text:
    State of Connecticut v. Miguel Roman
    (14073)
    Peters, C. J., Callahan, Borden, Berdon and Norcott, Js.
    Argued September 23
    decision released November 17, 1992

      Margaret P. Levy, for the appellant (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and JohnMassameno, assistant state’s attorney, for the appellee (state).
   Peters, C. J.

The principal issue in this criminal appeal is whether, in the absence of a continuous word-for-word translation of English into Spanish, the trial court should have suppressed, as coerced and involuntary, the inculpatory statements elicited during a custodial interrogation of the defendant, Miguel Roman, a Spanish speaking person. A jury found the defendant guilty of the crime of murder in violation of General Statutes § 53a-54a, and the trial court sentenced him to a term of imprisonment of sixty years. He appeals from the judgment of conviction to this court pursuant to General Statutes § 51-199 (b). We affirm the judgment of the trial court.

The jury could reasonably have found the following underlying facts in support of its ultimate finding that the defendant had strangled the victim. The victim was the defendant’s girlfriend and was pregnant with his child. The defendant had tried, unsuccessfully, to persuade the victim either to have an abortion or to go elsewhere to give birth.

Around 8:30 p.m. on Sunday, January 3, 1988, a neighbor heard sounds of a physical confrontation coming from the vicinity of the apartment where the victim was staying. At the same time, another observer at the site of the apartment saw a car resembling that owned by the defendant.

On Monday, January 4, 1988, a friend was asked, if questioned, to say falsely that she had been with the defendant and Nestor Torres, at a place other than the victim’s apartment, for a period of time including the relevant evening. That day, Torres and the defendant drove to the victim’s apartment, where the defendant nervously approached the door of the apartment, and, without entering, reported having heard running water.

The victim’s body was found on Tuesday, January 5, 1988. The medical examiner concluded that the victim had been physically assaulted and had then been asphyxiated with a heater cord tied around her neck. He placed the time of death at approximately 8 p.m. on January 3, 1988.

The defendant gave the police conflicting information about when he was last in the company of the victim. During the trial, he made a full confession to someone with whom he was sharing incarceration facilities about the circumstances leading to the crime and about his killing of the victim.

In the defendant’s appeal from his conviction for murder, he has raised two contentions that are cognizable on the present record. He maintains that he is entitled to a new trial because the trial court wrongfully: (1) admitted into evidence his postarrest statement to the police; and (2) permitted the state to open its casein-chief after it had rested.

I

At his trial, the defendant sought to suppress three sets of statements that he had made to the police, two of which antedated his arrest, and one of which postdated his arrest. He claimed that these statements were inadmissible because his command of English was so inadequate that his formal waiver of his constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), was ineffective and his statements were constitutionally involuntary. He asserted that only a continuous full translation of the investigatory proceedings into Spanish would have sufficed to meet the requirements of federal constitutional law.

In the present appeal, the defendant’s argument is more limited. His constitutional attack is limited to the admissibility of the statement elicited in his postarrest custodial interrogation. With regard to that interrogation, he no longer challenges the validity of his Miranda waiver. He maintains, instead, that because he received Miranda warnings in Spanish and signed the Miranda waiver in Spanish, it was unconstitutionally coercive, and a violation of his federal due process rights, to have the subsequent interrogation conducted in English.

The defendant was interviewed twice by the police before his arrest. On the first occasion, January 6, after having been advised orally, in English, of his Miranda rights, he said that he had not seen the victim after the Wednesday before her death. Two days later, he was again questioned after having received Miranda warnings in both Spanish and English. On that occasion, in the presence of Jose Morales, a Spanish speaking police officer, he acknowledged having seen the victim at a party on Saturday, January 2, 1988. During the same interview, the defendant inaccurately described his whereabouts on the afternoon of Sunday, January 3,1988. The defendant also represented that Torres had borrowed his car from that Sunday afternoon to the next morning, a representation immediately contradicted by Torres.

The defendant’s postarrest custodial interrogation, on June 10,1988, began with a reading of the defendant’s Miranda rights in English and Spanish. Morales, speaking in Spanish, then reviewed the waiver of rights form with the defendant. The defendant signed the waiver form in its Spanish version. Although Morales was continuously available for translation during the interrogation, the subsequent questioning proceeded in English. The defendant asked Morales to translate some questions into Spanish, and answered questions both in English and in Spanish. He continued to deny having seen the victim on the day of her death. He claimed to have spent Sunday evening shopping with his father and then playing dominoes at home. Near the end of the questioning, he replied affirmatively when asked by Morales, in Spanish, whether he had understood everything that had been asked of him.

At the suppression hearing challenging the admissibility of the statement elicited from the defendant during police interrogation, he testified, through an interpreter, about his lack of familiarity with the English language. Although he acknowledged that he had completed the ninth grade at Hartford High School, he indicated that his school work had been in bilingual courses. He did not state that he had been confused about the meaning of any of the questions put to him at his postarrest custodial interrogation. The state countered with the testimony of George Lopez, who had known the defendant for several years and who told the court that, while the defendant could not speak English well, he had no difficulty understanding what was said to him in English. On this record, amplified by the trial court’s personal observation that the defendant had not routinely availed himself of the interpreter who was available to him during the trial, the trial court concluded that the defendant was conversant in English even though his primary language was Spanish. It therefore concluded that all of his statements to the police were admissible.

The first question for this court is whether the trial court made a finding of fact that was clearly erroneous when it determined that the defendant had a sufficient command of the English language to participate knowingly and willingly in his interrogation by the police. We conclude that the record provides ample support for the trial court’s finding. Indeed, the record contains nothing specifically to the contrary. Although counsel indicated doubts about the defendant’s linguistic capacity to respond to questioning about his conduct, statements of counsel are not evidence. State v. Tillman, 220 Conn. 487, 496, 600 A.2d 738 (1991), cert. denied, U.S. , 112 S, Ct. 3000, 120 L. Ed. 2d 876 (1992); State v. Aillon, 202 Conn. 385, 391, 521 A.2d 555 (1987). The fact that the police had the defendant execute a Miranda waiver in Spanish, to assure the defendant’s understanding of his constitutional right to refuse to participate in the interrogation, does not demonstrate that the defendant, with the assistance of Morales, could not comprehend ordinary questioning in English about recent events in his personal life.

Once this factual question is resolved against the defendant, little remains of his contention that the trial court could not reasonably have found his statements voluntary and uncoerced. The defendant has not challenged either the linguistic competency of Morales to act as an interpreter or his unlimited access to Morales’ services as an interpreter during the entire postarrest interrogation. The defendant’s factual claim of supervening linguistic impairment is inconsistent with his acknowledgment, in Spanish, toward the end of the taped recording of his interview, that he had fully understood what had transpired. In these circumstances, the trial court could reasonably have concluded, by a preponderance of the evidence; State v. Northrop, 213 Conn. 405, 419, 568 A.2d 439 (1990); that conducting the defendant’s questioning in English was not constitutionally defective. The facts developed on this record do not show, as federal constitutional law requires, that the conduct of the police coerced the defendant into making incriminatory statements. See Cobrado v. Connelly, 479 U.S. 157, 167, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986); State v. Northrop, supra; State v. Gonzalez, 206 Conn. 213, 222, 537 A.2d 460 (1988).

To the extent that the defendant’s claim on appeal can be understood as suggesting that, because of his linguistic impairment, the federal constitution required continuous interpretation during his custodial interrogation, we reject such a contention. The federal due process clause requires continuous translations at trial when a non-English speaking defendant cannot understand or appreciate the proceedings. Luna v. Black, 772 F.2d 448, 451 (8th Cir. 1985); United States ex rel. Negron v. New York, 434 F.2d 386, 389 (2d Cir. 1970); cf. 28 U.S.C. § 1827 (1988) (Court Interpreters Act). Failure to provide continuous word-for-word translation will render a trial fundamentally unfair, however, “only on a showing of abuse.” Valladares v. United States, 871 F.2d 1564, 1566 (11th Cir. 1989); see also United States v. Joshi, 896 F.2d 1303, 1309 (11th Cir.), cert. denied sub nom. Panchal v. United States, 498 U.S. 986, 111 S. Ct. 523, 112 L. Ed. 2d 534 (1990). On at least one occasion, a federal court has extended to pretrial hearings the requirement of continuous translations for criminal defendants who cannot understand or appreciate the proceedings. United States v. Cirrincione, 780 F.2d 620, 634 (7th Cir. 1985). We need not consider whether to follow the federal Circuit Court’s extension of the continuous translation rule, however, because here the trial court found that the defendant was “conversant with the English language,” “comport[ed] himself fairly well in the English language,” and “sat through most of the trial without the active use of the interpreter.” See id., 634-35 (lack of inter-prefer at pretrial hearings did not violate due process because defendant could understand and speak English and rarely used the interpreter provided at trial). Because the trial court’s finding about the defendant’s linguistic capacity was not clearly erroneous, his claim of impairment of his due process rights must fail.

