author: Santaniello, J.

text:
    State of Connecticut v. Lawrence Wilbur Lloyd
    (12238)
    Healey, Shea, Dannehy, Santaniello and Callahan, Js.
    Argued January 16
    decision released April 15, 1986

      Milo J. Altschuler, for the appellant (defendant).

      Julia DiCocco Dewey, assistant state’s attorney, with whom, on the brief, was Arnold Markle, state’s attorney, for the appellee (state).
   Santaniello, J.

The principal question raised in this appeal is when, and under what circumstances, a trial court must order a competency hearing before ruling on a motion to withdraw a guilty plea and before imposing sentence. On March 9, 1983, the defendant, Lawrence Lloyd, pleaded guilty to the crime of possession of cocaine with intent to sell, in violation of General Statutes (Rev. to 1981) § 19-480a. The trial court, after conducting an extensive canvass, accepted his plea. He was sentenced on May 6,1983, to twelve years imprisonment and was ordered to pay a $3000 fine. The defendant appeals, claiming that the trial court erred: (1) in denying his motion to withdraw his plea of guilty without conducting a hearing to determine his competence on the day he entered his plea; and (2) in imposing sentence without conducting a hearing to determine his competence at the time of sentencing. We find no error.

The chronology of events and circumstances surrounding the entry of the plea and imposition of sentence are as follows. The defendant was arrested on January 24, 1982, in Meriden and charged with possessing four and one-half pounds of cocaine with intent to sell. He was released on bond and appeared in court on March 9,1983, to enter his plea of guilty. Pursuant to Practice Book §§ 711 through 713, the trial court, Norcott, J., asked him a series of questions to ensure that his plea was made knowingly, voluntarily and intelligently. The court specifically asked him if he was at that time under the influence of any medication or narcotics and he responded “No.” The court thereafter accepted the plea and continued the case for sentencing on April 15,1983. The defendant remained free on bond until the sentencing date, but when he failed to appear, the bond was forfeited and his re-arrest was ordered. Defense counsel at oral argument indicated that he was re-arrested on the evening of May 5,1983.

On May 6, 1983, the defendant was brought before the trial court, Kinney, J., for sentencing on the charge of possession with intent to sell and for plea on the charge of failure to appear. At that time defense counsel requested that the guilty plea be withdrawn and that the court hold a hearing on the defendant’s competency. The court denied both requests and proceeded to sentencing. During the hearing the defendant testified that at the time of his arrest he used cocaine daily and sold the narcotic to support his habit. The court also had as part of the presentence investigation report a ten month old medical report indicating that the defendant had been addicted to cocaine in the past and that the defendant had suffered from “organic brain disease, probably due to chronic, sustained drug abuse.”

I

The defendant first challenges the propriety of the trial court’s denial of his motion to withdraw his plea of guilty. He claims that he was incompetent on March 9, 1983, the day he entered his plea, and that the trial court should have ordered a hearing on the issue before denying the motion. In support of his motion to withdraw, the defendant averred that on the day of the plea he was under the influence of drugs and did not understand the questions that were asked or the meaning of his plea. The defendant did not state when the drugs had been consumed, how much he had taken, or even what type of narcotic he had used.

Our discussion of this issue begins with the fundamental principle that a guilty plea violates constitutional requirements of due process if made while the defendant is incompetent. Drope v. Missouri, 420 U.S. 162, 171-75, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975); State v. Watson, 198 Conn. 598, 603, 504 A.2d 497 (1986); State v. Torres, 182 Conn. 176, 184-86, 438 A.2d 46 (1980). As we have recently stated, “every valid guilty plea must . . . [represent] a knowing choice among available alternative courses of action, an understanding of the law in relation to the facts, and sufficient awareness of the relevant circumstances and likely consequences of the plea. McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969) . . . . ” (Citations omitted.) State v. Watson, supra, 604.

After a guilty plea is accepted, but before the imposition of sentence, the defendant may withdraw his plea if he establishes a ground for relief under Practice Book § 721. State v. Lasher, 190 Conn. 259, 265, 460 A.2d 970 (1983); State v. Torres, supra, 185. To warrant consideration of withdrawal, the defendant “must allege and provide facts which justify permitting him to withdraw his plea under § 721. [State v. Deboben, 187 Conn. 469, 474, 446 A.2d 828 (1982)].” State v. Lasher, supra, 266. If the defendant alleges in his motion for withdrawal that he was incompetent at the time he entered his plea, an evidentiary hearing may be required to explore further the issue of competence. United States v. Masthers, 539 F.2d 721, 726 (D.C. Cir. 1976); State v. Watson, supra, 611-14. “ ‘In considering whether to hold an evidentiary hearing on a motion to withdraw a guilty plea the court may disregard any allegations of fact, whether contained in the motion or made in an offer of proof, which are either conclusory, vague or oblique. For the purpose of determining whether to hold an evidentiary hearing, the court should ordinarily assume any specific allegations of fact to be true. If such allegations furnish a basis for withdrawal of the plea under § 721, and are not conclusively refuted by the record of the plea proceedings, and other information contained in the court file, then an evidentiary hearing is required.’ State v. Torres, supra, 185-86; see State v. Lasher, [supra].” State v. Watson, supra, 612-13; see also United States v. Fournier, 594 F.2d 276, 278-79 (1st Cir. 1979).

After carefully reviewing the record of the plea canvass and the proceedings on the motion to withdraw, we conclude that the defendant failed to establish the need for a hearing to determine his competence on March 9,1983, and that the trial court therefore properly denied the motion without first ordering a hearing. The defendant’s allegations concerning his use of drugs on March 9 were conclusory and were not supported by specific facts. Cf. United States ex rel. Early v. Morris, 396 F. Sup. 827 (N.D. Ill. 1975) (motion included specific facts concerning amounts, time of ingestion, history of abuse, and documentation of previous requests for hospitalization). The defendant’s history of drug abuse and the medical report were relevant, but the court had no basis for linking his history of drug problems to the alleged incompetence without knowing the details of drug use on the day of the plea. The bare assertion that he was using drugs and that he therefore did not understand the questions asked or the nature of the plea was insufficient for the court to have ordered an evidentiary hearing. See State v. Watson, supra, 613-14; cf. United States v. Miranda, 437 F.2d 1255, 1258-59 (2d Cir. 1971). Moreover, the defendant during the plea proceedings specifically told the court that he was not then under the influence of any drugs or medication. This alone would tend to refute the defendant’s allegations made in his motion to withdraw. See Falu v. United States, 308 F. Sup. 1051, 1051-52 (S.D.N.Y.), aff’d, 421 F.2d 687 (2d Cir. 1969).

II

The defendant also claims that the trial court erred in imposing sentence without first ordering a competency hearing. On May 6,1983, the day of sentencing, defense counsel argued to the court that the defendant appeared to be confused and not to “understand everything that’s going on.” Other than this assertion, there were no specific allegations concerning his competence to be sentenced. The court could have assumed that the defendant’s current mental state was the product of drag abuse, but that was never averred. Extrinsic evidence before the court in support of the claim of incompetence included: the defendant’s history of drug abuse, his statements to the court that at the time of his arrest he used cocaine daily, and the medical report which indicated that the defendant had suffered from “organic brain disease.” Evidence tending to rebut the claim included the fact that the defendant had been in jail overnight and presumably did not ingest any drugs in the interim, the finding of the court that he was not under the influence of drugs eight weeks previously at the plea proceedings, and the court’s own observations of the defendant.

