text:
    State of Connecticut v. Gregory Walker
    (13034)
    Peters, C. J., Healey, Shea, Glass and Hull, Js.
    Argued December 1, 1987
    decision released February 16, 1988

      James L. Radda, special public defender, for the appellant (defendant).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Robert A. Lacobelle, assistant state’s attorney, for the appellee (state).
   Hull, J.

The defendant, Gregory Walker, appeals from his judgment of conviction, after a jury trial, of the crime of murder in violation of General Statutes § 53a-54a (a). He raises four claims of error on appeal: (1) the prosecutor’s comment on the defendant’s post-arrest silence; (2) the prosecutor’s comments on the defendant’s failure to testify; (3) the admission into evidence of photographs of the victim’s body; and (4) the insufficiency of the evidence to prove the defendant’s guilt beyond a reasonable doubt. We find no error.

The jury could reasonably have found the following facts. On February 7, 1985, at 1:32 a.m., the Bridgeport police found the body of a male in an alley between the multi-service center and the special services police department office in Father Panik Village. The alley is approximately 100 feet long and six to seven feet wide. There were no lights in the alley. A fence surrounds the alley but the police officers at the scene were able to approach the body by walking through a hole in the fence. The alley was surrounded by residential buildings about 150 to 200 feet away, each containing eighteen to twenty-two units. The police saw no one in the alley or exiting it. The victim was identified on February 20, 1985, as Eddie Singletary, a resident of Passaic, New Jersey.

The victim was found in the snow with the hood of his orange and black jacket pulled over his head. A detective found one bullet near the victim’s lower back and three spent Remington .25 cartridges near the head. The chief medical examiner found four bullet holes in the head. The cause of death was multiple gun shot wounds to the brain. Death most likely occurred between ten to twenty minutes and one hour after infliction of the wounds. The shots were probably fired from over two feet away. Detective Leo Krusinski. spoke with the defendant at the detective bureau on March 5, 1985. The defendant was not under arrest. The defendant admitted he knew Singletary. He said that he and Singletary had come to Bridgeport from New Jersey and had arrived at 681 Hallett Street, the place where the defendant’s wife was staying, at 5:30 a.m. on February 6. He and Singletary “hung around” and “got drunk.” At about 4 p.m. that day he gave $20 to Singletary to take the train to Passaic. The defendant also said his sister’s child had been molested by Singletary.

The last time Woodrow Minnick saw the defendant was in the company of Minnick’s brother, Donald. They came to the Hallett Street address sometime after 8 p.m. that evening to watch a University of Pittsburgh basketball game. The Pittsburgh game began at 8 p.m. on February 6. Deborah Embry saw the defendant in the Hallett Street house asleep at 7:30 a.m. on February 6. Singletary also was there. They stayed in the house all day. At about 5:30 p.m. the defendant, Singletary and Janie Minnick, who was the defendant’s wife, left. At 1 a.m. on February 7,1985, Embry saw the defendant come through the front door and go to Janie’s room.

The state’s key witness was Donald Minnick, Janie’s brother. When he was leaving work on February 6, 1985, he saw the defendant in his car with a man named Eddie. Eventually they went to the Hallett Street address to watch the Pittsburgh basketball game. They watched the game, staying until 10 or 11 p.m. The three of them then went to Father Panik Village in a car driven by the defendant. While the three of them were near building No. 17 the defendant and the victim said they were “going to take a leak.” The victim and the defendant then walked over by the fence near building No. 17, behind the office and into a dark alley. They were out of his sight while Minnick stood and waited for their return. He waited for about five minutes and then heard three or four gunshots, at close to midnight. He saw no other person in the area when the defendant came back from the alley. He then saw the defendant walking to the car approximately one or two minutes after hearing the gunshots. The defendant then told Minnick that “he was sorry” that “he had to do what he did, but it had to be done.” Minnick said that at this point the defendant’s mood was normal. The defendant told Minnick that Eddie had molested his niece “or something” although Minnick did not remember why he was told this. The defendant told Krusinski that he had questioned the victim about his niece but the victim denied that he had had anything to do with her.

I

Claimed Error in the Prosecutor’s Comments on the Defendant’s Post-Arrest Silence

No post-arrest statements by the defendant were introduced at the trial nor did the defendant testify. In his opening argument the prosecutor stated: “Think about it—Mr. Singletary comes to Bridgeport, for what reason? And in less than 24 hours after he arrives in Bridgeport, he is a dead man. Does it sound like a bad break on his part? Does it sound like it may have been planned? That this had been thought out? Because if you hit him in Bridgeport, Bridgeport doesn’t know anything about it. You got no information on Eddie Singletary. Nobody is coming out of the woodwork to identify the body and Bridgeport won’t get an identification on the individual and just say, hey, chalk it up—we tried. No, Detective Krusinski worked on this. They finally got verification of who this individual was and confirmed it. They did an investigation in New Jersey. He came back here and now he starts interviewing him. And Deborah Embry comes forward and says yeah, that man was in my house. He came here with Gregory Walker. And Gregory Walker was there the next day. And there was no Eddie Singletary. Now if that were the case, and Mr. Walker had nothing to hide the next day, perhaps he would have been saying, hey, where is my friend Eddie?” (Emphasis added.)

The defendant claims that this comment violated his due process rights under the fourteenth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. Although the defendant did not object to this comment he seeks appellate review under the second “exceptional circumstance” test in State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), where the record adequately supports a claim that a defendant clearly has been deprived of a fundamental constitutional right and a fair trial. The defendant’s claim is that the argument above violated his constitutional rights under Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976). The Doyle court held that “[t]he use for impeachment purposes of [the defendant’s] silence at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment.” Id., 619. This court does not usually review claims of error that were not raised at trial. Practice Book § 4185. We will review the defendant’s claim, however, because it involves his fundamental constitutional right to due process under the fourteenth amendment. State v. Evans, supra, 71.

The rationale of the Doyle rule is that “it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.” Doyle v. Ohio, supra, 618; Wainwright v. Greenfield, 474 U.S. 284, 291, 106 S. Ct. 634, 88 L. Ed. 2d 623 (1986); State v. Shashaty, 205 Conn. 39, 48, 529 A.2d 1308 (1987). “We do not see any reason why prosecutorial comment during closing argument is not analogous to cross-examination for the purpose of the application of this rule.” State v. Casey, 201 Conn. 174, 185, 513 A.2d 1183 (1986).

The defendant claims that, unlike State v. Casey, where the defendant made post-arrest statements and testified at the trial, the defendant in this case did neither. Therefore, he claims the suggestion that he had something “to hide” the next day and the challenge to the defendant to explain why he did not inquire about the victim’s whereabouts, constitute comment on the defendant's failure, after his arrest, to explain his silence on February 7 as to the victim’s whereabouts.

The defendant’s argument is wide of the mark. Doyle simply does not apply in this situation. The “where is my friend Eddie?” remarks were plainly related to the defendant’s conduct on February 7, 1985, the day after Singletary had disappeared and one month before the defendant was arrested and received the customary Miranda warnings.

The defendant voluntarily went to the detective bureau on March 5, 1985. He received no Miranda warnings and was not under arrest. Doyle holds that it is fundamentally unfair to promise an arrested person that his silence will not be used against him and thereafter to breach that promise. Doyle v. Ohio, supra, 615. Doyle does not apply to silence before the defendant is taken into custody and given Miranda warnings. “In this case, no governmental action induced [the defendant] to remain silent before arrest. The failure to speak occurred before the [defendant] was taken into custody and given Miranda warnings. Consequently, the fundamental unfairness present in Doyle is not present in this case. We hold that impeachment by use of prearrest silence does not violate the Fourteenth Amendment.” Jenkins v. Anderson, 447 U.S. 231, 240, 100 S. Ct. 2124, 65 L. Ed. 2d 86 (1980); accord State v. Shashaty, supra, 49. “[P]re-arrest silence under circumstances where one would naturally be expected to speak may be used either as an admission or for impeachment purposes. McCormick, Evidence (3d Ed.) §§ 160, 270.” State v. Leecan 198 Conn. 517, 522, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986). We conclude that the prosecutor’s comment in this case violated neither state nor federal due process rights of the defendant. This claim of error is without merit.

II

Claimed Error in the Prosecutor’s Comments on the Defendant’s Failure to Testify

The defendant claims that three comments of the prosecutor in closing argument constitute, either singly or collectively, comment on the defendant’s failure to testify at trial.

Defense counsel did not object or take exception to two comments or ask for a curative instruction but objected to a third comment in the jury’s presence. The prosecutor justified his comment as being directed to something other than the defendant’s failure to testify. Defense counsel did not request a formal ruling on his objection, nor did he take exception or request a curative instruction. In view of the landmark case of State v. Evans, supra, 71, where this precise issue was decided in favor of appellate review under similar circumstances, we will make such a review in this case. State v. Magnotti, 198 Conn. 209, 215, 502 A.2d 404 (1985).