II

The defendant’s alternate claim for a new trial challenges the validity of the trial court’s exercise of its discretion to permit the state to open its case against the defendant, after both the state and the defendant had rested, to present the testimony of Ioannis Merkouris, with whom the defendant had been confined during the defendant’s trial. The record does not indicate whether the defendant had orally moved for acquittal in advance of the state’s motion, but it is conceded that he had filed no written motion for acquittal and never advanced any formal argument claiming an evidentiary insufficiency in the case against him.

The testimony offered by the state was evidence of a confession by the defendant to Merkouris, who had been confined to the same prison cellblock as the defendant during the defendant’s trial. Merkouris testified, over the defendant’s objection, that the defendant had told him that he was angry with the victim and that he had gone to the victim’s apartment with the intention of killing her. The defendant further had told him that he had encountered a black male at the victim’s apartment upon his arrival, that the victim had refused to identify this other person after his departure, and that he had then killed the victim.

The issue before this court is whether the trial court abused its discretion in allowing the state to open its case to present the testimony of Merkouris after both the state and the defendant had rested. Our cases have indicated that, except in special circumstances, appellate courts should generally defer to the trial court’s judgment in resolving the admissibility of evidence offered after the parties have rested. See State v. Greene, 209 Conn. 458, 475, 551 A.2d 1231 (1988); State v. Allen, 205 Conn. 370, 380, 533 A.2d 559 (1987); State v. Brigandi, 186 Conn. 521, 545-46, 442 A.2d 927 (1982). Unless the state’s offer seeks to fill an evidentiary gap in its prima facie case that was specifically called to the state’s attention by the defendant’s motion for acquittal; see State v. Allen, supra, 385; the trial court may permit additional evidence to be presented even though that evidence strengthens the case against the defendant. State v. Watson, 165 Conn. 577, 345 A.2d 532 (1973), cert. denied, 416 U.S. 960, 94 S. Ct. 1977, 40 L. Ed. 2d 311 (1974). The defendant’s contention that he did not have adequate time to prepare a cross-examination of this witness cannot be sustained when trial counsel failed to ask for a continuance. Accordingly, we conclude that the trial court did not abuse its discretion in allowing the state to open its case.

The judgment is affirmed.

In this opinion Callahan, Borden and Norcott, Js., concurred.

Berdon, J.,

dissenting. Like Miranda v. Arizona, 384 U.S. 436, 439, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), this case raises “questions which go to the roots of our concepts of American criminal jurisprudence: the restraints society must observe consistent with the Federal Constitution in prosecuting individuals for crime.” More specifically, at issue in this case is whether the custodial interrogation of a defendant, whose primary language is other than English, is admissible when he was questioned by the police without the benefit of a continuous word-for-word translation into his primary language and was compelled to respond in English. At stake is the defendant’s federal constitutional right of due process.

Although the defendant moved to suppress at trial statements made during three interviews with the police, in which they failed to provide him with continuous word-for-word translation, his focus in this appeal is on the postarrest custodial interrogation of June 10,1988. This statement was damaging because he gave varying explanations of his whereabouts in the days just prior to the death of the victim, which tended to incriminate him. The defendant puts his claim in a capsule as follows: “In this case, custodial interrogation followed an arrest by warrant on a murder charge, after a five month investigation by police officers who knew the defendant was primarily Spanish speaking. Under these circumstances, continuous translation should have been provided in order to comply with fundamental fairness and procedural due process under the Fourth, Fifth, and Fourteenth amendments.”

The case law is sparse on the defendant’s right to continuous translation during custodial interrogation when the defendant’s primary language is other than English and he or she is unable fully to comprehend English. A plain reading of Mirandar however, compels me to conclude that not only must an accused voluntarily, knowingly and intelligently waive the right against self-incrimination, but the accused must also be able to comprehend fully the questions posed during interrogation. Furthermore, it is equally imperative that the accused be able to respond intelligently to the police, which requires the ability to communicate in a language that the accused understands. Without this comprehension and ability to respond intelligently, the statements of the accused are not voluntary and the Miranda warnings become meaningless. Physical coercion and “the blood of the accused [are] not the only hallmarkfs] of an unconstitutional inquisition.” Blackburn v. Alabama, 361 U.S. 199, 206, 80 S. Ct. 274, 4 L. Ed. 2d 242 (1960). The requirement that defendants be interrogated in a language they fully comprehend is also a “matter of simple humaneness.” United States ex rel. Negron v. New York, 434 F.2d 386, 390 (2d Cir. 1970).

Thus, in State v. Cervantes, 62 Wash. App. 695, 814 P.2d 1232 (1991), the court suppressed statements obtained from the interrogation of a Spanish speaking defendant because the police allowed a codefendant to translate for the defendant. The court noted that the potential personal bias of the codefendant’s translation could limit the defendant’s ability to understand fully the interrogator’s questions and to express properly his answers on the record. The court held that the defendant’s inability to communicate properly with the police and understand the interrogator’s questions was unfair and violated the defendant’s right to due process. Id., 701; see also Vargas v. Brown, 512 F. Sup. 271, 276 (D.R.I.1981) (interrogation of Spanish speaking witness-suspect who had obvious difficulty speaking English criticized as a “scene worthy of Kafka or Orwell” and statements probably not knowingly and voluntarily given); People v. Turkenich, 137 App. Div. 2d 363, 369-70, 529 N.Y.S.2d 385 (1988) (holding that statements made during custodial interrogation of Russian speaking defendant, without evidence demonstrating that the translation was “sufficient to give the defendant an understanding of the police inquiry,” were additional grounds to suppress the statements).

In this case, on June 10,1988, five months after the crime was committed, the defendant was arrested at his place of employment and taken to police headquarters. At the time of the interrogation, the police knew from previous interviews that the defendant’s primary language was Spanish and that the defendant had problems with the English language. On January 8, 1988, during the second interview, a Spanish speaking detective translated into Spanish most of the questions posed to the defendant. During this interrogation, the defendant occasionally asked for assistance when he was asked questions in English. Although the defendant completed ninth grade at Hartford High School in bilingual courses, it is clear that he had a poor command of the English language and this was readily admitted by the police officers who interrogated him.

The police officers’ knowledge and their concern about the defendant’s fluency in English is underscored by the manner in which they administered his Miranda warnings. During both the January 8 and June 10,1988 interrogations, the police officers meticulously gave the defendant his Miranda warnings in Spanish. The defendant signed a waiver on both occasions that was written in Spanish. Indeed, Officer Ronald Faggaini further demonstrated this concern at the interrogation on June 10 when he stated to the Spanish speaking police officer the following: “Joe [the Spanish speaking officer], after each right, Joe make sure that Miguel [the defendant] understands each right.”

The concern evidenced in administering the Miranda warnings did not spill over into the interrogation of the defendant. After the Miranda warnings were given in Spanish, the police officer insisted on interrogating him in English. The following occurred: “Faggaini [police officer] — Listen, we are gonna try to talk, to talk in English, O.K.! O.K., if you don’t understand what I am saying Joe will help in Spanish O.K. We talked to you before, O.K. so we are going to try to speak up so this thing can record.”

Not content merely to deprive the defendant of continuous word-for-word translation, the police went a step further on June 10 when they prohibited him from answering in Spanish. Every time he lapsed into Spanish, the following occurred: “Joe [the Spanish speaking officer] to Miguel [the defendant] — Tell them in English, because if you don’t they—unintelligible.” Again, later in the interrogation: “Joe to Miguel — Tell them in English. Anything you want to tell them, tell them in English.”

Furthermore, the tape recording of the interrogation admitted into evidence documents the defendant’s attempt to communicate in Spanish. The tape establishes that in the initial stages of the interrogation, after the detectives had requested that the defendant attempt to answer in English with the aid of Detective Morales’ translation, the defendant persistently attempted to communicate in Spanish.

The majority relies upon the trial court’s finding that the defendant “was conversant in English even though his primary language was Spanish,” and concludes that the finding must be upheld unless it was “clearly erroneous.” The majority’s analysis is flawed. The conclusion that the defendant could sufficiently comprehend and converse in the English language is inextricably involved with the voluntariness of the confession. Although we normally give great deference to the factual findings of the trial court, the ultimate issue of whether the statement is voluntary and admissible is a legal determination. Arizona v. Fulminate, 499 U.S. , 111 S. Ct. 1246, 1252, 113 L. Ed. 2d 302, reh. denied, U.S. , 111 S. Ct. 2067, 114 L. Ed. 2d 472 (1991). Accordingly, our standard of review is not whether the fact-finding of the trial court is “clearly erroneous,” but whether, upon our review of the record, the state has proven that the incriminating statements were voluntarily made.

Nevertheless, no matter what the standard of review should be in this case, the trial court should not have concluded that the statements given during the June 10 interrogation were admissible. A review of the totality of the record leads to the inescapable conclusion that the trial court’s finding that the defendant had a sufficient command of the English language to comprehend the questions and respond intelligently was clearly erroneous.