General Statutes § 54-56d provides that a defendant shall not be tried, convicted or sentenced while incompetent and permits a competency hearing to be held whenever it appears that the defendant “is unable to understand the proceedings against him or to assist in his own defense.” As a matter of due process, the trial court is required to conduct an independent inquiry into the defendant’s competence whenever he makes “specific factual allegations that, if true, would constitute substantial evidence of mental impairment. Sanders v. United States, 373 U.S. 1, 21, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963). ‘ “Substantial evidence” is a term of art. “Evidence” encompasses all information properly before the court, whether it is in the form of testimony or exhibits formally admitted or it is in the form of medical reports or other kinds of reports that have been filed with the court. Evidence is “substantial” if it raises a reasonable doubt about the defendant’s competency . . . .’ Moore v. United States, 464 F.2d 663, 666 (9th Cir. 1972).” State v. Watson, supra, 605; see Pate v. Robinson, 383 U.S. 375, 385, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966); de Kaplany v. Enomoto, 540 F.2d 975, 982-83 (9th Cir. 1976), cert. denied, 429 U.S. 1075, 97 S. Ct. 815, 50 L. Ed. 2d 793 (1977); People v. Pennington, 66 Cal. 2d 508, 518, 426 P.2d 942, 58 Cal. Rptr. 374 (1967). The trial court should carefully weigh the need for a hearing in each case, but this is not to say that it should be available on demand. The decision to grant a hearing requires the exercise of sound judicial discretion. United States v. Hall, 523 F.2d 665, 667 (2d Cir. 1975); Riccardi v. United States, 428 F. Sup. 1059, 1064-65 (E.D.N.Y.), aff’d, 573 F.2d 1294 (2d Cir. 1977). “[Prisoners are not entitled and need not be permitted to make bald charges of mental incompetency to stand trial for the purpose simply of obtaining an excursion from the penitentiary. . . . A balance must be struck between the practical and the theoretical, and this can best be done by the [trial court].” United States v. Miranda, supra, 1258, quoting Nelms v. United States, 318 F.2d 150, 154 (4th Cir. 1963).

Applying these principles, we conclude that the defendant failed to make specific factual allegations sufficient to raise a reasonable doubt as to his competence and that the trial court did not err in imposing sentence. The defendant did not specify the grounds of his claimed incompetency and left it to the trial court to surmise why he was mentally impaired. Cf. Sanders v. United States, supra, 5-6, 20 (need for evidentiary hearing founded on allegations replete with specifics concerning drug use; included names of witnesses, a probation officer’s report and recent request for hospitalization); Hansford v. United States, 365 F.2d 920, 923-25 (D.C. Cir. 1966) (need for evidentiary hearing where the defendant was visibly suffering from withdrawal, there was documentation of mental problems, and the defendant testified during trial that he was at that time using drugs, even during lunch recess); United States ex rel. Early v. Morris, supra. The court could have inferred that the alleged incompetence was linked to drug abuse, but the defendant was obligated to make such an allegation. Even if the court were to have drawn that inference, it did not have any of the details of how drugs may have affected his competence that day. On the facts, this case differs little from that of State v. Watson, supra, where we held that the defendant was not entitled to a competency hearing at the time of his plea, because his allegations were nothing more than brief, unsubstantiated references to psychiatric problems and the use of medication. Id., 605-606. The evidence of this defendant’s involvement in drugs and his medical report were relevant, but the court had no way of knowing whether that information had anything to do with the vague, conclusory allegations made. See United States v. Mills, 597 F.2d 693, 699 (9th Cir. 1979) (no need for a hearing based on a vague claim that defendant was on sedatives and unable to converse with his attorney where detailed facts concerning usage were lacking); United States v. Falu, 421 F.2d 687 (2d Cir. 1969) (conclusory statement that a defendant was “on drugs” at time of sentencing did not justify a hearing where allegations did not specify details). Thus, the defendant’s allegations were insufficient to entitle him to a competency hearing and the trial court did not violate his right to due process by proceeding with sentencing.

There is no error.

In this opinion the other judges concurred.

       The defendant did not specifically file a request for an evidentiary hearing either as to his competence at the time of his guilty plea or as to his competence for sentencing. He also did not formally request a continuance for sentencing. These procedural defects ordinarily will not constitute a waiver of his right to a competency hearing, however, when, as here, the defendant’s competence was clearly placed in issue. Pate v. Robinson, 383 U.S. 375, 384, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966); United States v. Hollis, 569 F.2d 199, 205 (3d Cir. 1977).

       Practice Book § 721 provides:
      “The grounds for allowing the defendant to withdraw his plea of guilty after acceptance are as follows:
      “(1) The plea was accepted without substantial compliance with Sec. 711;
      “(2) The plea was involuntary, or it was entered without knowledge of the nature of the charge or without knowledge that the sentence actually imposed could be imposed;
      “(3) The sentence exceeds that specified in a plea agreement which had been previously accepted, or in a plea agreement on which the court had deferred its decision to accept or reject the agreement at the time the plea of guilty was entered;
      “(4) The plea resulted from the denial of effective assistance of counsel;
      “(5) There was no factual basis for the plea; or
      “(6) The plea either was not entered by a person authorized to act for a corporate defendant or was not subsequently ratified by a corporate defendant.”

       We note also that defense counsel at oral argument expressed the opinion that at the time of the plea the defendant appeared to him to have been competent. See Riccardi v. United States, 428 F. Sup. 1059, 1065 (E.D.N.Y.), aff’d, 573 F.2d 1294 (2d Cir. 1977).

       General Statutes § 54-56d (formerly § 54-40) provides in relevant part: “(a) COMPETENCY required, definition. A defendant shall not be tried, convicted or sentenced while he is not competent. For the purposes of this section, a defendant is not competent if he is unable to understand the proceedings against him or to assist in his own defense.
      “(b) presumption of competency. A defendant is presumed to be competent. The burden of proving that the defendant is not competent by clear and convincing evidence and the burden of going forward with the evidence are on the party raising the issue. The burden of going forward with the evidence shall be on the state if the court raises the issue. The court may call its own witnesses and conduct its own inquiry.
      “(c) request for examination. If at any time during a criminal proceeding it appears that the defendant is not competent, counsel for the defendant or for the state, or the court, on its own motion, may request an examination to determine the defendant’s competency.
      * ** *
      “(e) hearing. The court shall hold a hearing as to the competency of the defendant no later than ten days after it receives the written report. Any evidence regarding the defendant’s competency, including the written report, may be introduced at the hearing by either the defendant or the state. If the written report is introduced, at least one of the examiners must be present to testify as to the determinations in the report, unless his presence is waived by the defendant and the state. Any member of the clinical team shall be considered competent to testify as to the team’s determinations. A defendant and his counsel may waive the court hearing only if the examiners, in the written report, determine without qualification that the defendant is competent.
      “(f) COURT FINDING OF COMPETENCY OR INCOMPETENCY. If the Court, after the hearing, finds that the defendant is competent, it shall continue with the criminal proceedings. If it finds that the defendant is not competent, it shall also find whether there is substantial probability that the defendant, if provided with a course of treatment, will regain competency within the maximum period of any placement order permitted under this section.”


source: Caselaw Access Project

author: Shea, J.

license: Public Domain

text:
    First Bank v. David A. Simpson et al.
    (12600)
    Healey, Shea, Dannehy, Callahan and Bahall, Js.
    Argued February 4
    decision released April 15, 1986

      Bonn A. Swift, for the appellants (defendants).

      David R. Sirois, for the appellee (plaintiff).
   Shea, J.

The sole issue on this appeal is whether the holder of a second mortgage is barred from instituting an action on the underlying obligation where it did not pursue a deficiency judgment in a foreclosure action instituted by the first mortgagee. The plaintiff, First Bank, brought this action against the defendants, David A. Simpson, Helen D. Simpson, and D. Bruce Simpson, for collection of a promissory note that had been secured by five second mortgages. On cross motions for summary judgment, the trial court found in favor of the plaintiff. The defendants appealed. We find no error.