The parameters of our inquiry are well established. “In its closing argument the state may properly call to the attention of the jury any portion of the evidence that stands uncontradicted. Such a comment becomes objectionable only when it focuses the attention of the jury on the failure of the defendant to testify and thus violates the holding of the United States Supreme Court in Griffin v. California, [380 U.S. 609, 615, 85 S. Ct. 1229, 14 L. Ed. 2d 106, reh. denied, 381 U.S. 957, 85 S. Ct. 1797, 14 L. Ed. 2d 730 (1965)], that ‘the Fifth Amendment, in its direct application to the Federal Government and in its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.’ A test for evaluating a prosecutor’s argument that has been adopted by several courts and approved by the Court of Appeals of this circuit in United States ex rel. Leak v. Follette, 418 F.2d 1266, 1269 (2d Cir.), cert. denied sub nom. Leak v. Follette, 397 U.S. 1050, 90 S. Ct. 1388, 25 L. Ed. 2d 665 [1970], seems adequate and proper: ‘Was the language used manifestly intended to be, or was it of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify?’ As that court noted in the same case: ‘It has been held that remarks concerning lack of contradiction are forbidden only in the exceedingly rare case where the defendant alone could possibly contradict the government’s testimony.’ See also United States v. Lipton, 467 F.2d 1161, 1168-69 (2d Cir. [1972]); Ruiz v. United States, 365 F.2d 103, 105 (10th Cir. [1966]).” State v. Evans, supra, 71-72; State v. Magnotti, supra, 216; State v. DeMartino, 7 Conn. App. 292, 294-95, 508 A.2d 809. (1986).

This rule is embodied in General Statutes § 54-84 (a) which reads in part: “Any person on trial for crime . . . may testify or refuse to testify upon such trial. The neglect or refusal of an accused party to testify shall not be commented upon by the court or prosecuting official . . . .”

COMMENT A—“WHERE IS MY FRIEND EDDIE?”

This comment has been described in more detail in part I above. The particular language that the defendant claims is objectionable is: “Now, if that were the case, and Mr. Walker had nothing to hide the next day, perhaps he would have been saying, hey, where is my friend Eddie?”

The defendant cites State v. DeMartino, supra, as authority for his claim that the quoted remarks constitute an indirect prosecutorial comment on his failure to testify. In DeMartino, the court held that the defendant’s privilege against self-incrimination and his right to a fair trial were violated by the prosecutor’s repeated comments on the failure of the defendant or his attorney to “tell” or “explain” certain events. Id., 293-94.

Even though the egregious prosecutorial misconduct described in DeMartino warranted a new trial, the present case is sharply different. A single comment is involved. We have concluded that it refers to the defendant’s conduct on the day after the crime when he must have been aware of Singletary’s disappearance. This comment does not by any stretch of the imagination amount to an unconstitutional indirect comment on the defendant’s failure to testify.

COMMENT B—“DID YOU HEAR ANYBODY GET UP AND SAY IT WAS HIM?”

In his closing argument defense counsel had stressed that Donald Minnick had committed the murder. In reply, the prosecutor stated the following in his final closing argument: “See the only defense he has in this case is to make you believe that the person, that is a witness against him and says yeah, I was there and I was the only one there, except for Gregory Walker who walked in the area of the alleyway, through this fence with Eddie Singletary whom he brought from New Jersey, when he comes out by himself, I am the only one there with him. It’s easy to say well, good then nobody—but you two are the only ones that know about this and you are giving the statement and telling the police what happened well the easiest thing to do or the only defense he has is to say well maybe it was him, possibly. Hey, it might be him. Did you hear anybody get up and say it was him? It’s conjecture and speculation and you can’t do that in a criminal case.’’(Emphasis added.)

The defendant admits that Donald Minnick’s testimony was uncontradicted and that the state may properly call such a fact to the jury’s attention. He claims, however, that the comment focused the jury’s attention on his failure to testify. He claims that this is one of those “ ‘exceedingly rare case[s] where the defendant alone could possibly contradict the government’s testimony.’ ” State v. Evans, supra, 72.

In his argument to the jury defense counsel had stressed the claim that Donald Minnick did the shooting. In the course of commenting on Donald Minnick’s testimony, defense counsel stated: “That is the alleyway, and buildings on the south, some at the far end of this picture you looked at, were probably 700 feet away but he acknowledged there were buildings much closer that were not in the picture. So, there were buildings at least on the north side, 100 feet away. Yet nobody sees anything. There are shots fired, 12:00 or 12:30 a.m. Nobody sees a thing. And, according to Donald’s testimony ... he and Gregory stayed at the scene after Gregory came out for a minute or two. And nobody is there. Nobody sees them. Nobody has anything to report to the police. Yet we have buildings full of people. And nobody sees the—a thing. He says that Gregory walked out—Donald Minnick says that Gregory walked out of the alleyway. Well, just speaking for human nature in general if Gregory Walker did this crime he would not have been walking out of that alleyway, to think it is clear that he would have been running fast.”

The prosecutor attempted in final argument to negate the claim that Donald Minnick was the responsible party. He pointed out the lack of motive on Donald Minnick’s part, that there was no testimony placing Donald Minnick as a witness at the murder scene and that the defense was making Donald Minnick the main candidate because there were no witnesses. He then said if “[tjhere were that many shots, why didn’t anybody come out and see these individuals here? Did you hear any people from Father Panik Village come in here and testify they heard anything or saw anything? No, you didn’t.” It was at this point the prosecutor made the remarks quoted above and asked, “Did you hear anybody get up and say it was him?”

In this context the prosecutor was responding to the defense allegations and claiming that if Donald Minnick had been the murderer someone from the particular area of Father Panik Village should have been available to testify that he was the killer. In the framework of the defense arguments and the prosecution’s responsive comment on the lack of witnesses from Father Panik Village testifying to Donald Minnick’s involvement in the murder, we conclude that the argument was not of such a character that the jury would naturally and necessarily take it to be a comment on the defendant’s failure to testify.

COMMENT C—“YOU NEVER VIEWED THE DEMEANOR OF THE DEFENDANT.”

During his argument defense counsel had asked the jury to consider the defendant’s demeanor as testified to by everybody who had seen him on February 6 and February 7, 1985, as follows: “There was never any indication in his demeanor that he was upset, that he was annoyed when he was with Eddie, there was no problem, nothing that he indicated that there was a problem between the two. Supposedly after he fired these shots Donald Minnick testified that there was no problem. He walks out cool as a cucumber and that’s the end of that; no problem.” Counsel further stated that “much in Donald Minnick’s demeanor might indicate that he was either involved in it or knew something about it.”

In his final argument the prosecutor made the following rebuttal argument. “Demeanor of the witnesses. Demeanor of witnesses is how they were viewed by you when they testified, what they had to say and the manner in which they said it. You never viewed the demeanor of the defendant. ” (Emphasis added.) Defense counsel objected that this remark was both “far afield” and an improper comment on the defendant’s demeanor at trial, defense counsel’s earlier comment having been limited to events near or at the date of the crime. The prosecutor then explained his comment as follows:

“Mr. Lacobelle: If your Honor please, he brought up demeanor of the witnesses. In the same breath he mentioned demeanor of people on the stand. It would allow me to continue—I was going to point out his demeanor that he suggests them to consider, comes from something other than what was shown on trial. And I think that is perfectly acceptable since he brought it up.
“The Court: Well you may not comment on his lack of testimony in the trial. That is clear.
“Mr. Lacobelle: I don’t intend to.
“The Court: As long as you do not, or make sure you do not.
“Mr. Lacobelle: Any demeanor that you are to consider of the witnesses, the demeanor here, again, to consider somebody else’s demeanor at another time, place, that is based on what you hear from other witnesses. This individual obviously comes out of the alley and says gee, I am sorry, it had to be done. Again, slight remorse. The fact that Mr. Minnick says he doesn’t come out, raving mad or waving a gun is to mean that he didn’t do it. I don’t believe that, that this is a reasonable and logical conclusion. I think the only thing you can see is that this was a well planned act that was carried out as an execution by Mr. Walker and for a specific purpose.”

Defense counsel did not request a formal ruling on his objection, nor did he take exception. Counsel did not request a curative instruction nor was one given. The defendant, however, claims that the italicized words constituted an unconstitutional indirect comment on his failure to testify. He points out that the words used were not a comment on the strength of the state’s case; State v. Kluttz, 9 Conn. App. 686, 705, 521 A.2d 178 (1987); or on the weakness of the defendant’s case or overall quality of the defendant’s evidence. State v. Magnotti, supra, 220. Rather, he claims the remarks were “so far beyond the bounds of legitimate argument as to deny the defendant a fair trial.” Id. We agree that this comment was error, but, on the basis of this record, we conclude that it was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied, 386 U.S. 987, 87 S. Ct. 1283, 18 L. Ed. 2d 241 (1967).