The majority further justifies its decision in part on the following two related grounds: (1) that if the defendant did not understand the police officers he could have consulted the interpreter who was available during the interrogation on June 10, 1988; and (2) that “the defendant had not routinely availed himself of the interpreter who was available to him during the trial.” The simple answer for these claims is the following rhetorical question: how was the Spanish speaking defendant able to determine whether he understood the question in English and whether his response in English meant what he thought it meant, if in fact he did not have command of the English language? Moreover, the Second Circuit decision in United States ex rel. Negron v. New York, supra, should put to rest the two claims advanced by the majority to support its decision. The court stated that it was not “inclined to require that an indigent, poorly educated Puerto Rican thrown into a criminal trial as his initiation to our trial system, come to that trial with a comprehension that the nature of our adversarial processes is such that he is in peril of forfeiting even the rudiments of a fair proceeding unless he insists upon them.” Id., 390.

Next, the majority claims that the defendant did not testify during the suppression hearing “that he had been confused” about the meaning of any question asked during the interrogation. Although there was some ambiguity in the defendant’s testimony during the suppression hearing and confusion as a result of his language disabilities, the record indicates that the defendant did not understand many of the questions asked during interrogation by the officers.

Finally, the majority puts great weight on the testimony of the state’s witness, George Lopez, who stated that he previously knew the defendant and that the defendant could understand English. This testimony must be put in the proper perspective—George Lopez was the victim’s brother and had three criminal cases pending against him. Moreover, Lopez conceded that when he spoke to the defendant, he spoke in Spanish 60 percent of the time, and in English only 40 percent. Lopez testified that the defendant would sometimes ask him to repeat a question or statement in Spanish, but Lopez conveniently added, “He’d understand. He just want me to ask the question in Spanish.” More important, however, Lopez’ testimony must be looked at in the context of this case. The defendant’s claim is not merely that he could not understand English, but also that he could not intelligently converse in English. Lopez testified that when he spoke to the defendant in English that the defendant would respond in Spanish. As Lopez’ testimony explains, the times the defendant responded in English did not involve “big verbal conversation, you know, several words.”

The state argues that even if the statement should have been suppressed, its admission is not reversible error under Arizona v. Fulminante, supra, because the state has proven its admission was harmless beyond a reasonable doubt. This was a thin case; the evidence for the state was not overwhelming. There was no physical evidence linking the defendant to the murder. The core evidence of the state was a “jailhouse confession” allegedly made by the defendant to a pretrial inmate during his trial. Surely, under these circumstances the state has failed to meet its burden of proving that the admissibility of these damaging statements was harmless beyond a reasonable doubt.

The issue in this case boils down to an even more fundamental question—that is, the perception of justice. When the defendant’s primary language is Spanish, and the police officers insist on conducting the interrogation in English, the entire process smacks of unfairness that will result in the perception by the Hispanic community that the criminal justice system is tilted against them. This is especially true in the present case in which a police officer, fluent in English and Spanish, was available and could have provided word-for-word translation for the defendant or could have conducted the interrogation in Spanish. Here, the police were so concerned about the defendant’s comprehension that they directed the Miranda rights to be given in Spanish, knowing full well that without the translation into Spanish the voluntariness of the defendant's statement would be placed in jeopardy. Yet, in this case, the majority allows the state a roundabout run by upholding the validity of the subsequent interrogation conducted in English.

In order for the public to have confidence in our criminal justice system, it is important not only that we do justice but also that all racial and ethnic segments of our population perceive that justice is done. “In our system of justice, not only must the accused be afforded a fair trial, but equally important there must be a perception of fairness by the community and the accused. Anything less not only undermines the credibility of this branch of government but also threatens the very fabric of our democracy.” State v. Tillman, 220 Conn. 487, 514-15, 600 A.2d 738 (1991) (Berdon, J., dissenting), cert. denied, U.S. , 112 S. Ct. 3000, 120 L. Ed. 2d 876 (1992). Indeed, almost forty years ago Justice Frankfurter wrote that “justice must satisfy the appearance of justice.” Offutt v. United States, 348 U.S. 11, 14, 75 S. Ct. 11, 99 L. Ed. 11 (1954). And although the practice and perception of justice involve a variety of levels of government—the police officer, the state’s attorney and the trial judge—to a great extent this court determines for our state residents how rich or thin that justice and perception of justice will be viewed. Unfortunately, the majority opinion today rolls so thin the perception of justice that it develops serious cracks.

The defendant failed to raise any state constitutional issues. Nevertheless, that should not prevent this court from adopting a rule that would ensure the reliability of statements obtained during custodial interrogation of a defendant whose primary language is not English. Where an “issue is of such vital importance to our real and perceived adherence to the rule of law, [we may] in the exercise of our inherent supervisory authority over the administration of justice” require a rule that gives more rights than that of the federal court. State v. Holloway, 209 Conn. 636, 645-46, 553 A.2d 166, cert. denied, 490 U.S. 1071, 109 S. Ct. 2078, 104 L. Ed. 2d 643 (1989). Indeed, this issue before us today should reach that level of concern.

Accordingly, I would hold that before a statement resulting from custodial police interrogation can be introduced, a defendant whose primary language is other than English must be advised in his or her primary language of the following rights: (1) to continuous word-for-word interpretation in that language; and (2) to respond in that language, or alternatively to be interrogated only in the defendant’s primary language. I would further hold that for the state to take advantage of any waiver of this right, it must be proven that the waiver was voluntarily and intelligently made. Anything less would be unfair.

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

       The defendant’s claim of ineffective assistance of counsel must await an appropriate factual record, which can only be developed pursuant to a petition for habeas corpus. State v. Leecan, 198 Conn. 517, 541-42, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986); see also State v. Walker, 215 Conn. 1, 9, 574 A.2d 188 (1990).

       Neither at trial nor in this court has the defendant raised an independent claim under the due process clause of article first, § 8 of the Connecticut constitution.

       The state represented to the court, on May 18,1990, immediately before the defendant rested, that it had only the previous day learned of the existence of Merkouris. The defendant has not contested the accuracy of the state’s representation that it had had no prior knowledge of the existence of this witness or of the testimony that he was prepared to offer.

       To the extent that the defendant intends to raise, as a separate issue, that he was unable effectively to impeach this belatedly identified witness, we conclude that this contention has no merit. The defendant could have asked the trial court for a continuance, but he did not do so. In the absence of such a request, we have no basis for concluding that his opportunity for impeachment was unjustifiably impaired.

       The transcript of the tape is incomplete because it only records Officer Morales’ translations and does not include the defendant’s other attempts to speak in Spanish.

       For example, one exchange proceeded as follows:
      “Faggaini: ... we spoke to you about the murder before.”
      [Conversation in Spanish between Joe and Miguel translated in the transcript as follows:]
      “Joe: He says that he talked to you about the murder before.
      “Miguel: Before, you know the same day (unintelligible).”
      [Dialogue in Spanish between Miguel and Joe omitted from transcript.]
      “Joe: He wants to know if you spoke to her on the day she was killed.
      * * *
      “Faggaini [in English]: O.k. during that week we spoke to you before today, O.K.”
      [Answer in Spanish on tape recording translated in the transcript as follows:]

        “Miguel: In my house.”
      Following the attempted dialogue in Spanish, Detective Faggaini again urged the defendant to respond in English:
      “Faggaini: We are going to try to keep this in English because if we spoke to you in English we can understand each other. ...”
      Despite Faggaini’s assertion that conducting the interrogation in English would improve everyone’s understanding, the tape recording indicates that the defendant was having difficulty responding in English and was attempting to avail himself of Morales’ translation.

       This court has previously held that “[although the issue [of whether waiver was voluntary] is therefore ultimately factual, our usual deference to factfinding by the trial court is qualified, on questions of this nature, by the necessity for a scrupulous examination of the record to ascertain whether such a factual finding is supported by substantial evidence.” State v. Harris, 188 Conn. 574, 580, 452 A.2d 634 (1982), cert. denied, 460 U.S. 1089, 103 S. Ct. 1785, 76 L. Ed. 2d 354 (1983).

       Although the trial court’ characterized the statements made by the defendant during the June 10 interrogation as a “confession,” for the purpose of determining admissibility, it is not necessary that they constitute a confession. “The privilege against self-incrimination protects the individual from being compelled to incriminate himself in any manner; it does not distinguish degrees of incrimination. Similarly, for precisely the same reason, no distinction may be drawn between inculpatory statements and statements alleged to be merely ‘exculpatory.’ If a statement made were in fact truly exculpatory it would, of course, never be used by the prosecution. In fact, statements merely intended to be exculpatory by the defendant are often used to impeach his testimony at trial or to demonstrate untruths in the statement given under interrogation and thus to prove guilt by implication. These statements are incriminating in any meaningful sense of the word and may not be used without the full warnings and effective waiver required for any other statement.” Miranda v. Arizona, 384 U.S. 436, 476-77, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); see Rhode Island v. Innis, 446 U.S. 291, 302 n.5, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980); 1 C. McCormick, Evidence (4th Ed. 1992) c. 14, § 144, pp. 550-55.

       Unfortunately, the majority of this court continues to follow the beat of the federal drummer by holding that the voluntariness of the confession need only be proved by a fair preponderance of the evidence and not by proof beyond a reasonable doubt. This burden of proof to determine the voluntariness of the confession offends our common law and our state constitution. State v. Stanley, 223 Conn. 674, 696-701, 613 A.2d 788 (1992) (Berdon, J., dissenting).