On March 17, 1983, the defendants executed a promissory note in favor of the plaintiff in the amount of $73,100. As security for the note, the defendants gave the plaintiff second mortgages on each of five condominium units they owned in North Branford. On December 23,1982, the first mortgagee of each of the five condominium units, Branford Savings Bank, instituted a series of foreclosure actions against the defendants. Branford Savings Bank joined First Bank, the second mortgagee, as a codefendant in each of the actions. Branford Savings Bank obtained a judgment of strict foreclosure and law days for redemption were established. Neither First Bank nor any of the other defendants exercised a right to redeem the property and title to the mortgaged premises became absolute in Branford Savings Bank. On September 16, 1983, First Bank instituted the present action.

Because none of the facts was in dispute, the plaintiff and the defendants filed motions for summary judgment. The defendants conceded that the note was genuine and admitted that they had declined to tender payment to the plaintiff after demand had been made. Nevertheless, the defendants claimed that they were entitled to judgment as a matter of law under General Statutes §§ 49-1 and 49-14, which, they argued, require that the judgment of strict foreclosure in favor of Branford Savings Bank operate as a bar to any further action on the debts owed to any party to the foreclosure proceedings. The trial court denied the defendants’ motion for summary judgment and found in favor of the plaintiff. The defendants have appealed, claiming that the trial court erred in concluding that the provisions of General Statutes §§ 49-1 and 49-14 do not bar the plaintiffs action on the underlying note.

Under General Statutes § 49-1, a judgment of strict foreclosure extinguishes all rights of the foreclosing mortgagee on the underlying note, except those enforceable through the use of the deficiency judgment procedure delineated in General Statutes § 49-14. General Statutes § 49-14 provides, in relevant part, that “[a]t any time within thirty days after the time limited for redemption has expired, any party to a mortgage foreclosure may file a motion seeking a deficiency judgment.” Public Acts 1979, No. 79-110. Under the statute, a hearing must be held on the motion where the court “shall hear the evidence, establish a valuation for the mortgaged property and shall render judgment for the plaintiff for the difference, if any, between such valuation and the plaintiffs claim.” Practice Book § 528. Such a deficiency judgment, in light of § 49-1, is, therefore, the only available means of satisfying a mortgage debt when the security is inadequate to make the foreclosing plaintiff whole. Simsbury Bank & Trust Co. v. Ray Carlson Lumber Co., 154 Conn. 216, 219, 224 A.2d 544 (1966); see generally note, “Connecticut Mortgage Foreclosure: Deficiency Judgment and Problems of Subsequent Encumbrancers,” 2 Conn. L. Rev. 413 (1969); note, “An Act Concerning the Foreclosure of Mortgages,” 32 Conn. B.J. 200 (1958).

We agree with the defendants’ interpretation of the statutes to the extent that § 49-1 would prohibit a foreclosing first mortgagee, such as Branford Savings Bank, which had failed to avail itself of the deficiency-judgment procedure of § 49-14, from instituting any further action against the defendants. We cannot, however, construe these statutes to have the same effect with reference to further action on the underlying obligation by a nonforeclosing second mortgagee, such as First Bank.

The defendants’ argument is refuted by the express language of §§ 49-1 and 49-14. General Statutes § 49-1 provides that “the foreclosure of a mortgage is a bar to any further action upon the mortgage debt, note or obligation . . . .’’(Emphasis added.) We construe the term “mortgage debt” to refer to the mortgage of the plaintiff who initiated the foreclosure action. The defendants urge us, however, to interpret this provision as barring First Bank from bringing suit on its underlying obligation merely because it was joined as a party to the foreclosure proceedings. The judgment of strict foreclosure clearly vested absolute title in the foreclosing first mortgagee and extinguished any interest of the plaintiff in the foreclosed property. City Lumber Co. of Bridgeport, Inc. v. Murphy, 120 Conn. 16, 25, 179 A. 339 (1935). A note and the mortgage securing it are, however, separate instruments executed for different purposes. Little v. United Investors Corporation, 157 Conn. 44, 48, 245 A.2d 567 (1968). Although First Bank’s interest in the property was extinguished by the judgment of foreclosure, it did not initiate the foreclosure proceedings, and, therefore, is not prevented from proceeding independently against the defendants on the underlying note. “[T]he provisions of § 49-1, by which a foreclosure is made to bar any further action on the note, clearly are applicable only to foreclosing plaintiffs and have no effect upon the debts of nonforeclosing subsequent encumbrancers.” Caron, Connecticut Foreclosures (Sup. 1984) p. 37.

In the hearing contemplated under § 49-14 to obtain a deficiency judgment, the court, after hearing the party’s appraisers, determines the value of the property and calculates any deficiency. This deficiency judgment procedure presumes the amount of the debt as established by the foreclosure judgment and merely provides for a hearing on the value of the property. The terms of the statute provide that if a deficiency is established, the court shall render “judgment for the plaintiff’ and that the “plaintiff in any further action upon the debt, note or obligation, shall recover only the amount of such judgment.” (Emphasis added.) We must construe “plaintiff” to refer to the plaintiff in the foreclosure action, and not, as the defendants contend, to be merely a reference to “any party” seeking a deficiency judgment. “[General Statutes §] 49-14 is . . . by its terms applicable only to claims by foreclosing plaintiffs.” Caron, Connecticut Foreclosures (1981) p. 138. The deficiency judgment procedure of § 49-14 is, therefore, inapplicable to First Bank.

The defendants claim that by interpreting § 49-14 as inapplicable to nonforeclosing second mortgagees, undue prejudice can result to mortgagors in a situation where there is sufficient equity in the property to satisfy the second mortgage, as well as all prior encumbrances. They assert that had First Bank sought a deficiency judgment it would have enabled the defendants to realize a greater price on the subsequent sale of the property. The defendants misconstrue the nature of a strict foreclosure. A judgment of strict foreclosure vests absolute title in the foreclosing plaintiff, upon the failure of the other parties to redeem the property. When title becomes vested it is free and clear of all foreclosed interests and, therefore, the foreclosing plaintiff can sell the property completely for its own benefit. Any price received by the mortgagee is not subject to claims by parties whose interests had been foreclosed. Even if our statutes provided some sort of procedure for a nonforeclosing second mortgagee to seek a deficiency judgment within the same proceeding as the first mortgagee’s foreclosure action, the deficiency would always be the entire amount of the second mortgage debt where title had become absolute in the first mortgagee as in this case. Such a procedure would not result in a “deficiency judgment” in the sense the legislature contemplated in § 49-14. Further, the right to redeem the property or to move for a foreclosure by sale under § 49-24 both provide protection to a mortgagor or subsequent encumbrancer who believes the property has sufficient value to satisfy claims beyond that of the foreclosing plaintiff.