When viewed in connection with the preceding comment on demeanor of witnesses the offending words can only be taken as an indirect comment on the defendant’s failure to testify and are therefore, standing alone, improper. The state admits as much.

The court, however, charged the jury on the demeanor of witnesses, and the right of the defendant to refrain from testifying. Absent an indication to the contrary, the jury is presumed to follow the instructions. State v. Williams, 204 Conn. 523, 534, 529 A.2d 653 (1987). After the objection to the remarks the prosecutor very clearly limited his comments to “somebody else’s demeanor at another time, place, that is based on what you hear from other witnesses.” The remarks were not highlighted in any way by defense counsel’s objection or by any comment of the judge. The prosecutor’s explanation of his remarks on “demeanor” went directly to the defendant’s behavior on the given date. We conclude that the remarks were satisfactorily clarified by the prosecutor and, as thus delimited, not of such a character that the jury would naturally and necessarily take it to be a comment on the failure of the defendant to testify. The record as a whole supports our conclusion beyond a reasonable doubt that the prosecutor’s comment did not contribute to the verdict and, therefore, constituted harmless error. Chapman v. California, supra, 24-26.

III

Claimed Error in Admitting into Evidence Photographs Depicting The Body of The Victim

At trial the court allowed into evidence exhibit L, a photograph of the victim’s head prior to the autopsy for purposes of identification of the body. The defendant objected to any photograph for identification of the victim since the victim’s mother was present in court to testify that the body she saw at the office of the chief medical examiner was that of her son. The trial court recognized that exhibit L was gruesome but admitted it for identification and found that its probative value outweighed its prejudicial effect. The state then offered into evidence exhibits M and N, one showing the side and one showing the top of the victim’s head before the autopsy. The court noted that the photographs of the wounds might be relevant to proof of the defendant’s intent. The defendant objected on the ground that the medical examiner could adequately explain the location of the wounds in the victim’s head. The court allowed exhibits M and N into evidence on the ground once again that their probative value outweighed any prejudicial effect.

“The principles governing the admission of potentially inflammatory photographic evidence are clear. ‘As this court has stated on a number of occasions, we adhere to the general rule that photographs which “have a reasonable tendency to prove or disprove a material fact in issue or shed some light upon some material inquiry” are not rendered inadmissible simply because they may be characterized as “gruesome.” . . . When, however, an initial determination is made by the trial court that such photographs may have the tendency to prejudice or inflame the jury, the admissibility of such evidence is dependent upon the trial court’s determination as to whether their value as evidence outweighs their possible prejudicial effect. . . . Since the trial court exercises its broad discretion in such circumstances, its determination will not be disturbed on appeal unless a clear abuse of that discretion is shown.’ (Citations omitted.) State v. Piskorski, 177 Conn. 677, 700-701, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979); see State v. DeJesus, 194 Conn. 376, 381-82, 481 A.2d 1277 (1984); State v. Haskins, 188 Conn. 432, 452, 450 A.2d 828 (1982); State v. Smith, 174 Conn. 118, 122-23, 384 A.2d 347 (1977).” State v. Falcon, 196 Conn 557, 565-66, 494 A.2d 1190 (1985).

“ ‘ “[T]he prosecution, with its burden of establishing guilt beyond a reasonable doubt, is not to be denied the right to prove every essential element of the crime by the most convincing evidence it is able to produce.” ’ ” State v. Smith, 185 Conn. 63, 88, 441 A.2d 84 (1981), quoting State v. Piskorski, supra, 701-702. The trial court did not abuse its discretion in admitting the photographs.

IV

Claimed Insufficiency of The Evidence

At the close of the evidence the defendant moved for judgment of acquittal on the ground of insufficiency of the evidence. The court denied the motion and the defendant excepted.

It is axiomatic that in reviewing a claim of insufficiency of the evidence, this court construes the evidence in the light most favorable to sustaining the jury’s verdict and will affirm that verdict if it is reasonably supported by the evidence and the logical inferences drawn therefrom. State v. Cobbs, 203 Conn. 4, 7, 522 A.2d 1229 (1987); State v. Cates, 202 Conn. 615, 627, 522 A.2d 788 (1987). There is no legal distinction between direct and circumstantial evidence as far as probative force is concerned. State v. Crump, 201 Conn. 489, 495, 518 A.2d 378 (1986).

The defendant bases his argument principally on his claims that: (1) Donald Minnick did not witness the shooting or see the gun; (2) there were no problems between the defendant and the victim; and (3) the defendant appeared normal when walking back from the fence area. The state presented evidence that the defendant and the victim entered a dark alleyway together, that the victim died of multiple gunshot wounds to the brain, that there was no other person in the area when the defendant came back from the alley, that the defendant told Donald Minnick that “he was sorry that he had to do what he did,” and that the defendant said that the victim had molested his niece. There was more than sufficient evidence for the jury to conclude beyond a reasonable doubt that the defendant was guilty of murder.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 53a-54a (a) 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 . . . ."

       The defendant nominally makes his due process claim under both the state and federal constitutions. “ ‘The due process clauses of the United States constitution, § 1, of the fourteenth amendment, and of the Connecticut constitution, article first, § 8, can be treated together because they “generally have the same meaning and impose similar constitutional limitations.” Keogh v. Bridgeport, 187 Conn. 53, 60, 444 A.2d 225 (1982); McKinney v. Coventry, 176 Conn. 613, 616, 410 A.2d 453 (1979).’ Gunther v. Dubno, 195 Conn. 284, 297 n.13, 487 A.2d 1080 (1985). The defendant proffers no argument for enhanced state constitutional protection and, on the facts of this case, we see no reason independently to perform such an analysis.” See State v. Thompson, 197 Conn. 67, 76 n.6, 495 A.2d 1054 (1985).

        Miranda v. Arizona, 384 U.S. 436, 467-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Commissioner of Health Services v. Youth Challenge of Greater Hartford, Inc., et al.
    (13080)
    Peters, C. J., Healey, Shea, Callahan and Hull, Js.
    Argued January 6
    decision released February 23, 1988

      James W. Sherman, for the appellants (defendants).

      Maite Barainca, assistant attorney general, with whom was Richard J. Lynch, assistant attorney general, and, on the brief, Joseph I. Lieberman, attorney general, for the appellee (plaintiff).
   Per Curiam.

The defendants appeal from the trial court’s judgment permanently enjoining them from operating two unlicensed health care facilities. The deficiencies in the defendants’ brief and oral argument are so pervasive and fundamental that they make a mockery of responsible appellate advocacy. The defendants’ brief does not challenge the court’s uncontroverted findings, but the defendants claimed in oral argument that such an attack is “inherent” in their myriad constitutional claims. These constitutional claims are totally incoherent and unintelligible. We conclude that meaningful appellate review is precluded in this case, and, therefore, find no error.

On August 6, 1986, the plaintiff, the commissioner of health services, pursuant to General Statutes §§ 19a-491 (a) and 19a-503, filed a petition for enforcement seeking to enjoin the defendants from operating two unlicensed health care facilities. The defendants filed an answer and twenty special defenses alleging a cornucopia of state and federal constitutional claims. On December 9, 1986, the trial court granted the plaintiffs application for a permanent injunction. The trial court found: that the named defendant, Youth Challenge of Greater Hartford, Inc., manages and operates the Youth Challenge Ranch (Ranch) in Moosup, and the Youth Challenge Girls’ Home (Girls’ Home) in Hartford; that the defendant Louie Collazo is the director of the Ranch; that the defendant Christian F. Poulsen, Jr., is the director of the Girls’ Home; that the Ranch is a drug and alcohol treatment facility operating without a license; that the Girls’ Home is a drug treatment facility operating without a license; and that these facilities are required to be licensed pursuant to General Statutes § 19a-491 (a).

The court also found that the defendants did not prove their special defenses, which the court summarized as a claim of “a violation of the free exercise of religion clause.” The defendants presented no evidence at the trial and did not cross-examine the plaintiff’s witnesses.

The defendants have challenged none of the facts found by the trial court. In March, 1986, inspectors from the department of health services made unannounced visits to the Girls’ Home and the Ranch to determine whether they were operating unlicensed facilities. Their investigation disclosed the named defendant corporation’s tax returns which listed, under “Program,” its licensed facility at its headquarters at 15-17 May Street, Hartford, the Ranch and the Girls’ Home. The named defendant corporation’s tax returns described the Girls’ Home as a “drug rehabilitation program.” The brochure given to the plaintiff described the program as a drug program with the purpose of “instilling in the drug dependent person, the incentive to forsake his drug habit for the pursuit of a new life.” The Girls’ Home provides a supervised and supportive living situation for drug abusive or dependent persons. All nine of the residents of the home at the time of the inspection had current drug abuse problems. The services provided by the Girls’ Home include detoxification from drugs, storage of medication, a supervised and supportive living situation for drug abusive or drug dependent persons, treatment and rehabilitative programs, assessment of the residents’ physical and psychological condition and referral for medical care, psychiatric evaluation and continuing treatment.