       A review of the tape and the transcript indicates that the defendant was not able to respond intelligently to the questions, as illustrated by the following exchange:
      “Faggaini: He didn’t see Carmen get out of your van.
      “Miguel: He see when he get out was there
      “Faggaini: What do you mean?
      “Miguel: Unintelligible.”
      The confusion evident in the following conversation also highlights the defendant's inability to respond intelligently to the questions:
      “Faggaini: And Ruben is a boyfriend of Carmens[?]
      “Miguel: Yeah, before
      “Faggaini: Before[?]”
      [Answer in Spanish on tape translated in the transcript as follows:]
      “Miguel: I was see, you know, when I met her (unintelligible) understand, before I went out with her they were dating but they had split.

        “Joe: O.K., this guy was going out with her before he was going out with her he . . .
      “Faggaini: Same time you were?
      “Miguel: Yeah.
      “Faggaini: Was he.”
      [Question in Spanish on tape recording translated in the transcript as follows:]
      “Miguel to Joe: What is he saying[?]” (Emphasis added.)
      Significantly, the tape consistently indicates that when the defendant wished to initiate communication with the detectives, rather than respond to their questions, he chose to speak in Spanish.


source: Caselaw Access Project

author: Borden, J.

license: Public Domain

text:
    The Upjohn Company v. Planning and Zoning Commission of the Town of North Haven
    (14427)
    Peters, C. J., Callahan, Borden, Berdon and Norcott, Js.
    Argued September 29
    decision released November 24, 1992

      S. Robert Jelley, with whom were William J. Doyle, Brian J. Casey and, on the brief, Patrick J. Monahan, for the appellant (plaintiff).

      Robert K. Ciulla, with whom was Charles R. Andres, for the appellee (defendant).
   Borden, J.

The plaintiff, The Upjohn Company (Upjohn), appeals from the judgment of the trial court dismissing its zoning appeal from the decision of the defendant, the planning and zoning commission of North Haven (commission). The commission had denied Upjohn’s applications seeking an excavation permit, a fill permit and two site plan approvals, in connection with its plan for permanent storage and closure of a solid sludge hazardous waste pile located on Upjohn’s property on Sackett Point Road in North Haven. Upjohn claims that the trial court improperly: (1) determined that there was sufficient evidence in the record to support a finding that Upjohn’s storage of the waste was not an accessory use permitted by the town’s zoning regulations; and (2) concluded that federal law did not preempt the commission from denying Upjohn’s applications. We affirm the judgment of the trial court.

This appeal comes to us after related federal litigation between the same parties involving some of the same issues. See North Haven Planning & Zoning Commission v. Upjohn Co., 753 F. Sup. 423 (D. Conn.) (North Haven I), aff’d, 921 F.2d 27 (2d Cir. 1990) (North Haven II), cert. denied, U.S. , 111 S. Ct. 2016, 114 L. Ed. 2d 102 (1991). In light of the record in this case and the facts found in the federal court, the following facts are undisputed for purposes of this appeal.

In 1962, Upjohn began to produce synthetic organic chemicals at its manufacturing site located on the banks of the Quinnipiac River in North Haven. Wastewater is a byproduct of this manufacturing process. In 1968, Upjohn began to channel the wastewater through a series of lágoons in order to permit solids to settle before the water was discharged into the river. Upjohn dredged the solid waste material, known as sludge, that had accumulated in the lagoons and, in 1973, began to place this solid waste material on its property near a lagoon that contained an aeration device. The resulting sludge pile, which is the subject of this litigation, consists of a number of chemical materials that are classified as hazardous waste under the Federal Resource Conservation Recovery Act (RCRA). 42 U.S.C. § 6901 et seq. By 1977, the sludge pile covered approximately 4.25 acres, and by 1985 it stood approximately forty feet high and contained approximately 83,000 cubic yards of sludge.

Some time during the late 1970s, the commission became aware of the manner in which Upjohn was disposing of its sludge. Numerous communications between the parties followed regarding Upjohn’s waste-water treatment and disposal system. In 1983, the commission granted Upjohn’s application for permits to improve its wastewater treatment system, subject to numerous conditions, one of which was that Upjohn submit a plan and timetable for the removal of all existing sludge.

After a partial collapse of the pile in April, 1985, Upjohn removed approximately 27,000 tons of the sludge off-site, implemented a treatment system that significantly reduced the amount of waste material produced, and stopped placing additional sludge on the pile. Thereafter, Upjohn hired Malcolm Pirnie, Inc. (Pirnie), an environmental consulting firm, to evaluate the various ways of addressing the environmental issues posed by the sludge pile. Pirnie developed a plan for capping the pile in two stages: adding six inches of gravel; and then replacing the gravel layer with two feet of vegetated cover soil and a synthetic membrane. Under this plan, the capped sludge pile and the subsurface groundwater were to be monitored for hazardous waste leachate for thirty years.

In 1989, the commission and its zoning enforcement officer sued Upjohn in the Superior Court to enjoin Upjohn from implementing the plan to cap the sludge pile, and to require Upjohn to remove the sludge. Upjohn removed the case to the United States District Court for the District of Connecticut, and counterclaimed to enjoin the commission from enforcing any local regulations prohibiting Upjohn from implementing its plan and its new wastewater treatment system. After a full trial, the federal court, Daly, J., granted in part the relief sought by the commission by enjoining Upjohn “from implementing its temporary or final closure plan of the . . . sludge pile until such time as it has obtained the necessary permits from the [commission,” and denied the relief sought by Upjohn. North Haven I, supra, 432. Upjohn appealed, and the Second Circuit Court of Appeals affirmed. North Haven II, supra.

Thereafter, Upjohn filed the applications involved in this case. The applications sought to implement Upjohn’s plan to install a permanent cap on the sludge pile and to close it in a manner that would leave it permanently on the property. After a full public hearing, the commission denied the applications for the stated reason that the sludge pile constituted an ongoing zoning violation. Upjohn appealed to the trial court, which dismissed the appeal. This appeal followed.

I

Upjohn first claims that the trial court improperly concluded that there was sufficient evidence in the record from which the commission could have determined that the permanent on-site storage of solid sludge hazardous waste was not an accessory use permitted under North Haven’s zoning regulations. We disagree.

This claim arises in the following procedural context. Upjohn’s property is located in an industrial IG-80 zone. Chemical manufacturing is a permitted use in that zone. The sole basis of Upjohn’s applications to the commission, and the sole basis upon which it argued to the commission in support of its applications, was that the use contemplated by the applications, namely, the permanent on-site storage of the sludge pile, was a permitted use under § 3.27.2.24 of the zoning regulations. Upjohn did not claim before the commission that the sludge pile was an accessory use incidental to its permitted use of chemical manufacturing in an industrial IG-80 zone, pursuant to §§ 6.1 and 6.1.71 of the zoning regulations. Accordingly, the commission had no occasion to consider whether the sludge pile constituted such an accessory use.

On appeal to the trial court, however, Upjohn claimed, among other things, that the commission had acted arbitrarily, capriciously and in excess of its statutory powers because the maintenance of the sludge pile was an accessory use incidental to Upjohn’s permitted use of chemical manufacturing in an industrial IG-80 zone. Upjohn argued that the pile therefore did not constitute a zoning violation as claimed by the commission. In response, the trial court found that “Upjohn was well aware . . . that the Commission considered the sludge pile a use not authorized by the zoning regulations. Upjohn had ample opportunity to present any evidence to establish that the use was in fact a permitted accessory use but did not do so.”

The trial court also concluded that the “evidence on the record supports the determination that the maintenance of a four-acre sludge pile does not constitute an accessory use pursuant to § 6.1.71 of the regulations, which permits ‘accessory uses customarily incidental to a permitted use on the same premises.’ ” Upjohn seizes on this second, alternative holding of the trial court as the basis of its claim in this court.

Upjohn argues that the trial court’s judgment must be reversed because there is no evidence in the administrative record to support the trial court’s conclusion that the “record supports the determination that the maintenance of . . . [the] sludge pile does not constitute an accessory use” under the regulations. Upjohn’s argument, however, turns an applicant’s burden of persuasion on its head.

We first note that the trial court concluded that “[cjontrary to Upjohn’s argument, the fact that North Haven permits some waste storage upon prior application and approval pursuant to § 3.27.2.24 of its zoning regulations does not entitle Upjohn to approval of its decision to create and to make permanent a pile of waste for which approval was neither sought nor granted.” The trial court rejected on its merits, therefore, the only basis for maintenance of the sludge pile that Upjohn had presented to the commission, namely, that the pile was permitted under § 3.27.2.24. Upjohn has not challenged that conclusion in this appeal.

In general terms, an accessory use is a use that is customary and incidental to a permitted primary use. It is dependent on or pertains to the primary use. Lawrence v. Zoning Board of Appeals, 158 Conn. 509, 511-12, 264 A.2d 552 (1969). Whether a particular use qualifies as an accessory use is ordinarily a question of fact for the zoning authority, to be determined by it “with a liberal discretion.” Id., 513-14.

