173 Conn. 426, 428, 378 A.2d 538 (1977).

       The Superior Court cases the trial court referred to are Currie v. Marano, Superior Court, judicial district of Waterbury, Docket No. 072774 (November 13,1986) (J. Healey, J.), rev’d on other grounds, 13 Conn. App. 527, 537 A.2d 1036, cert. denied, 207 Conn. 809, 541 A.2d 1238 (1988), and T. R. Preston Co. v. Pasay, Superior Court, judicial district of Wind-ham, Docket No. CV 840028111S (January 23,1985) (Noren, J.). The trial court stated: “While the Superior Court decisions referred to indicate that noncompliance with the notice requirement in [General Statutes] § 20-325b precludes an action to recover a broker’s commission under [General Statutes] § 20-325a (b) and it may be a valid defense at a trial on the merits, in the absence of a higher court decision this court cannot decide that it is a sufficiently clear legal defense to deny the [plaintiff] a [prejudgment remedy]. It is also recognized that there are numerous cases holding that the listing agreement must strictly comply with § 20-325a (b) in order for a real estate broker to recover a commission. See Rostenberg-Doern Co. v. Weiner, 17 Conn. App. 294, 305 [552 A.2d 827 (1989)]; Revere Real Estate, Inc. v. Cerato, 186 Conn. 74, 77 [438 A.2d 1202 (1982)]; Thornton Real Estate, Inc. v. Lobdell, 184 Conn. 228, 229, 230 [439 A.2d 946 (1981)]; Hossan v. Hudiakoff, 178 Conn. 381, 383 [423 A.2d 108 (1979)]; Jay Realty, Inc. v. Ahearn Development Corporation, [189 Conn. 52, 55, 453 A.2d 771 (1983)]; Howland v. Schweir, [7 Conn. App. 709, 714-15, 510 A.2d 215 (1986)]; Arruda Realty, Inc. v. Doyon, 35 Conn. Supp. 617, 620 [401 A.2d 625 (1978)]. None of these cases hold[s] that noncompliance with other broker statutes [is] to be read into § 20-325a.”