The named defendant corporation’s tax returns under “Program” also listed the Ranch and described it as a “drug rehabilitative program.” The brochure for the Ranch describes it as a “Resident Drug Program” and as a “Residential Rehabilitative program for Troubled Youth particularly those addicted to drugs (alcohol included).” The Ranch is the “Phase II level of treatment” following the induction phase at the May Street facility. Twelve out of thirteen residents had drug histories and nine out of thirteen had alcohol dependency problems. Services provided by the Ranch include: planned treatment and rehabilitation programs inclusive of individual, group, social and domestic counsel-ling; training and vocational rehabilitation; referral for continuing treatment and/or medical care; dietary services; central storage of medication and administration of medication; assessment of the individual’s physical and psychological condition to determine appropriateness for admission; and ongoing assessments to determine a program of the individual toward maintaining alcohol and/or drug free status and learning to return to the community without the use of alcohol or drugs.

In the defendants’ appeal from the judgment based on these findings by the trial court, they have entirely failed to comply with our rules of practice. The defendants’ “Statement of Facts” is in flagrant violation of our rules of practice. Practice Book § 4065 provides that “the appellant’s brief shall contain the following .... (c) A statement of the nature of the proceedings and of the facts of the case. The statement of facts shall be in narrative form, and shall be supported by appropriate references to the page or pages of the record or transcript upon which the party relies. The statement of facts should not be detailed or voluminous but must be confined strictly to facts bearing upon the questions raised. An appellant may not rely upon any fact unless it is set forth in his statement of facts or is incorporated into his brief in accordance with subsection (d) hereof.

“(d) The argument, divided under appropriate headings into as many parts as there are points to be presented, with appropriate references to the statement of facts or to the page or pages of the record or transcript.”

The defendants claim in the statement of facts that “the question raised in this case of whether government health care orthodoxy preempts the Grace of God is not a new question.” There follows a lengthy quotation from the Bible. There is no statement of facts in narrative form nor is there any reference to the record or transcript upon which the defendants rely. The defendants do not even accept the statement of facts made by the plaintiff based upon the trial court’s unchallenged findings.

“We are unable to consider the [defendants’] appeal on its merits because of the failure of the [defendants] to provide us with an adequate appellate record. We do not decide issues of law in a vacuum. In order to review an alleged error of law that has evidentiary implications, we must have before us the evidence that is the factual predicate for the legal issue that the appellants] [ask] us to consider. It is the responsibility of the appellants] to provide us with an appellate record that adequately supports [their] claim of error. Practice Book § 3060D [now § 4061]; State v. Conrod, 198 Conn. 592, 597, 504 A.2d 494 (1986); In re Final Grand Jury Report Concerning the Torrington Police Department, 197 Conn. 698, 715, 501 A.2d 377 (1985); State v. One 1977 Buick Automobile, 196 Conn. 471, 480, 493 A.2d 874 (1985); Barra v. Ridgefield Card & Gift Gallery, Ltd., 194 Conn. 400, 407-408, 480 A.2d 552 (1984).” Taylor v. American Thread Co., 200 Conn. 108, 110-11, 509 A.2d 512 (1986).

The defendant’s constitutional arguments, made in a factual wasteland, do not state any legal argument applicable to this case. The brief merely lists summaries of many cases with no attempt to relate them to the constitutional issues claimed on appeal. The defendants’ overriding claim apparently is that the state’s regulation of their facilities interferes with their free exercise of religion. They cite no facts in the record to establish the religious nature of the two facilities involved in this casé. Each of the defendants’ ten claims of constitutional error refers to the “defendants and their Church Mission congregations.” There is not a shred of evidence in this record as to the existence or operation of any such church mission congregations. The mere statement by counsel of such a situation at the two unlicensed facilities obviously does not establish any facts.

As briefed, none of the defendants’ claims of error raises an issue amenable to appellate review. In re Juvenile Appeal (85-3), 3 Conn. App. 194, 197, 485 A.2d 1369, cert. denied, 196 Conn. 801, 491 A.2d 1105 (1985).

There is no error.

Healey, J., concurred in the result.

       The defendants’ statement of issues follows:
      “I. Have the defendants and their Church Mission congregations been denied the protection of Article 1, Section 10, against the retroactive punitive effect of a statute in violation of the Constitution of the United States?
      “II. Have the defendants and their Church Mission congregations been denied the protection of Article 1, Section 10, against Bills of Attainder in violation of the Constitution of the United States?
      “HI. Have the defendants and their Church Mission congregations been denied their fundamental rights to liberty, property, privacy and personal autonomy without Due Process of law in violation of the Fourteenth Amendment [to] the Constitution of the United States?
      “IV. Have the defendants and their Church Mission congregations been denied their fundamental rights in violation of the equal protection clause of the Fourteenth Amendment [to] the Constitution of the United States?
      “V. Have the defendants and their Church Mission congregations been denied their Freedom of Speech, Press and Assembly in violation of the First Amendment [to] the Constitution of the United States?
      “VI. Have the defendants and their Church Mission congregations been denied their fundamental rights of Due Process of Law and Freedom of Speech through an overbroad statute in violation of the Fourteenth Amendment and the First Amendment [to] the Constitution of the United States?
      “VII. Have the defendants and their Church Mission congregations been denied their fundamental right of Due Process of Law through a vague statute in violation of the Fourteenth Amendment to the Constitution of the United States?
      “VIII. Have the defendants and their Church Mission congregations been denied their Right of Freedom of Association in violation of the First Amendment [to] the Constitution of the United States?
      “IX. Have the defendants and their Church Mission congregations been denied their right of protection against the establishment of religion in violation of the First Amendment, Establishment Clause, [to] the Constitution of the United States?
      “X. Have the defendants and their Church Mission congregations been denied the Right of Freedom of Religion in violation of the First Amendment, Freedom of Religion Clause, [to] the Constitution of the United States?”

       General Statutes § 19a-491 provides in relevant part: “(Formerly Sec. 19-577). LICENSE AND CERTIFICATE REQUIRED. APPLICATION, (a) No person acting individually or jointly with any other person shall establish, conduct, operate or maintain an institution in this state without a license as required by sections 19a-490 to 19a-503, inclusive. Application for such license shall be made to the department of health services upon forms provided by it and shall contain such information as said department requires, which may include affirmative evidence of ability to comply with reasonable standards and regulations prescribed under the provision of said sections. . . .”
      An “institution” pursuant to General Statutes § 19a-490 (a) includes an “alcohol or drug treatment facility.” Subsection (h) defines an “alcohol or drug treatment facility” as “any facility for the care or treatment of persons suffering from alcoholism or other drug addition.” The term “facility” means the physical site where the program functions take place. Regs., Conn. State Agencies § 17-227-61 (R).

       “[General Statutes] Sec. 19a-503. (Formerly Sec. 19-586). ACTION TO prevent conduct of unlicensed institution. Notwithstanding the existence or pursuit of any other remedy, the department of health services may, in the manner provided by law and upon the advice of the attorney general, conduct an investigation and maintain an action in the name of the state for injunction or other process against any person or governmental unit to restrain or prevent the establishment, conduct, management or operation of an institution, without a license under sections 19a-490 to 19a-503, inclusive.”

       The defendants, during oral argument and in a posthearing motion to file a supplemental brief, attempted to raise the issue that since both the Ranch and the Girls’ Home are not “freestanding” facilities “separately incorporated and independently operating with its own management” in accordance with § 17-227-30B (13) of the Regulations of Connecticut State Agencies they are not required to be licensed under § 17-227-31 of the regulations. Since the defendants did not raise this issue in the trial court or in their brief to this court we do not consider it. Practice Book § 4185.


author: Peters, C. J.

text:
    State of Connecticut v. Benton Kelley
    (12941)
    Peters, C. J., Healey, Callahan, Glass and Hull, Js.
    Argued December 2, 1987
    decision released February 23, 1988

      Kent Drager, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      Michael E. O’Hare, assistant state’s attorney, with whom were Francis Carino, chief court advocate, and, on the brief, Angelo Pizzola, legal intern, for the appellee (state).
   Peters, C. J.