Upjohn was the applicant before the commission and therefore had the burden of persuading the commission that it was entitled to the permits that it sought. See Garibaldi v. Zoning Board of Appeals, 163 Conn. 235, 239, 303 A.2d 743 (1972). If Upjohn wished to claim that it was entitled to approval of its applications because its sludge pile was an accessory use, it was obligated to present that claim with supporting evidence to the commission, to whom the factual question was committed. It did not do so. Therefore, it is not entitled to appellate review of that claim. See Finkenstein v. Administrator, 192 Conn. 104, 112, 470 A.2d 1196 (1984) (appellant not entitled to review of specific issue not properly raised before administrative agency). Upjohn’s argument would require the bizarre result of reversing the commission’s decision for lack of sufficient evidence in the record to support a factual finding on which Upjohn declined to offer evidence, despite its burden of persuasion thereon. We refuse to impose such an impractical rule. Indeed, to hold otherwise would require a zoning board, faced with a request for a permit on one specific basis, to insulate its decision from reversal on appeal only by searching, sua sponte, through the zoning regulations for some other unspecified, possible basis for the permit so as to adduce evidence to reject that other basis. Upjohn cannot prevail on this claim.

II

Upjohn next claims that the trial court improperly rejected its contention that the approval of Upjohn’s capping and closure plan, by the United States environmental protection agency (EPA) and by the Connecticut department of environmental protection (DEP), preempted the commission from denying Upjohn’s applications. The commission responds that (1) Upjohn is collaterally estopped from relitigating the preemption issue because that issue was decided adversely to Upjohn in the federal litigation, and (2) in any event, the trial court was correct in its analysis of the merits of the preemption issue. We agree with the commission that Upjohn is collaterally estopped from relitigating this issue. We therefore need not reach its merits.

This claim arises in the following procedural context. Under the RCRA and the applicable federal regulations, Upjohn was required to submit its capping and closure plan for approval by the EPA and DEP. By a joint letter dated September 29,1989, both agencies approved the plan. They stated that “the plan complies with the closure requirements pursuant to Section 22a-449 (c)-29 of the Regulations of Connecticut State Agencies, and with Title 40 Part 265 Subparts G and N of the Code of Federal Regulations. Both Agencies hereby approve the plan,” subject to certain conditions not relevant to this case. They also stated, however, that “[tjhis Approval does not relieve the facility of the obligation to obtain any other authorizations as may be required by other provisions of the Connecticut General Statutes, Regulations of Connecticut State Agencies, Code of Federal Regulations, or Federal Statutes.”

In the litigation in the United States District Court, Upjohn “claimed . . . that federal law preempts the local [zoning] requirements, and . . . filed a counterclaim seeking to restrain the [commission] from enforcing the [zoning] regulations so as to prevent Upjohn from implementing the plan . . . .” North Haven I, supra, 428. The District Court, therefore, considered that it “needs to resolve whether RCRA and the EPA/DEP Approval preempts the local zoning regulations and the Commission in these respects.” Id.

The District Court thoroughly analyzed Upjohn’s preemption claim. It first noted that “Congress . . . neither expressly preempted nor impliedly occupied the entire field of hazardous waste regulation through RCRA. ... In fact, one of RCRA’s express objectives is to establish a cooperative effort among the federal, state, and local governments and private enterprise to carry out the purposes of the Act. 42 U.S.C. § 6902 (a) (7).” Id., 429. The court also noted that the Act’s savings clause permits states and municipalities to impose requirements more stringent than those imposed by the Act. Id.; see footnote 6. After consideration of the case law upon which Upjohn relied for its preemption claim, and consideration of “the federal law and local law allegedly in conflict in this case,” the court concluded that “[i]t is clear from the text of the Act that closure can be accomplished through any means approved by the EPA, including the removal of hazardous materials.” Id., 430.

Furthermore, the District Court, after considering the zoning regulations, as interpreted by the commission and its zoning enforcement officer, concluded that the case did not present either a direct or an indirect conflict with federal authority. Id., 431. After noting that “the Commission requires [Upjohn] to remove the materials, rather than conduct the federally approved activities on its own property,” the court concluded that “[rjather than conflicting with RCRA, this would seem to be the exact sort of site selection process, or application of more stringent standards, envisioned by the savings clause. 42 U.S.C. § 6929.” Id.

The District Court was not persuaded by Upjohn’s argument that “the Approval constitutes an EPA determination that Upjohn’s plan represents the most sound environmental action, and therefore any obstacle to its implementation is an obstacle to congressional goals . . . .” Id., 431-32. The court noted that “[tjhere are many methods in which a hazardous waste site might be closed in accordance with RCRA, including removal.” Id., 432. It rejected Upjohn’s contention that the agency approval had determined that Upjohn’s plan was the “most environmentally protective.” (Emphasis in original.) Id. The court found significant that the EPA and the DEP had issued an approval, rather than an order, and the court refused to draw any conclusion “from the fact that the agencies issued the Approval with knowledge that the Commission considered the presence of the unclosed pile a zoning violation.” Id. Finally, the court noted that “the language of the Approval itself includes that it does not relieve Upjohn from obtaining any further authorizations required by the Connecticut General Statutes, which provide for the enactment of local zoning regulations. . . . For all of the foregoing reasons, and in light of the RCRA savings clause providing for a role for local government, the Court finds that the Approval does not preempt the Commission’s actions or the local zoning requirements.” Id.

On appeal to the Second Circuit Court of Appeals, Upjohn contended “that the district court erred in concluding that RCRA does not preempt the Town’s zoning regulations . . . North Haven II, supra, 27. In a per curiam opinion, the Circuit Court “considered all of Upjohn’s arguments on this appeal and . . . found them to be without merit.” Id. Specifically, the court cited the RCRA savings clause, and further noted that “the approval given by EPA and DEP to Upjohn’s plan to cap its sludge pile stated that the approval did. not relieve Upjohn from its obligation ‘to obtain any other authorizations [that] may be required by other provisions of the Connecticut General Statutes,” including local zoning regulations. Id., 27-28. Finally, the court recognized that, “[consistent with the view that the approval was thus not intended to preempt local zoning regulations, EPA and DEP responded to public comments and questions by stating that if the Connecticut courts upheld a ruling that Upjohn’s current plan would violate zoning regulations, Upjohn would have to submit to EPA and DEP a new plan for review and approval.” Id. The court, therefore, saw “no error in the rulings of the district court that federal law and regulatory actions have not preempted the Town’s zoning regulations,” and affirmed the judgment “substantially for the reasons stated in the Memorandum of Decision of Judge Daly dated May 31, 1990, published at 753 F. Sup. 423 (1990).” Id.

The doctrine of collateral estoppel, or issue preclusion, provides that if “an issue of fact or law is actually litigated and determined by a valid and final judgment, the determination is conclusive in a subsequent action between the same parties, whether on the same or a different claim.” (Internal quotation marks omitted.) Saporoso v. Aetna Life & Casualty Co., 221 Conn. 356, 367, 603 A.2d 1160 (1992). In order for collateral estoppel to apply, however, there must be an identity of issues, that is, the prior litigation must have resolved the same legal or factual issue that is present in the second litigation. P.X. Restaurant, Inc. v. Windsor, 189 Conn. 153, 161, 454 A.2d 1258 (1983).

The opinions of both the United States District Court and the Second Circuit Court of Appeals make it quite clear that those courts fully considered and determined, adversely to Upjohn, the issue of whether the commission was preempted by federal law and the EPA and DEP approval from enforcing the zoning regulations so as to bar Upjohn’s capping and closure plan. This is the same issue that Upjohn attempts to litigate in these state proceedings. Collateral estoppel bars Upjohn from doing so.

Upjohn argues, however, that there is no identity of issues in the present appeal because “[t]he Federal District Court holding was limited to the validity of a facial preemption challenge to the Commission’s regulations and did not involve a preemption challenge to the Commission’s interpretation and application of those regulations in a specific factual setting and in the face of an EPA/DEP approval of the closure plan pursuant to RCRA.” Upjohn contends that the District Court, in itsMay 31,1990 decision, held only that “(1) the . . . zoning regulations ... do not on their face conflict with RCRA and thus are not . . . preempted, and (2) Upjohn had not yet applied to the Commission for said permits and approval.” This appeal, Upjohn argues, involves the different issue of whether the commission’s decision, dated September 10,1990, after the EPA and DEP approval, creates a direct conflict between the environmental approval and the zoning regulations and enforcement. The record does not support Upjohn’s contentions.

First, neither the District Court nor the Court of Appeals confined its preemption analysis to the issue of whether there was simply a facial conflict between the environmental approval and the regulations. This conclusion is compelled, not only by a thorough reading of both fact based opinions, but by their explicit language as well. The District Court concluded “that the Approval does not preempt the Commission's actions or the heal zoning requirements.” (Emphasis added.) North Haven I, supra, 432. The Court of Appeals noted the recognition by EPA and DEP that, if the commission’s contention of a zoning violation were upheld by our courts, Upjohn would be required to reapply for approval. That court also affirmed the District Court’s judgment “substantially for the reasons stated” in the District Court’s opinion. North Haven II, supra, 28.