The defendants find the primary support for their position in the provision of § 49-14 that “any party to a mortgage foreclosure may file a motion seeking a deficiency judgment.” The defendant argues that in order to give meaning to the word “any,” the deficiency judgment procedure must be available to parties other than the foreclosing plaintiff. An examination into the history of the statute discloses the origin of the term “any party.” Prior to 1957, a foreclosing mortgagee could recover the difference between the value of the foreclosed property and the debt either by seeking a deficiency judgment in the same proceeding under what is now § 49-14 or by a separate action on the mortgage debt, note or obligation against anyone who had been made a party to the foreclosure action. General Statutes (1949 Rev.) § 7191; General Statutes (1902 Rev.) § 4124) Bugg v. Guilford-Chester Water Co., 141 Conn. 179, 182, 104 A.2d 543 (1954); Cronin v. GagerCrawford Co., 128 Conn. 688, 695, 25 A.2d 652 (1942); Atlas Realty Co. v. House, 120 Conn. 661, 670, 183 A. 9 (1936); Cion v. Schupak, 102 Conn. 644, 648, 129 A. 854 (1925); Acampora v. Warner, 91 Conn 586, 588, 101 A. 332 (1917). In this light, it is entirely logical that the legislature intended to afford to the mortgagor the right to trigger the deficiency judgment procedure. Because a mortgagor remained personally liable on the note, it might have been in his best interest to request a deficiency judgment in order conclusively to establish the extent of his liability. Without such a judgment, in a subsequent action on the debt, the debtor would be in the difficult position of having to establish the value at the time of the foreclosure judgment of land that might no longer be owned or controlled by the mortgagee. Allowing mortgagors to initiate deficiency judgment proceedings comports with the overall legislative policy of determining the rights of the parties in a single proceeding. To the extent that a nonforeclosing mortgagee or other junior encumbrancer may have an interest as a creditor of the mortgagor in determining his solvency, the legislature for similar reasons may have used the broad term “any party” to allow such creditors who had been joined as defendants to obtain a complete determination of the indebtedness of the mortgagor to the foreclosing mortgagee. It should be noted, however, that the provision that “any party to a mortgage foreclosure may file a motion seeking a deficiency judgment” merely provided an option for a parly to invoke the deficiency judgment procedure. (Emphasis added.)

In 1957 the General Assembly drastically changed the rights of a foreclosing mortgagee when it enacted Public Acts 1957, No. 443, presently § 49-1, under which a foreclosing mortgagee cannot, after the entry of judgment, maintain a separate action on the underlying debt, note or obligation against any person liable thereon except those upon whom personal service could not have been made at the commencement of the foreclosure action. This enactment, however, barred “any further action on the mortgage debt,” referring only to the mortgage being foreclosed, and thus did not affect the rights of subsequent encumbrancers to pursue their remedies. The prohibition of further action on the debt, mandating that the rights between the mortgage debtor and the foreclosing mortgagee be concluded in a single proceeding; 7 H.R. Proc., Pt. 4,1957 Sess., pp. 2374-76; rendered obsolete the less beneficial protection against an untimely determination of the amount of a deficiency judgment available to a mortgagor or subsequent encumbrancers under § 49-14 by initiating the deficiency judgment procedure during the foreclosure proceeding. The failure of the legislature to enact an amendment to § 49-14 restricting the option to request a deficiency judgment to the foreclosing mortgagee, in order to correspond with the 1957 ban of later actions upon the debt secured by the foreclosed mortgage, does not support the defendants’ position. Their contention that a nonforeclosing second mortgagee who does not seek a deficiency judgment forfeits the right to collect his mortgage debt would require that we construe the provision of § 49-14 that any party to a foreclosure “may” move for a deficiency judgment to be a mandatory condition precedent to a further action on the debt owed to a subsequent encumbrancer. Such a statutory interpretation is wholly unwarranted.

We conclude that the failure to resort to the deficiency judgment procedure detailed in § 49-14 makes the bar of § 49-1 upon a subsequent action on the mortgage debt applicable only to foreclosing plaintiffs. Accordingly, although the judgment of strict foreclosure eliminated any interest of First Bank in the mortgaged property, § 49-1 does not prevent its independent action on the underlying obligation.

There is no error.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 49-1. when foreclosure a bar to further action on DEBT. The foreclosure of a mortgage is a bar to any further action upon the mortgage debt, note or obligation against the person or persons who are liable for the payment thereof who are made parties to the foreclosure and also against any person or persons upon whom service of process to constitute an action in personam could have been made within this state at the commencement of the foreclosure; but the foreclosure is not a bar to any further action upon the mortgage debt, note or obligation as to any person liable for the payment thereof upon whom service of process to constitute an action in personam could not have been made within this state at the commencement of the foreclosure. The judgment in each such case shall state the names of all persons upon whom service of process has been made as herein provided."

       “[General Statutes] Sec. 49-14. deficiency judgment, (a) At any time within thirty days after the time limited for redemption has expired, any party to a mortgage foreclosure may file a motion seeking a deficiency judgment. Such motion shall be placed on the short calendar for an evidentiary hearing. Such hearing shall be held not less than fifteen days following the filing of the motion, except as the court may otherwise order. At such hearing the court shall hear the evidence, establish a valuation for the mortgaged property and shall render judgment for the plaintiff for the difference, if any, between such valuation and the plaintiff’s claim. The plaintiff in any further action upon the debt, note or obligation, shall recover only the amount of such judgment.
      “(b) Upon the motion of any party and for good cause shown, the court may refer such motion to a state referee, who shall have and exercise the powers of the court with respect to trial, judgment and appeal in such case.
      “(c) Any party to a mortgage foreclosure who has moved for an appraisal of property for the purpose of obtaining a deficiency judgment, but has not been granted a deficiency judgment, or has not received full satisfaction of any deficiency judgment obtained subsequent to the filing of such motion, may make a motion to the court for a deficiency judgment as set forth in subsection (a) of this section. If such motion is made on or before November 1, 1979, such moving party shall be deemed to have complied with all of the requirements of subsection (a) of this section and shall be entitled to the benefit of any deficiency judgment rendered pursuant to said subsection (a).
      “(d) Any appeal pending in the supreme court with regard to any deficiency judgment or proceedings relating thereto shall be stayed until a hearing is held pursuant to subsection (a) of this section. Any appellant in such an appeal shall have the right for a period of thirty days after the rendering of judgment pursuant to subsection (a) of this section to amend his appeal. There shall be no stay of such an appeal if no motion has been filed pursuant to this section on or before November 1, 1979.”

       General Statutes § 49-14 was amended in 1979 in order to comport with the due process principles enunciated in our decision in Society for Savings v. Chestnut Estates, Inc., 176 Conn. 563, 409 A.2d 1020 (1979). The prior version of the statute was declared unconstitutional because it did not afford the mortgage debtor the opportunity to participate in the determination of the value of the mortgaged property by presenting evidence. Id.

       Prior to 1833 the foreclosure of a mortgage operated as a bar to any subsequent action on the underlying promissory note. Swift v. Edson, 5 Conn. 532, 534-35 (1825). In 1833 the legislature removed the prohibition against further action on the mortgage debt, and allowed a mortgagee to institute a separate action to collect the difference between the amount owed and the value of the foreclosed property as determined by the court. Public Acts 1833, c. 18, §§ 1, 2. In 1878, the legislature conditioned the mortgagee’s right to pursue an independent action on the note upon making the person or persons liable on the note a party to the foreclosure. Public Acts 1878, c. 129, § 1. The statutory provision, which remained unchanged until 1957, provided: “The foreclosure of a mortgage shall be a bar to any further action upon the mortgage debt, note or obligation, unless the person or persons who are liable for the payment thereof are made parties to such foreclosure.” (Emphasis added.) General Statutes (1949 Rev.) § 7191.


author: Per Curiam.

text:
    State of Connecticut v. Ronald Avery
    (12738)
    Peters, C. J., Shea, Dannehy, Santaniello and Callahan, Js.
    Argued March 5
    decision released April 15, 1986

      Conrad Ost Seifert, special public defender, for the appellant (defendant).

      Irving L. Aronson, assistant state’s attorney, with whom, on the brief, was C. Robert Satti, state’s attorney, for the appellee (state).
   Per Curiam.