The dispositive issue on appeal is whether the transfer of a child pursuant to General Statutes (Rev. to 1983) § 46b-127, as amended by Public Acts 1983, No. 83-402, § 2, from the docket of Juvenile Matters to the regular criminal docket of the Superior Court implicates the court’s subject matter jurisdiction. After his transfer from the docket of Juvenile Matters to the regular criminal docket, the defendant, Benton Kelley, pleaded nolo contendere to an information charging him with murder in violation of General Statutes § 53a-54a and was sentenced to a term of twenty-five years imprisonment. The defendant appeals, challenging the propriety of the proceedings leading to his transfer to the regular criminal docket. We conclude that the defendant’s claims of error are not properly before us. Because his plea of nolo contendere was conditioned on his ability to appeal his transfer, the trial court erred in accepting the plea.

The state recited the following factual basis for the defendant’s plea of nolo contendere at the time it was accepted by the trial court: On January 30, 1984, the defendant had an altercation with the victim in a bar on North Street in New Britain. The defendant left the bar and, accompanied by another individual, returned a short while later with a shotgun. Another argument arose between the victim and the defendant, which culminated in the defendant’s shooting the victim in the chest. The victim subsequently died from the shotgun wound.

Although the defendant was only fourteen years old at the time he allegedly committed this offense, the state sought to have him tried for murder. After his arrest, the defendant was referred to the Superior Court for Juvenile Matters. The state filed a petition of delinquency pursuant to General Statutes § 46b-128, alleging that the defendant had committed murder and then moved to have the defendant transferred to the regular criminal docket pursuant to General Statutes § 46b-127. The defendant objected to the transfer on the ground that the transfer provisions were unconstitutional. The trial court, Goldstein, J., overruled the objection and, after holding the hearing required under § 46b-127, found that there was probable cause to believe the defendant had committed murder and ordered him transferred to the regular criminal docket.

On August 31,1984, in the proceedings on the regular criminal docket, the trial court, E. O’Connell, J., held the probable cause hearing mandated by General Statutes § 54-46a, concluding that there was probable cause to believe that the defendant had committed the offense charged. The defendant thereupon entered a plea of not guilty. On October 1, 1985, the defendant elected to withdraw his prior plea and entered a plea of nolo contendere to the murder charge. At no time subsequent to his transfer to the trial court did the defendant ever raise the validity of his transfer through a motion to dismiss.

On appeal the defendant claims that the trial court erred in: (1) concluding that § 46b-127 was constitutional; (2) failing to provide the defendant with a full evidentiary hearing as required by § 46b-127; (3) admitting the defendant’s written statement and refusing to allow the results of a polygraph test and an out-of-court statement by the defendant; and (4) finding probable cause to believe the defendant had committed murder. We conclude that the defendant’s claims do not implicate the subject matter jurisdiction of the Superior Court and that the defendant failed properly to reserve them for review on appeal; accordingly, we do not reach their merits.

I

It is well established that “an unconditional plea of guilty or nolo contendere, intelligently and voluntarily made, operates as a waiver of all nonjurisdictional defects and bars the later assertion of constitutional challenges to pretrial proceedings. . . . Therefore, only those issues fully disclosed in the record which relate either to the exercise of jurisdiction by the court or to the voluntary and intelligent nature of the plea are ordinarily appealable . . . .” (Emphasis and citations omitted.) State v. Madera, 198 Conn. 92, 97-98, 503 A.2d 136 (1985). The defendant argues that his claims involving his transfer from the docket for Juvenile Matters to the regular criminal docket are reviewable on appeal because they implicate the Superior Court’s subject matter jurisdiction. We do not agree.

In 1978, the General Assembly enacted General Statutes § 51-164s, which merged the Juvenile Court and the Superior Court in order to maximize the efficiency of scarce judicial resources. Under § 51-164s, “[t]he superior court shall be the sole court of original jurisdiction for all causes of action, except such actions over which the courts of probate have original jurisdiction, as provided by statute. All jurisdiction heretofore conferred upon and exercised by the court of common pleas and the juvenile court prior to July 1, 1978 shall be transferred to the superior court on July 1, 1978.” By this enactment, the legislature vested in the Superior Court the jurisdiction that had until then resided in the Juvenile Court. All juvenile matters now come under the administrative umbrella of the family division of the Superior Court. Practice Book § 3. The chief court administrator is empowered, by General Statutes § 51-5a, to assign any judge of the Superior Court at any time to any division of the Superior Court, even though the legislature has expressed its strong preference that judges assigned to juvenile matters have a special understanding “of all factors affecting the best interests of children” and should, “[i]f practicable . . . be assigned to hear juvenile matters for not less than eighteen months.” General Statutes § 51-165 (d).

Despite merger, the legislature has preserved a separate system for the disposition of cases involving juveniles accused of wrongdoing. Under General Statutes § 46b-122, “[a]ll matters pending in the juvenile court on July 1, 1978, and all matters brought on or after July 1, 1978, which matters are juvenile matters, as defined in section 46b-121, shall continue to be kept separate and apart from all other business of the superior court as far as is practicable, except matters tranferred under the provisions of sections 46b-126 and 46b-127, which matters shall be transferred to the regular criminal docket . . . .’’To implement this mandate, General Statutes § 46b-133 (b) requires that “[w]henever a child is brought before a judge of the superior court, such judge shall immmediately have the case proceeded upon as a juvenile matter.” General Statutes § 46b-145 prohibits the criminal prosecution of children except as provided in §§ 46b-126 and 46b-127.

It is clear that these statutes require the maintenance of a separate juvenile docket within the family division of the Superior Court. The question before us is whether provision for a separate juvenile docket reflects a legislative judgment that the juvenile docket is vested with subject matter jurisdiction over juvenile cases that is separate and distinct from the subject matter jurisdiction otherwise vested in the Superior Court. Notwithstanding the defendant’s claim to the contrary, we conclude that no such distinction has been created in the subject matter jurisdiction of the unified Superior Court. The only statutory pronouncement that directly addresses jurisdiction is § 51-164s, and that section expressly confers the former jurisdiction of the juvenile court on “the superior court.” The statute describing the administrative status of matters formerly pending in the Juvenile Court provides, consistently with § 51-164s, that such juvenile matters “shall continue to be kept separate and apart from all other business of the superior court as far as is practicable . . . . ” (Emphasis added.) General Statutes § 46b-122. Read conjointly, these statutes persuade us that questions relating to the propriety of the transfer of a juvenile from the docket for Juvenile Matters to the regular criminal docket do not implicate the Superior Court’s subject matter jurisdiction.

Rather than implicating subject matter jurisdiction, issues relating to transfers between the juvenile and the regular criminal docket involve considerations that are analogous to those of the law of venue. It is a well established rule that, outside the area of administrative appeals, venue is not a jurisdictional but a procedural question; consequently, venue, unlike subject matter jurisdiction, can be waived by the parties. See State v. Orsini, 187 Conn. 264, 269, 445 A.2d 887, cert. denied, 459 U.S. 861, 103 S. Ct. 136, 74 L. Ed. 2d 116 (1982); Fine v. Wencke, 117 Conn. 683, 684-85, 169 A. 58 (1933); cf. Bank of Babylon v. Quirk, 192 Conn. 447, 449, 472 A.2d 21 (1984); Reed v. Reincke, 155 Conn. 591, 598, 236 A.2d 909 (1967). In the instant appeal, the defendant challenges the validity of his transfer under a statute that is, by its nature, procedural. He therefore cannot rely on principles of subject matter jurisdiction as authority for us to reach the merits of these claims.

II

Even if the court did not lack subject matter jurisdiction, the defendant maintains nonetheless that his nolo contendere plea did not waive his claims relating to the validity of his transfer to the regular criminal docket because his plea expressly reserved his right to appeal these issues. Having expressly conditioned the plea on a right of appellate review, the defendant asserts that he has reserved his appellate rights in one of two ways. Principally, he argues that an expressly conditional plea of nolo contendere automatically confers access to appellate review. Alternatively, he maintains that, even if the fact that the plea was conditional does not of itself warrant review by this court, this court should exercise its supervisory authority over the administration of justice to reach his claims. While we agree that the defendant intended his plea to be conditional on his right to appeal, we conclude nonetheless that he did not properly reserve his claims for review.

Before we can address these alternate positions, we must examine their predicate: Does the record disclose that the defendant’s plea of nolo contendere was in fact conditional? Despite the state’s argument to the contrary, we conclude that the defendant made his plea of nolo contendere conditional on his right to appeal the validity of his transfer and that the trial court, without objection by the state, accepted it as such. During the plea canvass the following colloquy occurred between defense counsel and the trial court:

“[Defense counsel] . . . [T]he reason for the plea of nolo contendere is that there are a number of cases which involve similar circumstances to [the defendant’s]. And that is his status as a juvenile and whether he belongs in this court at all. Insofar as it is possible, we do not wish to waive any of those rights, should it be declared at a later time in any of those cases that [the defendant] does not belong in this court at all. Now we have reserved those rights at various stages of the proceeding. . . .
“So your Honor, I’m submitting the nolo contendere plea subject to those comments that, should the Supreme Court decide that the transfer itself was not proper, it is the intention of the defense to reserve whatever rights it may have with regard to that.
“The Court: All right. But that’s the only condition that’s imposed on the plea of nolo contendere; is that correct?
“[Defense Counsel]: Yes, your Honor. . . .” Although the import of this colloquy is not free from all ambiguity, we conclude that it should be construed as conditional, as the defendant maintains.