Indeed, those courts were required to go beyond a claim of facial conflict because Upjohn’s preemption claim required the courts “to consider the relationship between state and federal laws as they are interpreted and applied, not merely as they are written.” Jones v. Rath Packing Co., 430 U.S. 519, 526, 97 S. Ct. 1305, 51 L. Ed. 2d 604 (1977). Upjohn’s argument would have us read the opinions of both federal courts as having overlooked this fundamental tenet of preemption analysis. We cannot do so.

Second, it is immaterial that, when the District Court decided the preemption issue, Upjohn had not yet applied to the commission for the permits involved in this case. The EPA and DEP approval preceded the entire federal litigation, at both the trial and appellate levels. The federal courts’ preemption analysis focused, on one hand, entirely on the alleged conflict between that approval, and, on the other hand, on the zoning regulations and the commission’s claim that Upjohn was in violation thereof. Inherent in that analysis was both the assumption that Upjohn was in violation of the zoning regulations, and the recognition that the EPA and DEP approval was contingent upon complianee with such regulations. The District Court explicitly-adopted as a premise of its decision that Upjohn was in violation of the zoning regulations; see footnote 7; North Haven I, supra, 527; and the Circuit Court did so implicitly by recognizing that Upjohn would have to reapply for approval if the state courts upheld a ruling that Upjohn’s plan constituted a zoning violation. Thus, the subsequent decision of the commission denying the applications on the ground of the existence of a zoning violation had been fully anticipated by the federal courts in their preemption analysis.

The judgment is affirmed.

In this opinion the other justices concurred.

       Following the Appellate Court’s grant of the plaintiff’s petition for certification to appeal, the plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

       The enforceability of this condition is the subject of one of the companion appeals in this court. See Upjohn Co. v. Zoning Board of Appeals, 224 Conn. 96, 616 A.2d 793 (1992).

       Pirnie estimated in 1986 that carting the sludge away would cost $22,600,000; incineration and carting away would cost $19,700,000; and chemical fixation and carting away would cost $40,500,000; whereas leaving the pile in place and capping it would cost $900,000. There was evidence produced in the federal trial between the same parties that some chemical manufacturers remove their waste off-site, others recycle and reuse it, others incinerate it, and still others use combinations of methods of on-site disposal similar to the method proposed by Upjohn. See North Haven Planning & Zoning Commission v. Upjohn Co., 753 F. Sup. 423, 425 (D. Conn.), aff'd, 921 F.2d 27 (2d Cir. 1990), cert. denied, U.S. , 111 S. Ct. 2016, 114 L. Ed. 2d 102 (1991).

       Section 3.27 of the North Haven zoning regulations, entitled “Site Plan Approval, Applicability,” provides in pertinent part: “To aid in determining the conformity of a proposed building or use with specific provisions of these Regulations, approval of a site plan by the Planning and Zoning Commission is required for: (a) the development or redevelopment of any property or structure for a new use, (b) the expansion or relocation of any existing use, or (c) any change of use of a property or structure. . . .
      “All site development and all use of the property shall be in conformance with approved site plan and all other provisions of these Regulations. No certificate of Zoning Compliance shall be issued until all such requirements have been met to the satisfaction of the Planning and Zoning Commission. Continued conformance with the approved site plan including the maintenance of all landscaping shall be a requirement of the continued validity of any such Certificate of Zoning Compliance.
      “3.27.1 Standards The Planning and Zoning Commission shall not approve a duly submitted site plan unless it shall find that such plan conforms to the requirements of these Regulations. In reviewing the site plan, the Planning and Zoning Commission shall also take into consideration the public health, safety and general welfare, and shall set appropriate conditions and safeguards which are in harmony with the general purpose and intent of these regulations, particularly in regard to achieving the following . . .
      “3.27.2.24 No storage of any type, including the temporary or permanent storage of waste products or material shall be permitted outside of an enclosed building without the expressed site plan approval of the Planning and Zoning Commission. In regarding such storage, the Commission shall consider the impact upon the public safety, public health, sanitation and aesthetics. The Commission may prohibit or may regulate such storage including but not limited to the amount, location, enclosure, screening, scheduled removal and the nature of the materials to be stored.”

       Sections 6.1 and 6.1.71 of the North Haven zoning regulations provide in relevant part: “No use shall be permitted in any Commercial or Industrial Districts except . . . [accessory uses customarily incidental to a permitted use on the same premises.”

       The RCRA was enacted in 1976 to assure that waste management practices are conducted in a manner that protects human health and the environment. 42 U.S.C. § 6902 (4). The act creates a partnership between the federal government and the states to carry out its purposes. 42 U.S.C. § 6902 (1). The act also provides: “Nothing in this chapter . . . shall be construed to prohibit any State or political subdivision thereof from imposing any requirements, including those for site selection, which are more stringent than those imposed by such [federal] regulations.” 42 U.S.C. § 6929.

       This refusal was consistent with the District Court’s view, expressed earlier in its opinion, that “resolution of Upjohn’s contention that it has not committed a zoning violation is not properly before this Court. . . . For purposes of this dispute, the Court must consider that, as matters currently stand, the presence of the pile on the Upjohn property constitutes a zoning violation.” North Haven Planning & Zoning Commission v. Upjohn Co., 753 F. Sup. 423, 427 (D. Conn. 1990) (North Haven I).


text:
    The Upjohn Company v. Zoning Board of Appeals of the Town of North Haven
    (14428)
    Peters, C. J., Callahan, Borden, Berdon and Norcott, Js.
    Argued.September 29
    decision released November 24, 1992

      Robert K. Ciulla, with whom was Charles R. Andres, for the appellant-appellee (defendant).

      S. Robert Jelley, with whom were William J. Doyle, Brian J. Doyle and, on the brief, Patrick J. Monahan, for the appellee-appellant (plaintiff).
   Borden, J.

The dispositive issue of this appeal and cross appeal is whether the plaintiff, The Upjohn Company (Upjohn), may collaterally attack, in a zoning enforcement proceeding brought in 1986, the validity of a condition to zoning permits that had been imposed in 1983 but that had not been challenged by direct appeal at that time. The defendant, the zoning board of appeals of the town of North Haven (board), appeals and Upjohn cross appeals from the judgment of the trial court sustaining Upjohn’s zoning appeal from a decision of the board. The board’s decision had upheld a cease and desist order issued by the North Haven zoning enforcement officer requiring Upjohn to remove a sludge pile from its property located on Sackett Point Road in North Haven.

In its appeal, the board claims that the trial court: (1) applied an improper analysis to the December, 1982 applications for fill permits and site plan approval that generated the imposed condition involved in this case; (2) improperly substituted its judgment for that of the board regarding the validity of the condition; and (3) improperly concluded that Upjohn was entitled to make a collateral attack on the 1983 condition in the 1986 enforcement proceedings. In its cross appeal, Upjohn claims that the trial court improperly concluded that there was a sufficient record to support a determination that the maintenance of the sludge pile was not an accessory use under the North Haven zoning regulations. On the board’s appeal, we agree with its third claim and need not, therefore, consider its first two claims. We consider Upjohn’s cross appeal moot. We therefore reverse the judgment of the trial court, and dismiss the cross appeal.

The Board’s Appeal

The facts are undisputed. On December 22, 1982, Upjohn filed with the North Haven planning and zoning commission (commission) three applications to erect and enclose certain structures in connection with the wastewater treatment system on its property: (1) for a fill permit to cap an old polishing lagoon; (2) for a fill permit to accommodate a structure on an existing aeration lagoon; and (3) for site plan approval to enclose an existing aeration lagoon. On January 23,1983, the commission held a public hearing on the applications and, on February 14,1983, approved the applications, subject, however, to twenty conditions.

At issue in this case is condition seven of the February 14, 1983 approval. That condition provided “that a plan be submitted with a timetable for the elimination of future sludge production and removal of all existing sludge from the Upjohn site.” Upjohn did not appeal or otherwise challenge the validity or imposition of condition seven. After considerable subsequent correspondence between Upjohn and the commission regarding the sludge pile, the zoning enforcement officer, claiming that Upjohn was in violation of condition seven, on May 16,1986, issued a cease and desist order to Upjohn requiring that it remove all the existing sludge from the property.

Upjohn appealed the cease and desist order to the board, claiming that: (1) condition seven was void and unenforceable because it was unrelated to the subject of the permits to which it had been attached in 1983; (2) the sludge pile constituted a valid nonconforming use under the zoning regulations and, therefore, the commission could not have legally required its removal in 1983; (3) Upjohn had complied with condition seven by proposing a schedule for eventual removal of the sludge pile; and (4) state and federal environmental statutes preempted the local zoning regulations and condition seven. The board denied Upjohn’s appeal.