The sole issue in this appeal is whether the trial court erred in failing to hold an evidentiary hearing to inquire into a criminal defendant’s competency at the time of his guilty plea. The defendant, Ronald Avery, was charged with the crime of robbery in the first degree, in violation of General Statutes § 53a-134. During the process of jury selection, the defendant elected to withdraw his prior plea and to plead guilty to robbery. The court, after conducting a canvass pursuant to Practice Book § 711, accepted the plea of guilty. On the day set for sentencing, the defendant made an oral motion to withdraw his plea of guilty. The court denied this motion and sentenced the defendant to imprisonment for twenty years with execution suspended after ten years. The defendant appeals from the trial court’s denial of his motion to withdraw his guilty plea.

At the hearing before the court, Edelberg, J., on March 13, 1985, during which the defendant entered his guilty plea, the state offered the following factual basis for the plea. On the evening of October 3, 1984, the defendant and another man entered a Cumberland Farms store in Norwich. Each of the men was wearing a stocking mask and each displayed a knife. One of the men ordered the salesclerk to go to the cash register and to get the money it contained. The two men jointly removed money from the cash register, and then left. The victim immediately reported the crime to the Norwich police department.

Investigation by the police led them to arrest the defendant. On October 11,1984, while in custody, the defendant gave the police a statement corroborating the victim’s version of what had transpired at the Cumberland Farms store. The defendant’s pretrial motion to suppress this statement was denied, after a hearing, by the trial court, Hendel, J.

After these facts had been recited at the plea hearing, the trial court, Edelberg, J., conducted a plea canvass. During the canvass, the court advised the defendant, who was represented by an attorney, of his constitutional rights, of the factual basis of the state’s case against him, and of the maximum sentence that might be imposed. With reference to the plea arrangement, the court inquired whether the defendant had been coerced in any fashion, either by threats or promises, to which the defendant answered in the negative. The defendant also acknowledged that he had consulted with his attorney before he had entered his plea, and that he was satisfied with the advice that he had received from his attorney. The court thereupon found that the defendánt’s plea of guilty had been made “knowingly, intelligently, and voluntarily with full understanding of the crime charged, its possible penalties and consequences of such a plea and after adequate [advice] and assistance of counsel.” The court then continued the case for a presentence investigation.

On the day set for sentencing, the defendant appeared with his attorney. His attorney indicated his readiness to proceed, but the defendant himself interposed an oral motion to withdraw his guilty plea. He claimed that: “The day I plead [sic] guilty I wasn’t in my right state of mind.” The court inquired what proof he had to offer, and the defendant replied only: “I was intoxicated that day on drugs.” The court inquired further about whether the defendant had then been out on bond, and, upon ascertaining that he had not, denied his motion. The state, in addressing the matter of sentencing, reminded the court that in seeking to suppress his confession to the police, the defendant had alleged that he had then been intoxicated because of drugs, and that this claim had been fully explored and found unpersuasive at the suppression hearing before the court, Hendel, J. The state also indicated that, as part of the plea arrangement, it was entering a nolle on a companion file. When defense counsel thereafter addressed the court, he did not advert to drugs or intoxication. Nonetheless, the court itself reverted to that issue, asking the defendant what medical evidence he had that he had been under the influence of drugs at the time of the plea. The defendant replied that his evidence consisted of the “[p]eople that were with [him],” his fellow prisoners. The defendant volunteered no further information. Neither the defendant himself nor his attorney asked the court to hold an evidentiary hearing.

This case is governed by the reasoning of two recent opinions of this court, State v. Lloyd, 199 Conn. 359, 507 A.2d 992 (1986), and State v. Watson, 198 Conn. 598, 504 A.2d 497 (1986). In State v. Lloyd, the defendant sought to withdraw his guilty plea on an averment that he had been under the influence of drugs when he had entered his plea, while in State v. Watson, the defendant alleged that his plea had been impaired by his ingestion of prescription medicine, i.e., Elavil and Mellaril. These cases reiterate two well established principles of state and federal law: (1) a defendant’s competence to plead is a vital component of a valid plea of guilty; and (2) a motion to withdraw a guilty plea may require an evidentiary hearing to explore the issue of competence. See Drope v. Missouri, 420 U.S. 162, 171-75, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975); McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969); Pate v. Robinson, 383 U.S. 375, 385-86, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966); Sanders v. United States, 373 U.S. 1, 21, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963); Myers v. Manson, 192 Conn. 383, 389-91, 472 A.2d 759 (1984); State v. Lasher, 190 Conn. 259, 266, 460 A.2d 970 (1983); State v. Torres, 182 Conn. 176, 184-86, 438 A.2d 46 (1980). Of particular importance to this case is the holding in State v. Lloyd, supra, and in State v. Watson, supra, 612-14, that an essential predicate for an evidentiary hearing is the specific allegation of facts that are not “conclusory, vague or oblique.”

Measured by the tests enunciated in Lloyd and Watson, the defendant’s appeal cannot succeed. His allegations about his use of drugs on March 13,1985, the day he pleaded guilty, were entirely conclusory. When he sought to withdraw his plea, he did not inform the court what drugs he had taken, or in what amount, or how these drugs might have affected his capacity to understand and to participate in the plea hearing. He offered no credible corroboration to substantiate his use of drugs. We note, furthermore, that nothing in this record other than the defendant’s own statement lends factual support to his allegations. The crime that he was charged with having committed was not explicitly drug-related. The allegation that his confession had been drug-induced had been examined and rejected at the hearing to suppress the confession. Finally, the attorney who represented him at the plea, at the motion to withdraw the plea, and at his sentencing did not support his claim of drug-related impairment of competence. These evidentiary failings are not remedied by a belated offer, in the defendant’s appellate brief, to submit evidence that the defendant might well have had access to illicit drugs while he was incarcerated. In the light of these circumstances, the trial court did not err in denying the defendant’s motion to withdraw his guilty plea.

There is no error.

       “[General Statutes] Sec. 53a-134. robbery in the first degree: class b felony, (a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime: (1) Causes serious physical injury to any person who is not a participant in the crime; or (2) is armed with a deadly weapon; or (3) uses or threatens the use of a dangerous instrument; or (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged. Nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, robbery in the second degree, robbery in the third degree or any other crime.
      “(b) Robbery in the first degree is a class B felony provided any person found guilty under subdivision (2) of subsection (a) shall be sentenced to a term of imprisonment of which five years of the sentence imposed may not be suspended or reduced by the court.”

       We consider this appeal on the merits despite the state’s concession, in its brief, that the trial court had erred.

       The Practice Book provides for the withdrawal of guilty pleas under certain circumstances: “[Practice Book] Sec. 720. —WHEN ALLOWED
      “A defendant may withdraw his plea of guilty or nolo contendere as a matter of right until the plea has been accepted. After acceptance, the judicial authority shall allow the defendant to withdraw his plea upon proof of one of the grounds in Sec. 721. A defendant may not withdraw his plea after the conclusion of the proceeding at which the sentence was imposed.”
      “[Practice Book] Sec. 721. —grounds
      “The grounds for allowing the defendant to withdraw his plea of guilty after acceptance are as follows:
      “(1) The plea was accepted without substantial compliance with Sec. 711;
      “(2) The plea was involuntary, or it was entered without knowledge of the nature of the charge or without knowledge that the sentence actually imposed could be imposed;
      “(3) The sentence exceeds that specified in a plea agreement which had been previously accepted, or in a plea agreement on which the court had deferred its decision to accept or reject the agreement at the time the plea of guilty was entered;
      “(4) The plea resulted from the denial of effective assistance of counsel;
      “(5) There was no factual basis for the plea; or
      “(6) The plea either was not entered by a person authorized to act for a corporate defendant or was not subsequently ratified by a corporate defendant.”