In order to determine whether the conditionality of the defendant’s plea of nolo contendere, of itself, warrants appellate review of his claims, we must rehearse the circumstances under which an appeal can be taken from a conditional plea of nolo contendere. In 1982, the legislature enacted General Statutes § 54-94a, which modified the broad waiver of nonjurisdictional defects implicit in a plea of nolo contendere. Under § 54-94a, a defendant may enter a plea of nolo contendere conditional on the right to take an appeal from a trial court’s denial of a motion to suppress evidence based on an unreasonable search and seizure or from a denial of a motion to dismiss. State v. Madera, supra, 98; see also State v. Telesca, 199 Conn. 591, 596-97, 508 A.2d 1367 (1986). In State v. Madera, supra, 98-99, we held that a defendant’s express reservation of a claim falling outside of the ambit of § 54-94a, such as a challenge to the admissibility of his confession at trial, was not reviewable on appeal. It follows from Madera that a reserved claim of error does not automatically become reviewable under the statute simply because the defendant makes manifest his intent to enter a conditional plea of nolo contendere. The defendant in this case has offered no reasoned argument for departure from the rule of State v. Madera. Accordingly, he cannot prevail on his contention that his manifest intention on the record to enter a conditional plea automatically entitles him to review of the claims he hoped to reserve for appeal.

As an alternate basis for appellate review, the defendant, relying on State v. Chung, 202 Conn. 39, 44-45, 519 A.2d 1175 (1987), asks us to exercise our inherent supervisory authority over the administration of justice to dispose of his claims on their merits. In State v. Chung, the defendant, subsequent to a plea of nolo contendere, sought appellate review of the denial of his motion to suppress his confession as involuntarily and unintelligently made. Although we determined that the claim he had reserved for appeal fell outside the scope of § 54-94a, we invoked our supervisory authority to review his claim on the merits. Id., 43-45. That decision depended upon a conjunction of three special circumstances: (1) both the defendant and the state urged us to exercise our supervisory authority, all parties at trial having had the clear understanding and expectation that appellate review would be available; id., 44; (2) the defendant’s appeal presented a single issue that could adequately be reviewed upon the record then available; id.; and (3) the defendant’s claim could otherwise be tested only by recourse to a full, burdensome criminal trial. Id., 45.

The defendant’s appeal in this case is markedly different. The state has vigorously objected to plenary consideration of the defendant’s claims at this time. The defendant has raised a multiplicity of constitutional and statutory claims relating to his transfer to the regular criminal docket, upon which the trial court has not yet finally ruled because the defendant never raised them in a motion to dismiss the information. A remand would furnish the defendant an opportunity to file such a motion; Practice Book § 815; and the trial court would then have an occasion to determine which of his claims of error are properly encompassed thereby. Should the trial court, at that juncture, deny the motion to dismiss, the defendant would be able to seek review of the denial subsequent to a proper conditional plea under § 54-94a and Practice Book § 4003 (b). Thus the defendant might not be required to endure an entire trial to obtain appellate review of his claims. Accordingly, we decline to consider the merits of the defendant’s claims at this time.

The final issue that we must resolve, therefore, is whether, on the present record, we should affirm the judgment of the trial court, as the state urges us to do, or remand the case for further proceedings. The state’s argument for affirmance is premised on the proposition that the defendant’s plea of nolo contendere was not in fact conditional. See State v. Gilnite, 202 Conn. 369, 376, 521 A.2d 547 (1987). We have, however, already concluded that, in this case, contrary to the facts of State v. Gilnite, the defendant intended to enter a conditional plea of nolo contendere and the trial court accepted his plea as such. As in State v. Madera, supra, 107, therefore, this defendant’s plea was, at least in part, conditioned on preservation of his rights of appeal. The trial court mistakenly accepted the defendant’s plea of nolo contendere with a condition that could not be fulfilled under our procedures. Under these circumstances, the defendant’s conviction cannot be permitted to stand.

There is error, the judgment is set aside and the case is remanded to the trial court for further proceedings.

In this opinion the other justices concurred.

       General Statutes § 46b-120 defines “child” as “any person under sixteen years of age.”

       General Statutes (Rev. to 1983) § 46b-127, as amended by Public Acts 1983, No. 83-402, § 2, provides: “(Formerly Sec. 51-308). child charged WITH MURDER OR FELONY TRANSFERRED TO REGULAR CRIMINAL DOCKET, when. The court shall transfer to the regular criminal docket of the superior court from the docket for juvenile matters: (1) Any child referred for the commission of a murder under sections 53a-54a to 53a-54d, inclusive, provided any such murder was committed after such child attained the age of fourteen years; (2) any child referred for the violation of any provision of title 53a which is designated as a class A felony, if such violation was committed after such child attained the age of fourteen, provided such child has previously been adjudicated a delinquent at any age for a violation of any provision of title 53a, which at the time of such violation was designated a class A felony; or (3) any child referred for the violation of any provision of title 53a which is designated as a class B felony, provided such violation was committed after such child attained the age of fourteen years, and further provided such child has previously been adjudicated delinquent for two violations of any provision of title 53a, which at the time of such violations were designated a class A or B felony. No such transfer shall be valid unless, prior thereto, the court has made written findings, after a hearing, that there is probable cause to believe that the child has committed the act for which he is charged. Upon the effectuation of the transfer, such child shall stand trial and be sentenced, if convicted, as if he were sixteen years of age. If the action is dismissed or nolled or if such child is found innocent of the charge for which he was transferred, the child shall resume his status as a juvenile until he attains the age of sixteen.”

       “[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.
      “(b) Evidence that the defendant suffered from a mental disease, mental defect or other mental abnormality is admissible, in a prosecution under subsection (a), on the question of whether the defendant acted with intent to cause the death of another person.
      “(c) Murder is punishable as a class A felony in accordance with subdivision (2) of section 53a-35a unless it is a capital felony.”

       General Statutes § 46b-128 provides in relevant part: “(Formerly Sec. 51-309). investigation of delinquency complaint, nonjudicial disposition. petition OF delinquency. Whenever the superior court is in receipt of any written complaint filed by any person, any public or private agency or any federal, state, city or town department maintaining that a child’s conduct constitutes delinquency within the meaning of section 46b-120, it shall make a preliminary investigation to determine whether the facts, if true, would be sufficient to be a juvenile matter and whether the interests of the public or the child require that further action be taken. If so, the court may authorize the filing of a verified petition of alleged delinquency . . . .”

       The defendant subsequently filed an appeal challenging the propriety of his transfer to the regular criminal docket but withdrew the appeal in light of our decision in In re Juvenile Appeal (85-AB), 195 Conn. 303, 488 A.2d 778 (1985), holding that a juvenile transfer was not a final judgment for the purposes of appeal. Under Public Acts 1986, No. 86-185, such orders are now appealable. General Statutes §§ 46b-126, 46b-127.

       “[Practice Book] Sec. 3. family division
      “The family division of the superior court shall consist of the following parts:
      “(1) J-Juvenile matters including neglect, dependency, delinquency, families with service needs and termination of parental rights.
      “(2) S-Support and paternity actions.
      “(3) D-All other family relations matters, including dissolution of marriage cases.”

       “[General Statutes] Sec. 51-5a. duties and powers of chief court administrator. The chief court administrator: (1) Shall be the administrative director of the judicial department and shall be responsible for the efficient operation of the department, the prompt disposition of cases and the prompt and proper administration of judicial business; (2) shall meet periodically at such places and times as he may designate with any judge, judges, or committee of judges, and with the probate court administrator to transact such business as is necessary to insure the efficient administration of the judicial department; (3) may issue such orders, require such reports and appoint other judges to such positions to perform such duties, as he deems necessary to carry out his responsibilities; (4) may assign, reassign and modify assignments of the judges of the superior court to any division or part of the superior court and may order the transfer of actions under sections 51-347a and 51-347b; and (5) may provide for the convening of conferences of the judges of the several courts, or any of them, and of such members of the bar as he may determine, for the consideration of matters relating to judicial business, the improvement of the judicial system and the effective administration of justice in this state.”

       General Statutes § 51-165 (d) provides: “Any judge assigned to hear juvenile matters should have a commitment to the prompt resolution of disputes affecting the care and custody of children with full understanding of all factors affecting the best interests of children and, if practicable, shall devote full time to juvenile matters. If practicable, any such judge should be assigned to hear juvenile matters for not less than eighteen months.”