Upjohn appealed from that denial to the trial court. In its first memorandum of decision, the court dismissed Upjohn's appeal, ruling, inter alia, that Upjohn could not collaterally attack in these enforcement proceedings the validity of condition seven because it had accepted the benefits of the permits without appealing from the condition imposed on the permits. Subsequently, however, the court, sua sponte, opened the judgment it had rendered, and issued a corrected memorandum of decision. In its second decision, the court held that, because the 1982 applications were for site plan approval and fill permits governed by General Statutes § 8-3 (g), condition seven had been “beyond the authority conferred on the Commission pursuant to § 8-3 (g),” and therefore not within the commission’s subject matter jurisdiction. Accordingly, the trial court rendered a judgment sustaining Upjohn’s appeal on that ground. This appeal followed.

The board claims that the trial court incorrectly concluded that Upjohn could collaterally attack the validity of condition seven in the enforcement proceedings more than three years after its imposition by the commission and acceptance by Upjohn. We agree.

We begin by reasserting the accepted principle that a municipality’s zoning powers are limited by the zoning statutes and the municipality’s zoning regulations. “As a creature of the state, the . . . [town, whether acting itself or through its planning commission,] can exercise only such powers as are expressly granted to it, or such powers as are necessary to enable it to discharge the duties and carry into effect the objects and purposes of its creation. Baker v. Norwalk, 152 Conn. 312, 314, 206 A.2d 428 [1965], and cases cited therein; Bredice v. Norwalk, 152 Conn. 287, 292, 206 A.2d 433 [1964]; State ex rel. Sloane v. Reidy, 152 Conn. 419, 423, 209 A.2d 674 [1965]. In other words, in order to determine whether [a] regulation . . . was within the authority of the commission to enact, we do not search for a statutory prohibition against such an enactment; rather, we must search for statutory authority for the enactment. Avonside, Inc. v. Zoning & Planning Com mission, 153 Conn. 232, 236, 215 A.2d 409 (1965); Blue Sky Bar, Inc. v. Stratford, 203 Conn. 14, 19, 523 A.2d 467 (1987).” (Internal quotation marks omitted.) Builders Service Corporation v. Planning & Zoning Commission, 208 Conn. 267, 274-75, 545 A.2d 530 (1988). Application of this principle has required that we invalidate, on direct appeal, conditions to a special permit that the planning and zoning commission had no authority to impose. Beckish v. Planning & Zoning Commission, 162 Conn. 11, 18, 291 A.2d 208 (1971).

We also recognize the principle that certain actions of zoning authorities may be attacked in an independent action after the time period for an appeal has passed. The application of this principle, however, has generally been confined to cases of defective statutorily required published notice to the public. See, e.g., DiCamillo v. Clomiro, 174 Conn. 351, 353-54, 387 A.2d 560 (1978); Schrobar v. Jensen, 158 Conn. 202, 208, 257 A.2d 806 (1969); Smith v. F. W. Woolworth Co., 142 Conn. 88, 94, 111 A.2d 552 (1955). The rationale for this principle is that “[i]n the absence of newspaper publication, unknown individuals with an interest in zoning matters would have no way of learning what zoning decisions were being contemplated.” Lauer v. Zoning Commission, 220 Conn. 455, 462, 600 A.2d 310 (1991). We have thus regarded a failure to provide the required published notice as a subject matter jurisdictional defect rendering the zoning action void. Id.

Neither of these principles, however, requires the conclusion, implicit in Upjohn’s position in this case, that the recipient of a zoning permit that had been granted subject to a condition may accept both the benefits of the permit and the condition attached to it, by failing to challenge the condition by way of direct appeal; see Beckish v. Planning & Zoning Commission, supra; and then, years later, defend against the enforcement of the condition by attacking its validity ab initio. We conclude that Upjohn, having secured the permits in 1983 subject to condition seven and not having challenged the condition by appeal at that time, was precluded from doing so in the 1986 enforcement proceedings at issue in this case. Several considerations lead us to this conclusion.

First, we have uniformly held that failure to file a zoning appeal within the statutory time period deprives the trial court of jurisdiction over the appeal. Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989); Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 593, 409 A.2d 1029 (1979). We have also consistently held that “when a party has a statutory right of appeal from the decision of an administrative agency, he may not, instead of appealing, bring an independent action to test the very issue which the appeal was designed to test.” Carpenter v. Planning & Zoning Commission, supra, 598, and cases cited therein. Moreover, we have ordinarily recognized that the failure of a party to appeal from the action of a zoning authority renders that action final so that the correctness of that action is no longer subject to review by a court. Haynes v. Power Facility Evaluation Council, 177 Conn. 623, 629-30, 419 A.2d 342 (1979); see Beit Havurah v. Zoning Board of Appeals, 177 Conn. 440, 418 A.2d 82 (1979). All of these rules rest in large part, at least in the zoning context, on the need for stability in land use planning and the need for justified reliance by all interested parties—the interested property owner, any interested neighbors and the town-on the decisions of the zoning authorities. It would be inconsistent with those needs to permit, in this case, a challenge to a condition imposed on a zoning permit when the town seeks to enforce it more than three years later. See Spectrum of Connecticut, Inc. v. Planning & Zoning Commission, 13 Conn. App. 159, 163, 535 A.2d 382, cert. denied, 207 Conn. 804, 540 A.2d 373 (1988) (permitting collateral attack on special permit condition would make land use regulation system impractical and unworkable).

Furthermore, our conclusion is not undercut by the absence of specific evidence in this case that the town intentionally eschewed an earlier cease and desist order based, not on condition seven, but on the town’s longstanding position that the sludge pile constituted a zoning violation. The record is clear that, once condition seven had been imposed, the town regarded the condition as dispositive of any claim by Upjohn that it was entitled to maintain the sludge pile indefinitely, and Upjohn was aware of the town’s understanding. Thus, the town may well have delayed earlier enforcement action against what it had long regarded as Upjohn’s zoning violation precisely because the town knew that it ultimately had the weapon of condition seven. It would be fundamentally unfair to the town, and to its citizens, to permit Upjohn to lull the town into inaction and take advantage of that delay by allowing Upjohn to challenge condition seven at this late date.

Finally, although Upjohn’s claim rests on a perceived lack of subject matter jurisdiction in the commission to have attached condition seven to the 1983 permits, we note that there are limits to the notion that subject matter jurisdictional defects may be raised at any time. “As we have only recently observed . . . [t]he modern law of civil procedure suggests that even litigation about subject matter jurisdiction should take into account the importance of the principle of the finality of judgments, particularly when the parties have had a full opportunity originally to contest the jurisdiction of the adjudicatory tribunal. James & Hazard, Civil Procedure (2d Ed. 1977) § 13.16, esp. 695-97; Restatement (Second), Judgments 15 (Tent. Draft No. 5 1978). Monroe v. Monroe, 177 Conn. 173, 178, 413 A.2d 819 [1979]. Under this rationale, at least where the lack of jurisdiction is not entirely obvious, the critical considerations are whether the complaining party had the opportunity to litigate the question of jurisdiction in the original action, and, if he did have such an opportunity, whether there are strong policy reasons for giving him a second opportunity to do so. James & Hazard, op. cit. 695; Restatement (Second), Judgments, supra.” (Internal quotation marks omitted.) Vogel v. Vogel, 178 Conn. 358, 362-63, 422 A.2d 271 (1979); see also Connecticut Pharmaceutical Assn., Inc. v. Milano, 191 Conn. 555, 560, 468 A.2d 1230 (1983); Daly v. Daly, 19 Conn. App. 65, 69-70, 561 A.2d 951 (1989); Morris v. Irwin, 4 Conn. App. 431, 433-34, 494 A.2d 626 (1985). This is an appropriate case for the application of this bar to collateral attack on subject matter jurisdiction. The lack of jurisdiction, if any, was far from obvious, Upjohn had the opportunity to challenge it at the time, and we perceive no strong policy reasons to give Upjohn a second opportunity to do so now.

We recognize, however, as this discussion suggests, that there may be exceptional cases in which a previously unchallenged condition was so far outside what could have been regarded as a valid exercise of zoning power that there could not have been any justified reliance on it, or in which the continued maintenance of a previously unchallenged condition would violate some strong public policy. It may be that in such a case a collateral attack on such a condition should be permitted. We leave that issue to a case that, unlike this case, properly presents it.

Our conclusion that Upjohn may not now challenge the validity of condition seven leaves for our consideration only the scope of the remand on this appeal. Both before the board and in the trial court, Upjohn raised four claims: (1) the enforceability of condition seven, which we have disposed of by this opinion; (2) that the sludge pile was a valid nonconforming use, which Upjohn conceded at oral argument in this court would not survive a conclusion that condition seven was enforceable; (3) Upjohn’s claimed compliance with condition seven; and (4) state and federal preemption, which we have disposed of by our opinion in the companion appeal. See Upjohn Co. v. Planning & Zoning Commission, 224 Conn. 82, 616 A.2d 786 (1992). The only issue remaining for the trial court to decide, therefore, is whether Upjohn had complied with condition seven at the time of the cease and desist order.