       The defendant had been charged with both robbery in the first degree and attempted robbery. These charges were severed on March 12, 1985. Pursuant to the plea agreement, the state entered a nolle to the attempted robbery charge at the time of the defendant’s sentencing on the robbery charge.


text:
    State of Connecticut v. Jessie Garrison
    (12731)
    Peters, C. J., Healey, Dannehy, Santaniello and Callahan, Js.
    Argued March 6
    decision released April 15, 1986

      Stuart Friedman and Theodore Baldwin-LeClair, certified legal interns, with whom was Timothy H. Everett, for the appellant (defendant).

      Judith Rossi, deputy assistant state’s attorney, with whom were James G. Clark, deputy assistant state’s attorney, and, on the brief, Warren Maxwell, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The defendant, Jessie Garrison, was convicted, after a trial to the court, of manslaughter in the first degree with a firearm in violation of General Statutes §§ 53a-55 (a) (1) and 53a-55a (a). In his trial, the defendant relied on the defenses of self-defense under General Statutes § 53a-19 and defense-of-premises under General Statutes § 53a-20. The trial court rejected these defenses and found the defendant guilty as charged. In his appeal, the defendant raises three issues: the propriety of the standard applied by the court in its rejection of the defense of self-defense; the sufficiency of the evidence to support rejection of the defense of self-defense; and the sufficiency of the evidence to support the rejection of the defense of defense-of-premises.

The trial court’s judgment that the defendant was guilty of the crime with which he had been charged was supported by an oral memorandum of decision specifically addressing self-defense under § 53a-19 and a written memorandum of decision clarifying the court’s conclusion with respect to § 53a-20. In these two memoranda the court found the following facts. On the evening of January 2, 1982, the defendant was visiting at his sister’s apartment to watch her television. The decedent, Jeremiah Sharp, entered the apartment, obviously drunk, staggering and argumentative. The decedent and the defendant’s sister had been living together for a number of years but had recently quarreled, and the decedent had come to remove his belongings from the apartment. The decedent and the defendant’s sister engaged in a heated argument which the defendant endeavored to stop. There followed a confrontation between the defendant and the decedent about the decedent’s continued presence on the premises. The defendant observed the decedent reaching inside his jacket and noticed a pistol in the decedent’s waistband. Although the defendant was smaller than the decedent, he was younger, alert and sober, and he succeeded in disarming the decedent as the latter was drawing the pistol from his belt. The decedent then armed himself with a steak knife and advanced toward the defendant with the knife raised. The defendant backed up, and fired a shot hitting the decedent in the left ankle. The defendant then fired a second shot causing the fatal injury.

The trial court, in its oral memorandum of decision, concluded that this evidence sufficiently raised the defense of self-defense under § 53a-19 to impose upon the state the burden of proving beyond a reasonable doubt that the defense was unavailing. It specifically found that the decedent’s effort to attack the defendant would cause a reasonable person to believe that the attacker was about to slash him, and that such a slashing could constitute great bodily harm. The court concluded nonetheless that the state had met its burden of proof because “the defendant, having had the ability to disarm [the decedent] of the revolver could easily have disarmed him, or could have retreated, and avoided him at the time when he was wielding the steak knife.” The court made no subordinate findings of fact to substantiate this conclusion.

Upon the motion of the defendant, the trial court filed a written memorandum of decision to clarify its conclusion with regard to self-defense under § 53a-20. Insofar as it is relevant to this case, § 53a-20 justifies the use of deadly physical force when a person privileged to be upon the premises, reasonably believing that force is necessary “to prevent or terminate the commission or attempted commission of a criminal trespass,” uses deadly physical force “(1) in defense of a person as prescribed in section 53a-19, or (2) when he reasonably believes it is necessary to prevent an attempt by the trespasser to commit . . . any act of violence . . . Without determining whether the decedent’s presence in the apartment of the defendant’s sister constituted a criminal trespass, the court found that neither of the relevant subordinate conditions authorizing deadly physical force had been demonstrated. Consistently with the conclusion it had earlier reached in its oral memorandum, the court reiterated that the defendant’s use of deadly physical force was not “in defense of a person [as] described in Sec. 53a-19” because “it was established beyond a reasonable doubt that the decedent in his condition was not capable of using deadly force once he was disarmed.” The court further concluded that there was no credible evidence that the defendant “reasonably believed [such force] necessary to prevent the decedent from committing a crime of violence.” The court made no further findings of fact with reference to these conclusions.

The parties are in substantial agreement that the statutes that codify the rights of self-defense and defense-of-premises focus on the perspective of the person claiming these defenses. The self-defense statute, in § 53a-19 (a), permits the use of deadly physical force only when “the actor reasonably believes that [his attacker] is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.” As we have repeatedly noted, this language presents a question of fact about what the defendant himself reasonably believed about his exposure to jeopardy under the circumstances. State v. DeJesus, 194 Conn. 376, 389, 481 A.2d 1277 (1984); State v. Corchado, 188 Conn. 653, 663, 453 A.2d 427 (1982). Similar language in § 53a-19 (b) requires recourse to retreat in lieu of the use of physical force only when the actor himself “knows that he can avoid the necessity of using such force with complete safety . . . .” The defense-of-premises statute, § 53a-20, since it refers to what “he reasonably believes,” likewise refers to the perception of the person alleged to have been using deadly physical force.

The defendant claims, however, that the factual findings of the trial court do not justify its judgment because the court’s findings do not address the evidence at trial from his perspective. The trial court rejected the defense of self-defense despite its finding that the decedent, armed with his steak knife, approached the defendant in a manner “which would cause a reasonable person to believe that he was about to slash him.” Although there was conflicting evidence at trial about such critical matters as the location of the combatants at the time of their confrontation, the defendant’s own perception of his peril, and the defendant’s efforts to avoid the use of deadly physical force, the court failed to make any factual findings to identify what led it to conclude that the defendant himself reasonably believed that he could safely disarm the decedent or retreat. The trial court concluded that the defense-of-premises defense had been refuted without finding whether the decedent was a criminal trespasser or whether the defendant was privileged to be on the premises. On this state of the record, we cannot determine whether the state has established, beyond a reasonable doubt, the defendant’s guilt of the crime of manslaughter. For the proper disposition of this case, it is necessary for us to order a remand to the trial court for further articulation of the grounds on which it determined that the state had proved the inapplicability of the defenses of self-defense and defense-of-premises. See Practice Book § 3060D; State v. Cobbs, 198 Conn. 638, 643, 504 A.2d 513 (1986); State v. Lafferty, 189 Conn. 360, 363, 456 A.2d 272 (1983); Kaplan v. Kaplan, 185 Conn. 42, 46, 440 A.2d 252 (1981); State v. Ostroski, 184 Conn. 455, 460-61, 440 A.2d 166 (1981), cert. denied, 459 U.S. 878, 103 S. Ct. 173, 74 L. Ed. 2d 142 (1982). The trial court is directed to file a supplemental memorandum of decision answering the following questions and articulating the factual basis for its answers: (1) Was the defendant’s use of force excessive because he reasonably believed that he could have disarmed the decedent? (2) Was the defendant’s use of force excessive because he knew that he could retreat with complete safety? (3) Was the decedent on the premises as a criminal trespasser? (4) Was the defendant a person privileged to be in or upon the premises?

The case is remanded to the trial court with direction to file a memorandum of decision in accordance ■with this opinion.

       “[General Statutes] Sec. 53a-55. manslaughter in the first degree: class B felony, (a) A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person.”
      “[General Statutes] Sec. 53a-55a. manslaughter in the first degree WITH A FIREARM: CLASS B FELONY: ONE YEAR NOT SUSPENDABLE. (a) A person is guilty of manslaughter in the first degree with a firearm when he commits manslaughter in the first degree as provided in section 53a-55, and in the commission of such offense he uses, or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a pistol, revolver, shotgun, machine gun, rifle or other firearm. No person shall be found guilty of manslaughter in the first degree and manslaughter in the first degree with a firearm upon the same transaction but such person may be charged and prosecuted for both such offenses upon the same information.”