       “[General Statutes] Sec. 46b-121. (Formerly Sec. 51-302). juvenile matters DEFINED, authority of court. Juvenile matters include all proceedings concerning uncared-for, neglected or dependent children and youth and delinquent children within this state, termination of parental rights of children committed to a state agency, matters concerning families with service needs and contested termination of parental rights transferred from the probate court, but does not include matters of guardianship and adoption or matters affecting property rights of any child or youth over which the probate court has jurisdiction. In such juvenile matters, the superior court shall have authority to make and enforce such orders directed to parents, including any person who acknowledges before said court paternity of a child born out of wedlock, guardians, custodians or other adult persons owing some legal duty to a child or youth therein, as it deems necessary or appropriate to secure the welfare, protection, proper care and suitable support of a child or youth subject to its jurisdiction or otherwise committed to or in the custody of the commissioner of children and youth services. Said court shall also have authority to grant and enforce injunctive relief, temporary or permanent in all proceedings concerning juvenile matters. If any order for the payment of money is issued by said court, the collection of such money shall be made by said court, except orders for support of children committed to any state agency or department, which orders shall be made payable to and collected by the department of administrative services. In juvenile matters, the court shall have authority to make and enforce orders directed to persons liable hereunder on petition of said department of administrative services made to said court in the same manner as is provided in section 17-324, in accordance with the provisions of subsection (b) of section 17-31i, section 17-32, 17-82e, 17-295, 17-295a, 46b-129 or 46b-130, and all of the provisions of section 17-324 shall be applicable to such proceedings. Any judge hearing a juvenile matter may make any other order in connection therewith within his authority to grant as a judge of the superior court and such order shall have the same force and effect as any other order of the superior court.”

       General Statutes (Rev. to 1983) § 46b-126, as amended by Public Acts 1983, No. 83-402, § 1, provides: “(Formerly Sec. 51-307). child charged WITH A CLASS A FELONY OR SERIOUS JUVENILE OFFENSE TRANSFERRED TO REGULAR criminal docket, WHEN, (a) The court shall hold a transfer hearing to determine whether it is appropriate to transfer and may transfer from the docket for juvenile matters to the regular criminal docket of the superior court any child referred for the commission of a class A felony, or for any serious juvenile offense designated as a class B or C felony if such child has previously been adjudicated a delinquent for a serious juvenile offense, as defined in section 46b-120, provided such child has attained the age of fourteen at the time the alleged delinquent act was committed. If the child is or has been under the custody of the commissioner of children and youth services, the commissioner shall provide any relevant information concerning the amenability of the child to treatment for use at the transfer hearing. No such transfer shall be valid unless, prior thereto, the court has made written findings after a hearing, that there is probable cause to believe that (1) the child has committed the act for which he is charged; (2) the child is not amenable to treatment in any institution or state agency or other available facility designed for the care and treatment of children to which said court may effect placement of such child which is suitable for his care or treatment; and (3) the prior adjudications of the child, together with the serious and dangerous nature of the acts and the physical, mental and emotional history and condition of the child, are such that the child is a danger to society and requires more secure and longer term handling than the juvenile justice system is able to provide and the institutions to which said court may sentence a defendant sixteen years of age or over are more suitable for the care and treatment of such child. Upon the effectuation of the transfer, such child shall stand trial and be sentenced, if convicted, as if he were sixteen years of age. If the action is dismissed or nolled or if such child is found innocent of the charge for which he was transferred, the child shall resume his status as a juvenile until he attains the age of sixteen.
      “(b) There shall be established or designated by the department of children and youth services a secure facility or facilities within the state devoted to the care and treatment of children, which children are under the jurisdiction of the superior court. A consideration for admission to such a facility shall be adjudication for a serious juvenile offense.”

       Under General Statutes § 46b-145, “[n]o child shall be prosecuted for an offense before the superior court, nor shall the adjudication of such court that a child is delinquent in any case be deemed a conviction of crime except as provided in sections 46b-126 and 46b-127.”

       General Statutes 46b-140 (e) states in part that “[a]ny child or youth coining within the jurisdiction of the court, who is found to be mentally ill, may be committed by said court to the commissioner of children and youth services. . . . ” Given the clear import of the 1978 merger, the word “jurisdiction” in § 46b-140 (c) denotes the Superior Court’s general jurisdiction and does not imply a separate jurisdiction over Juvenile Matters.

       Relying on the defendant’s statement at the plea canvass that the only promise made to him regarding his plea was that the state would recommend twenty-five years imprisonment, the state claims that the defendant’s plea cannot be construed as conditional. This contention is belied by the remainder of the record.

       Practice Book § 4003 (b) provides: “With the approval of the court, after a hearing to consider any objections thereto, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, to review of the adverse determination of any motion made prior to the close of evidence, which motion must be specified in such written reservation. If the defendant prevails on appeal, the judgment shall be set aside and the defendant shall be allowed to withdraw his plea after the case has been remanded to the trial court. The court shall not accept a plea of guilty or nolo contendere pursuant to this subsection where the adverse determination of the specified motion would not have a significant impact on the disposition of the case in the trial court. The court shall also decline to accept such a nolo contendere or guilty plea where the record available for review of the ruling upon the specified motion is inadequate for appellate review of the court’s determination thereof.”


author: Covello, J.

text:
    The Connecticut Water Company v. Pasquale A. Barbato, Acting Commissioner of Revenue Services
    (13166)
    Healey, Shea, Callahan, Covello and Hull, Js.
    Argued December 4, 1987
    decision released February 23, 1988

      Scott P. Moser, with whom were Thomas R. Webb and, on the brief, William G. DeLana, for the appellant (plaintiff).

      Jonathan L. Ensign, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Jane D. Comerford, assistant attorney general, for the appellee (defendant).
   Covello, J.

This is the appeal from an assessment of a sales and use tax upon goods and services used by the plaintiff, the Connecticut Water Company, in the course of the construction of two water treatment plants. The plaintiff claims that the goods and services are exempt from taxation. The matter was reserved for the advice of this court on a stipulation of the following facts.

The plaintiff sells drinking water. Between 1979 and 1982, it constructed two water treatment plants, one in Clinton and the other in Chester. At these facilities, untreated or raw water that is unsuitable for drinking is drawn from reservoirs and collected in rapid mixing tanks in which hydrated lime and other agents that assist in the removal of suspended solids are added. Thereafter, the water passes through a pulsator clarifier unit (Clinton facility only) and certain filtration media, both of which serve to remove significant amounts of organic solids and other foreign material. In addition, this process assists in the correction of the water’s odor and taste. A number of chemical compounds not present in the untreated water are added and thereafter remain present through to consumption. The entire process involves the use of basins, tanks, buildings, structures, pipes and a variety of machinery. Among the structures are certain water tanks known as “clear-wells” in which finished water is held prior to its distribution by gravity feed through mains and pipes to the plaintiff’s customers.

The plaintiff made a timely petition to the defendant commissioner of revenue services for a reassessment of the sales and use tax assessed by him. Upon the defendant’s denial of this petition, the plaintiff appealed to the Superior Court pursuant to General Statutes § 12-422.

The questions reserved for the advice of this court are: (1) Is the transformation of raw water into finished, potable water at the company’s treatment plants a process that constitutes “manufacturing” within the meaning of General Statutes § 12-412 (34)? and (2) Are certain tanks known as “clearwells,” which are used as the initial distribution point for delivery of potable water to the company’s customers, exempt from the sales and use tax pursuant to General Statutes § 12-412 (18)? We answer the first question “no” and the second question “yes.”

I

General Statutes (Rev. to 1981) § 12-412 (hh), which was in effect at the time of the defendant’s assessment, provided an exemption from the sales and use tax for “[s]ales of and the storage, use or other consumption of machinery used directly in a manufacturing or agricultural production process.” The plaintiff argues that its water treatment equipment is machinery used in a manufacturing process.

While there is no statutory definition of “manufacturing,” § 12-426-11b (a) (10) of the regulations of Connecticut state agencies provides that “ ‘[mjanufacturing’ shall mean the performance as a business of an integrated series of operations which places personal property in a form, composition or character different from that in which it was acquired for sale in the regular course of business by the manufacturer. The change in form, composition, or character must be a substantial change, and it must result in a transformation of property into a different product having a distinctive name, nature and use. Operations such as compounding or fabricating are illustrative of the types of operation which may result in such a change. ‘Manufacturing’ is an activity which shall occur solely at an industrial plant.” (Emphasis added.)

Section 12-426-11b (a) (7) of the regulations of Connecticut state agencies in turn provides that an “ ‘[industrial plant’ shall mean a manufacturing facility at which a manufacturing production process is occurring. . . .” (Emphasis added.) A “manufacturing production process” is defined by these same regulations as “any one of a series of production activities, beginning with the movement of the raw materials after their receipt, inspection and storage, to the first production machine and ending with the completion of the finished product, including any packaging operations, for its sale to the ultimate consumer. . . .” Regs., Conn. State Agencies § 12-426-11b (a) (11).