The Cross Appeal

In its cross appeal, Upjohn claims that the trial court improperly concluded “in its February 21,1991 memorandum of decision that there was sufficient evidence in the record from which the zoning board of appeals could determine that permanent on-site storage of solid waste does not constitute a permissible accessory use under the town’s zoning regulations.” This claim requires little discussion. It involves, not the ultimate judgment rendered by the trial court, but the first memorandum of decision and judgment that were subsequently withdrawn and opened, respectively. Thus, the cross appeal is moot. See Upjohn Co. v. Zoning Board of Appeals, 224 Conn. 106, 616 A.2d 798 (1992).

On the appeal, the judgment is reversed, and the case is remanded for further proceedings consistent with this opinion. The cross appeal is dismissed.

In this opinion the other justices concurred.

       The defendant, the zoning board of appeals of the town of North Haven, appealed, and the plaintiff, The Upjohn Company, cross appealed, from the judgment of the trial court to the Appellate Court, and we transferred the appeal and cross appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

       For a more detailed description of the origin and subsequent history of the sludge pile, see the companion appeal. Upjohn Co. v. Planning & Zoning Commission, 224 Conn. 82, 616 A.2d 786 (1992).

       The cease and desist order provided in pertinent part as follows: “The purpose of this letter is to inform you that the Upjohn Company is in violation of the conditions attached to the zoning approvals granted by the North Haven Planning and Zoning Commission in February of 1983. The violation stems from your company’s failure to remove all sludge stored on the Upjohn Company site.
      “As a result of your company’s violation, you are hereby ordered to CEASE AND DESIST all outdoor storage of sludge on the Upjohn property. Failure to comply with this order will result in the Town taking further legal action against the Upjohn Company.”

       General Statutes (Rev. to 1981) § 8-3 (g) provides in relevant part: “A site plan may be modified or denied only if it fails to comply with requirements already set forth in the regulations.”

       In February, 1984, Upjohn acknowledged that the town was interested “in the eventual removal of solid wastes accumulated on-site.” In April, 1985, the zoning enforcement officer reminded Upjohn that it had not complied with the requirement to remove the sludge, and Upjohn responded that “there is no change in our understanding regarding the generation and accumulation of solid wastes at our plant.” Finally, prior to the issuance of the cease and desist order, the commission made overtures to Upjohn to propose a satisfactory schedule for compliance with condition seven.

       In this connection, we do not agree that, as the trial court concluded, whether a condition may be collaterally attacked depends on the type of permit to which it was originally attached, or on whether the challenge is viewed as being to the agency’s jurisdiction or to the proper exercise of its jurisdiction. See, e.g., Moscowitz v. Planning & Zoning Commission, 16 Conn. App. 303, 312-16, 547 A.2d 569 (1988). The considerations of reliance, fairness and finality that underlie our decision in this case do not turn on such conceptual differences.

       We recognize that the trial court, in its first memorandum of decision, rejected Upjohn’s compliance claim on its merits. We cannot consider that action of the trial court as final, however, because in its second memorandum of decision it explicitly noted that its determination that condition seven was void constituted the entire ratio decidendi of its decision. Thus, the trial court effectively withdrew the remainder of its first memorandum of decision, including its discussion of Upjohn’s claimed compliance with the condition.

       We note further that this claim suffers from the same impediment as does its first cousin raised in the companion appeal, namely, that Upjohn never raised the factual issue of accessory use before the board in this case and, therefore, is not entitled to prevail on that issue on appeal. See Upjohn Co. v. Planning & Zoning Commission, 224 Conn. 82, 616 A.2d 786 (1992).


text:
    The Upjohn Company v. Zoning Board of Appeals of the Town of North Haven
    (14425)
    Peters, C. J., Callahan, Borden, Berdon and Norcott, Js.
    Argued September 29
    decision released November 24, 1992

      S. Robert Jelley, with whom were William J. Doyle, Brian J. Doyle and, on the brief, Patrick J. Monahan, for the appellant (plaintiff).

      Robert K. Ciulla, with whom was Charles R. Andres, for the appellee (defendant).
   Borden, J.

The plaintiff, The Upjohn Company (Upjohn), appeals from a judgment of the trial court dismissing Upjohn’s zoning appeal from a decision of the defendant, the zoning board of appeals of the town of North Haven (board). Upjohn claims that the trial court improperly concluded that the record before the board supported a finding that Upjohn’s storage of solid sludge waste on its property did not constitute an accessory use under the North Haven zoning regulations. We dismiss this appeal as moot because the judgment from which Upjohn appeals was subsequently opened by the trial court, which thereafter rendered judgment for Upjohn.

The underlying facts are reported in some detail in the companion appeals; see Upjohn Co. v. Planning & Zoning Commission, 224 Conn. 82, 616 A.2d 786 (1992); Upjohn Co. v. Zoning Board of Appeals, 224 Conn. 96, 616 A.2d 793 (1992); and need not be repeated here. Only certain additional facts are necessary to the disposition of this appeal.

In 1982, Upjohn filed three applications with the planning and zoning commission of the town of North Haven (commission) for permission to make certain improvements regarding two lagoons located on its property on Sackett Point Road in North Haven. By that time, Upjohn had accumulated on its property a sizable sludge pile of solid hazardous waste created by Upjohn’s chemical manufacturing business. In early 1983, the commission granted the applications subject, however, to twenty-three conditions. Condition seven required that “a plan be submitted [by Upjohn] with a timetable for the elimination of future sludge production and removal of all existing sludge from the Upjohn site.” Upjohn did not appeal from the imposition of that condition or contest it in any way.

In May, 1986, the North Haven zoning enforcement officer issued an order to Upjohn to cease and desist from storing on its property chemical sludge created by its manufacturing process and to remove all existing sludge by December 31,1987. The stated basis of that order was Upjohn's failure to comply with condition seven. Upjohn appealed the order to the board, which denied Upjohn’s appeal.

Upjohn appealed to the trial court from the board’s action. In its first memorandum of .decision, dated February 21, 1991, the court ruled that: (1) condition seven was enforceable by way of the cease and desist order of the zoning enforcement officer, and the record was sufficient to support the board’s determination that Upjohn had not complied with the condition; (2) the board acted properly in determining that Upjohn’s sludge pile was neither a valid prior nonconforming use nor an accessory use incidental to Upjohn’s permitted use of chemical manufacturing; (3) the board’s conduct of the hearing was proper; and (4) the board’s actions were not preempted by either the state or federal environmental regulatory schemes. Accordingly, the trial court rendered a judgment dismissing Upjohn’s appeal. Thereafter, the Appellate Court granted Upjohn’s petition for certification to appeal.

On May 24, 1991, however, the trial court, sua sponte, opened its judgment of dismissal and, by a corrected memorandum of decision dated May 23, 1991, rendered a new judgment sustaining Upjohn’s appeal. In the corrected memorandum of decision, the trial court held that condition seven was void ab initio because it was beyond the commission’s authority under General Statutes § 8-3 (g). Consequently, the trial court reasoned, the board improperly upheld the cease and desist order because that order constituted an effort to enforce a void condition. The corrected memorandum of decision did not address any of the other issues that had been resolved in the trial court’s first memorandum of decision. In response to a motion for articulation filed by Upjohn, the trial court stated: “By a memorandum of decision dated May 23, 1991, this court corrected the legal analysis it had applied to the [captioned] administrative appeal, and the reasoning set forth in the Corrected Memorandum, of Decision supplies the entire ratio decidendi for [the captioned case].” (Emphasis added.) Thus, the second memorandum of decision and the judgment rendered in accordance therewith completely displaced the first memorandum of decision and judgment.

Despite the fact that the judgment from which Upjohn filed this appeal had been opened and a new judgment favorable to Upjohn had been substituted in its place, Upjohn has maintained this appeal from the first, opened judgment. That judgment, however, is no longer in effect. Under these circumstances, this appeal is moot, because there is no action that we can take that can have any practical effect on the judgment under appeal. See Ostroski v. Ostroski, 135 Conn. 509, 66 A.2d 599 (1949); Clover Farms, Inc. v. Kielwasser, 134 Conn. 622, 59 A.2d 550 (1948); see also O’Bymachow v. O’Bymachow, 10 Conn. App. 76, 78, 521 A.2d 599 (1987).

The appeal is dismissed.

In this opinion the other justices concurred.

       Upjohn appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

       The second judgment is the subject of a companion appeal and cross appeal. See Upjohn Co. v. Zoning Board of Appeals, 224 Conn. 96, 616 A.2d 793 (1992).

       The trial court also heard, at the same time, two other appeals by Upjohn from actions of North Haven zoning authorities: (1) an appeal from a decision of the planning and zoning commission, dated January 17,1989, denying Upjohn’s application for a permit to install certain waste water improvements on its property; and (2) an appeal from a decision of the zoning board of appeals that it lacked jurisdiction to hear Upjohn’s appeal from the January 17,1989 decision discussed immediately above. The trial court sustained the first appeal and, therefore, dismissed the second appeal as moot. Neither of these judgments of the trial court is before us on this appeal or the companion appeals.

       General Statutes (Rev. to 1981) § 8-3 (g) provides in relevant part: “A site plan may be modified or denied only if it fails to comply with requirements already set forth in the regulations.”