       General Statutes § 53a-19 provides in relevant part: “Sec. 53a-19. use of PHYSICAL FORCE in DEFENSE OF PERSON, (a) Except as provided in subsections (b) and (c) a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.
      “(b) Notwithstanding the provisions of subsection (a), a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling, as defined in section 53a-100, or place of work and was not the initial aggressor, or if he is a peace officer or a private person assisting such peace officer at his direction, and acting pursuant to section 53a-22, or (2) by surrendering possession of property to a person asserting a claim of right thereto, or (3) by complying with a demand that he abstain from performing an act which he is not obliged to perform.”

       “[General Statutes] Sec. 53a-20. use of physical force in defense of premises. A person in possession or control of premises, or a person who is licensed or privileged to be in or upon such premises, is justified in using reasonable physical force upon another person when and to the extent that he reasonably believes it is necessary to prevent or terminate the commission or attempted commission of a criminal trespass by such other person in or upon such premises; but he may use deadly physical force under such circumstances only (1) in defense of a person as described in section 53a-19, or (2) when he reasonably believes it is necessary to prevent an attempt by the trespasser to commit arson or any crime of violence, or (3) to the extent that he reasonably believes it necessary to prevent or terminate an unlawful entry by force into his dwelling as defined in section 53a-100 or place of work, and for the sole purpose of such prevention or termination.”

       “[Practice Book] § 3060D. review by the supreme court
      “The supreme court may reverse or modify the decision of the trial court if it determines that the decision is clearly erroneous in view of the evidence and pleadings in the whole record.
      “If the supreme court deems it necessary to the proper disposition of the cause, it may remand the case for a further articulation of the basis of the trial court’s decision.
      “It is the responsibility of the appellant to provide an adequate record for review.”


author: Callahan, J.

text:
    State of Connecticut v. Kelly Moye
    (11690)
    Shea, Dannehy, Santaniello, Callahan and F. Freedman, Js.

      Argued December 13, 1985
    decision released April 15, 1986

      Edward J. Peters, Jr., with whom was Anthony C. Polvino, for the appellant (defendant).

      Elizabeth B. Leete, special assistant state’s attorney, with whom, on the brief, were Arnold Markle, state’s attorney, and Mary Galvin, assistant state’s attorney, for the appejjee (state).
   Callahan, J.

After a trial to a jury, the defendant Kelly Moye was convicted of arson in the second degree in violation of General Statutes (Rev. to 1981) § 53a-112 (a), and of conspiracy to commit arson in the second degree in violation of General Statutes § 53a-48 (a). He was sentenced by the court to serve concurrent terms of imprisonment for a total effective sentence of not less than two and one-half years nor more than five years. He was also ordered to pay a fine of $1000. From this judgment the defendant appeals, claiming that the trial court erred: (1) in allowing a statement which was only “witnessed” by the defendant to be admitted into evidence as an adoptive admission; (2) in denying the defendant’s motion for mistrial; and (3) in denying the defendant’s motion for acquittal. We find no error.

From the evidence presented at trial, the jury could reasonably have found the following facts: On November 8,1980, a waitress at the Dutchess Diner in West Haven saw the defendant and James Baker, who were off-duty New Haven police officers, enter the diner at 1:40 a.m. When she brought them part of their order, the defendant left through the front door. He returned in three to five minutes, and both men left the diner between 1:50 a.m. and 2 a.m. Four young adults, Mary Ellen Reinwald, Marc Ierardi, Terri Steeves and James Kiaunis, were also in the diner that morning until shortly before 2 a.m. When the four left, they paused on the street outside. At that time, Reinwald noticed the defendant and Baker standing and talking in the parking lot by a car which had the door on the driver’s side open. In the same row of the parking lot there was another car approximately one space away. Baker then walked to the diner and spoke to someone inside. At that point, the defendant called out, “Is everything okay?” Baker replied in the affirmative. The defendant, who was standing behind the car door, then moved one arm downward toward the open car. That movement was followed by a flash and smoke emanating from the car. The flash was in the middle of the windshield near the rear view mirror. Reinwald yelled to Ierardi, who was standing beside her, “There is a man in the back of the parking lot that just lit a car on fire.” Ierardi and Kiaunis ran toward the car but the defendant displayed a police badge and told them that “it was a fuse fire, and that he would take care of it” and not to worry about it. Reinwald ran to her aunt’s house, which was only six houses away, and her aunt called the police. Kiaunis and Ierardi attempted to put out the fire despite the defendant’s protests. As they did so, Kiaunis saw a burning object fall from the area of the rear view mirror. It sparked when it fell and Kiaunis then noticed a bottle on the floor. The bottle, which was later recovered, was half full of gasoline. As Kiaunis and Ierardi tried to put out the fire, the flames seemed to get larger and Ierardi, fearing that the car would explode and endanger both himself and Kiaunis, kicked the door shut. Neither Baker nor the defendant appeared to do anything to put out the fire.

The intervention of Kiaunis and Ierardi led to a conflict with the defendant and Baker, which resulted in blows and obscenities being exchanged. Shortly afterward, the police and fire department arrived. Baker and the defendant identified themselves as police officers and made a complaint, which resulted in the arrest of Kiaunis and Ierardi. Fire Marshall Charles E. Raubeson examined the car and concluded that the fire had been intentionally set. Later that same morning the defendant and Baker went to West Haven police headquarters to make a statement in connection with the arrests of Kiaunis and Ierardi. Both men told Officer Albert R. Lindblom of the West Haven police department their version of the incident and he wrote it down in statement form. Baker and the defendant both signed the statement.

I

The defendant’s first claim is that the trial court erred in permitting the statement, which he contends was signed by Baker and only “witnessed” by him, to be introduced into evidence in violation of his right to confront his accusers. The trial court found that the statement was admissible at the defendant’s trial because the defendant had adopted it as his own. The trial court, when ruling on the admissibility of the evidence, stated: “It really is immaterial as to where on the paper the signatures appear, since the testimony of the officer is that both men fully adopted the statement as theirs, their own, and then signed at the bottom. Even if they hadn’t signed, I think the statement could come in. He has adopted it, according to the testimony here, and I am going to allow it.” We agree with the trial court.

“When a party’s conduct indicates that the party assents to or adopts a statement made by another person, the statement is admissible against the party.” Tait & LaPlante, Handbook of Connecticut Evidence (1976) § 11.5 (d) (6). “ ‘Where hearsay accusations are sought to be introduced as evidence against a defendant in a criminal proceeding on grounds that the hearsay was “adopted” by the defendant . . . the trial court must first determine that the asserted adoptive admission be manifested by conduct or statements which are unequivocal, positive, and definite in nature, clearly showing that in fact defendant intended to adopt the hearsay statements as his own.’ (Emphasis in original.) State Village of New Hope v. Duplessie, 304 Minn. 417, 425, 231 N.W.2d 548 (1975).” State v. Morrill, 197 Conn. 507, 537, 498 A.2d 76 (1985).

Officer Lindblom testified that Baker and the defendant came to police headquarters, at his request, to make a statement concerning the arrest of Kiaunis and Ierardi. He testified further that, “I wrote out the statement myself as Baker told me the story. Baker and Moye both were relating the story as I was writing. . . . I asked both of them to read it, to make sure that this was what they told me. They both read it, and they both signed it.” The defendant verbally indicated to Lindblom that he agreed with it. In the introductory part of the statement the name of James Baker appeared, and, at the bottom of the statement, it said, “Signed by James Baker.” Where the defendant signed the statement, the print on the form indicated that he was signing as a witness. Lindblom testified that the defendant’s signature appeared on the statement because “[h]e agreed with it, and like I said, he gave me some of the words to put into it.” He also testified that “[m]ore or less this is a joint statement. They both contributed to what was put into the statement.” “I asked them both, before they signed it, to read it and make sure that everything that they wanted in there was in there before they signed it, and that was the condition that they signed it.”