The plaintiff claims that the present controversy should be resolved in its favor based upon the ruling in Ziperstein v. Tax Commissioner, 178 Conn. 493, 423 A.2d 129 (1979). In that case, we held that electricity used in the preparation of various ice milk and frozen slush products was exempt from sales tax, having been used in “a process of manufacturing tangible personal property for sale in the regular course of business” as then provided in § 12-426-11 (g) of the regulations of Connecticut state agencies. Id., 499. The ice milk in issue was “produced by taking a commercially prepared liquid mixture of sugar, com syrup and other items, and whipping air into the mixture and passing it through refrigerating machinery .... The . . . ‘slush’ . . . drink [was] made by mixing water, sugar, flavoring and chemical additives in a walk-in cooler where the product is stored until pumped from a machine.” Id., 499-500.

Since a “process of manufacturing” had neither a statutory nor regulatory definition at the time, we applied the commonly understood meaning of the phrase and found the production of the plaintiff’s products to be a “process of manufacturing” because “raw materials are transformed from an intrinsically valueless state into a finished product which has an enhanced value and use . . . .’’ (Emphasis added.) Id., 500. Relying on Ziperstein’s emphasis on enhanced value and use, the plaintiff claims that its conversion of raw water to potable water is analogous to the production of the dairy bar products in that case.

The defendant argues that after the Ziperstein ruling, § 12-426-11b (a) (10) of the regulations of Connecticut state agencies was promulgated, defining “manufacturing” in a narrower context with a different focus. The defendant claims that the processing of potable water does not place personal property in “a form, composition or character different from that in which it was acquired for sale” as the regulation now requires. The defendant further claims that the plaintiffs process does not meet this regulation’s requirement that “[t]he change in form, composition, or character must be a substantial change, and it must result in a transformation of property into a different product having a distinctive name, nature and use. ” (Emphasis added.) See footnote 6, supra. We agree.

“It is a settled rule of law that statutes which exempt from taxation are to be strictly construed against the party claiming an exemption.” Hartford Hospital v. Board of Tax Review, 158 Conn. 138, 147, 256 A.2d 234 (1969); Clinton Nurseries, Inc. v. Commissioner of Revenue Services, 205 Conn. 761, 764, 535 A.2d 361 (1988); Ziperstein v. Tax Commissioner, supra, 496. “[N]o claimant is entitled to an exemption unless he satisfies all the statutory requirements.” Renz v. Monroe, 162 Conn. 559, 562-63, 295 A.2d 558 (1972). Further, in the absence of any evidence to the contrary, we may assume that this regulation’s submission to the legislative regulation review committee and its subsequent ratification “[support] the position that the regulation is consistent with the general statutory scheme that the regulation was designed to implement.” Texaco Refining & Marketing Co. v. Commissioner of Revenue Services, 202 Conn. 583, 600, 522 A.2d 771 (1987).

This regulation’s requirement for a change in “form, composition, or character” to the end that there has been a “transformation of property” is consistent with our holding in American Sumatra Tobacco Corporation v. Tone, 127 Conn. 132, 15 A.2d 80 (1940). There, we concluded that the numerous steps required in preparing shade grown tobacco for market did not constitute a manufacturing operation even though stopping the operation “short of completion would result in spoiled and valueless tobacco.” Id., 137. Despite the fact that “[t]he production and preparation for market of . . . shade grown tobacco is a complicated, intricate and unique process”; id., 134; we reasoned that “[it was] still a leaf of tobacco.” Id., 138. Similarly, despite the complexity of the equipment and procedures used by the plaintiff to render its water potable, the fact remains that the plaintiff’s eventual product is still water and it does not carry the “distinctive name [and] nature” required by the regulation. Therefore, the transformation of raw water into finished, potable water at the company’s treatment plant is not a process that constitutes “manufacturing” within the meaning of General Statutes § 12-412 (34).

II

General Statutes (Rev. to 1981) § 12-412 (r) further provided an exemption from the sales and use tax for “materials . . . when such products are used directly in the furnishing of . . . water . . . when delivered to consumers through mains, lines or pipes.” The issue presented here is whether the plaintiffs “clearwells” are products used directly in the furnishing of water, thereby qualifying them for the tax exemption.

The defendant argues that furnishing connotes the act of providing, supplying or giving. Since the “clear-wells” are tanks used to hold the processed water, the defendant claims that they are not directly involved in the furnishing of water and therefore are not materials qualifying for the exemption. We disagree.

“In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language . . . .” General Statutes § 1-1 (a). To “furnish” means “to complete, carry out, equip ... to provide or supply with what is needed . . . .” N. Webster, Third New International Dictionary (1986). “Furnish” implies the provision of essentials required for performing a function. The function involved here is the delivery of water from its seller to the consumer. An element essential to performing this function is a vessel to contain the water until such time as there is a consumer demand for it. Drawing the water from the “clearwell” is as much an integral part of this function as is drawing water from the mains and pipes which comprise the rest of the distribution network. We conclude that the “clearwells” are products used directly in the furnishing of water and thereby qualify for the exemption authorized by the statute.

The answer to question one is: No, the transformation of raw water into finished, potable water at the company’s treatment plant is not a process that constitutes “manufacturing” within the meaning of General Statutes § 12-412 (34).

The answer to question two is: Yes, the “clearwells,” which are used as the initial distribution point for delivery of potable water to the company’s customers, are exempt from the sales and use tax pursuant to General Statutes § 12-412 (18).

No costs will be taxed to any party.

In this opinion the other justices concurred.

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

       “[General Statutes] Sec. 12-412. exemptions. Taxes imposed by this chapter shall not apply to the gross receipts from the sale of and the storage, use or other consumption in this state with respect to the following items ....
      “(34) Machinery used in manufacturing or agricultural production. Sales of and the storage, use or other consumption of machinery used directly in a manufacturing or agricultural production process. The word ‘machinery’ as used in this subsection means the basic machine itself, including all of its component parts and contrivances, such as belts, pulleys, shafts, moving parts, operating structures and all equipment or devices used or required to control, regulate or operate the machinery, but excluding office equipment or data processing equipment other than numerically controlled machinery used directly in the manufacturing process.”

       General Statutes § 12-412 (18) grants an exemption from tax for: “Production materials. Sales of and the storage or use of materials, rope, fishing nets, tools and fuel or any substitute therefor, which become an ingredient or component part of tangible personal property to be sold or which are used directly in agricultural production or in the fishing industry or in an industrial plant in the actual fabrication of the finished product to be sold. For the purpose of this subsection, the raising of poultry and livestock shall be construed to be included in the term ‘agricultural production.’ Sales of and the storage or use of materials, tools and fuel or any substitute therefor, when such products are used directly in the furnishing of power to an industrial manufacturing plant or in the furnishing of gas, water, steam or electricity when delivered to consumers through mains, lines or pipes.”

       General Statutes (Rev. to 1981) § 12-412 (hh) provides: “Machinery used in manufacturing or agricultural production. Sales of and the storage, use or other consumption of machinery used directly in a manufacturing or agricultural production process. The word ‘machinery’ as used in this subsection means the basic machine itself, including all of its component parts and contrivances, such as belts, pulleys, shafts, moving parts, operating structures and all equipment or devices used or required to control, regulate or operate the machinery, but excluding office equipment or data processing equipment other than numerically controlled machinery used directly in the manufacturing process.” This statute has been recodified as General Statutes § 12-412 (34), and the identical language has been retained. See footnote 2, supra.

       In the present case, there is really only one raw material, i.e., the water. There is, therefore, a significant factual distinction between this case and Ziperstein v. Tax Commissioner, 178 Conn. 493, 423 A.2d 129 (1979).

       Section 12-426-11b (a) (10) of the regulations of Connecticut state agencies, which became effective April 7, 1980, provides: “ ‘Manufacturing’ shall mean the performance as a business of an integrated series of operations which places personal property in a form, composition or character different from that in which it was acquired for sale in the regular course of business by the manufacturer. The change in form, composition, or character must be a substantial change, and it must result in a transformation of property into a different product having a distinctive name, nature and use. Operations such as compounding or fabricating are illusrative of the types of operation which may result in such a change. ‘Manufacturing’ is an activity which shall occur solely at an industrial plant.”

       We conclude that the test of “enhanced value and use” set forth in Ziperstein v. Tax Commissioner, 178 Conn. 493, 500, 423 A.2d 129 (1979), has been superseded and replaced by the later, more comprehensive regulation defining manufacturing, § 12-426-11b (a) (10) of the regulations of Connecticut state agencies.