The facts clearly support the trial court’s determination that the defendant intended to adopt, as his own, the statement made at West Haven police headquarters and the trial court properly admitted it into evidence as an adoptive admission.

II

The defendant’s second claim is that the trial court erred in denying his motion for a mistrial. The initial basis for his claim is a remark made by the trial court when it overruled an objection to the admission of evidence offered by the state. In giving a reason for its ruling, the trial court said, “There is a charge of conspiracy here, counsel. The conspiracy has been established at least on a prima facie basis, at least in the opinion of this Court, and that permits this to come in . . . . ” There is no claim on appeal that the evidentiary ruling was incorrect. The defendant does claim, however, that it was improper for the trial court to rule upon the defendant’s objection in the manner it did, in the presence of the jury, and that it denied him a fair trial.

The defendant did not make contemporaneous motions for a mistrial, to strike the remark or for a curative instruction. It was not until about forty-five minutes later in the trial, after another witness had testified, that the defendant made a motion for a mistrial based on the remark of the trial court. The trial court denied the defendant’s motion but offered to include a curative instruction in its charge and invited the defendant to submit one. He did not do so. Further, the defendant did not take an exception to that portion of the charge which contained the trial court’s curative instruction.

“ ‘The trial court has a wide discretion in passing on motions for mistrial.’ State v. Savage, 161 Conn. 445, 449, 290 A.2d 221 [1971].” State v. Brown, 169 Conn. 692, 703, 364 A.2d 186 (1975). “ ‘The general principle is that a mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial.’ State v. Turcio, 178 Conn. 116, 143, 422 A.2d 749 (1979).” State v. Gooch, 186 Conn. 17, 25, 438 A.2d 867 (1982). The narrow issue on appeal is whether the trial court abused its discretion. State v. Voss, 191 Conn. 604, 613, 469 A.2d 767 (1983). “[W]e have consistently recognized that a careful, cautionary instruction given by the trial court is a relevant factor to be considered in determining whether the denial of such a motion constituted an abuse of the trial court’s broad discretion. See State v. Ruiz, 171 Conn. 264, 274, 368 A.2d 222 [1976]; State v. Savage, supra, 448-49; State v. Miller, 154 Conn. 622, 631, 228 A.2d 136 [1967].” State v. Piskorski, 177 Conn. 677, 720, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979).

Even if we assume that the articulation of a correct ruling on evidence can be ground for a mistrial, to determine on appeal that it was error to deny the defendant’s motion, would, under the circumstances, amount to an ambush of the trial judge. The court gave a curative instruction couched in general terms to avoid undue emphasis on its remark. The defendant, aware that this was the course to be followed, neither submitted a request to charge nor took exception to the court’s charge on this point. He cannot now be heard to complain that the trial court failed to cure any prejudice caused by its remark. See State v. Ferraro, 164 Conn. 103, 109, 318 A.2d 80 (1972).

Further, the charge made it clear that the jury during its deliberations was not to consider the action of the trial court in ruling on the admissibility of evidence, that it should consider only the evidence admitted and that proof beyond a reasonable doubt, not prima facie evidence, was required to find the defendant guilty. The jury is presumed, in the absence of an indication to the contrary, to have followed the instructions of the trial court. State v. Bausman, 162 Conn. 308, 314, 294 A.2d 312 (1972). Also there was ample evidence of a conspiracy. The defendant was not deprived of a fair trial by the trial court’s ruling and the denial of his motion for a mistrial did not constitute an abuse of discretion.

The defendant additionally asserts that his motion for a mistrial should have been granted because the trial court erroneously led the jury to believe that the defense had conceded that the fire was incendiary in origin. The defendant failed to raise this claim when he moved for a mistrial. The sole discernible basis for his motion for a mistrial was the trial court’s remark, previously discussed, concerning a prima facie case being made with respect to conspiracy. The defendant claims, however, he is entitled to review of this additional issue because it deprived him of a fair trial.

During the course of the trial, a question by defense counsel on cross-examination prompted the trial court to ask, “Are you saying there was some kind of spontaneous fire here? I thought a little while ago you admitted it was an incendiary fire, with the last witness.” Defense counsel responded, “I am not claiming anything.” He voiced no objection nor did he address any motion to the court’s query.

We will not consider claimed errors on the part of the trial court unless the question was distinctly raised at trial and was ruled upon and decided by the trial court adversely to the appellant’s claim. Practice Book § 3063; State v. Evans, 165 Conn. 61, 67, 327 A.2d 576 (1973). We will depart from that practice in this case only if the record adequately supports a claim that the defendant has clearly been deprived of a fundamental constitutional right and a fair trial. State v. Evans, supra, 70.

It appears from the record that the origin of the fire was not seriously contested at trial. Without objection and without exception, the trial court, in its charge at the conclusion of the evidence, instructed the jury that there were “certain facts that were admitted or at least not contested,” one of which was “that the fire causing damage was incendiary in origin.” Since the issue of the origin of the fire was not a contested issue, it is difficult to understand how the court’s inquiry deprived the defendant of a fair trial. Accordingly, it is unnecessary to review further this portion of the defendant’s claim.

III

The defendant’s final claim is that the court erred in denying his motion for judgment of acquittal. The defendant argues that insufficient evidence was presented to allow a conclusion that the defendant’s act subjected “another person to substantial risk of bodily injury or another building to substantial risk of destruction or damage” which is an element of the crime of arson in the second degree. The state must prove each element of the crime beyond a reasonable doubt. “[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). The defendant admits that the jury could reasonably have found from the evidence that the other elements of arson in the second degree were proven beyond a reasonable doubt. The record discloses that there was also sufficient evidence to allow the jury to find, proven beyond a reasonable doubt, that the fire started by the defendant subjected “another person to a substantial risk of bodily injury or another building to substantial risk of destruction or damage.” General Statutes (Rev. to 1981) § 53a-112. An automobile is included in the definition of a “building” for the purposes of General Statutes § 53a-112. State v. Baker, 195 Conn. 598, 603, 489 A.2d 1041 (1985). Fire Marshall Raubeson testified that opening the car door would let in oxygen, which would generate gasoline vapors, which would ignite and cause a burst of flames. If the fire had continued to burn, a second explosion might have resulted. This explosion could have damaged another car which was parked only one space away and could have injured Kiaunis, who was attempting to put out the fire.

“Liability is not predicated on how far the fire spreads before being extinguished; the statute looks only to the moment the fire was set to determine the criminality of the act.” State v. Parmalee, 197 Conn. 158, 162, 496 A.2d 186 (1985). “Thus, even though the fire was put out before it could reach its full potential and ultimately posed no actual danger to surrounding buildings [or persons], the act of setting the fire placed [persons and] another building at ‘substantial risk’ within the meaning of § 53a-112.” Id. The jury could certainly have reasonably concluded from the evidence before them that the fire posed a substantial risk of bodily injury to another person or damage to another vehicle. The trial court did not err in denying the defendant’s motion for acquittal.

There is no error.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1981) § 53a-112 (a) provides: “ARSON IN THE second degree: class b felony, (a) A person is guilty of arson in the second degree when he starts a fire or causes an explosion: (1) With intent to destroy or damage a building, as defined in section 53a-100, (A) of another, or (B) whether his own or another’s, to collect insurance for such loss; and (2) such act subjects another person to substantial risk of bodily injury or another building to a substantial risk of destruction or damage.”

       General Statutes § 53a-48 (a) provides: “conspiracy, renunciation. (a) A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”