text:
    State of Connecticut v. Kenneth F. Ireland, Jr.
    (13900)
    Peters, C. J., Covello, Hull, Borden and Santaniello, Js.
    Argued February 19
    decision released April 30, 1991

      Susan M. Hankins, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (defendant).

      Judith Rossi, assistant state’s attorney, with whom, on the brief, was Michael Dearington, state’s attorney, for the appellee (state).
   Covello, J.

This is the defendant’s appeal from his conviction of one count of felony murder in violation of General Statutes § 53a-54c, one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a), and one count of burglary in the third degree in violation of General Statutes § 53a-103 (a). The issues on appeal are whether the trial court: (1) unduly restricted the cross-examination of the state’s primary witnesses; (2) improperly restricted the direct examination of the defendant’s primary witness thereby limiting the defendant’s right to present evidence; (3) improperly assumed the role of an advocate in issuing a cautionary instruction to the jury; (4) improperly failed to strike the testimony of Lisa Cozikowski; and (5) improperly instructed the jury as to the state’s burden of proof.

The jury might reasonably have found the following facts. On September 2, 1986, the victim was working alone on the 10:30 p.m. to 6:30 a.m. shift at her place of employment. Around 6:30 a.m. on September 3, a coworker found her dead, lying face down in an office, the victim of a massive blow to the head. In September, 1987, John Card and Marilu Flaler gave statements to the police that included unpublished details of the crime and implicated the defendant, Kenneth F. Ireland, Jr., Lee Magoon, and a third person known only as “Moe.” In their statements, Card and Flaler claimed that the defendant and Magoon had made incriminating remarks indicating their involvement in the crime during a conversation that occurred in the home shared by Card and Flaler on a Sunday afternoon shortly after the victim’s death.

The defendant was tried before a jury on November 27, 1989, which returned a verdict of guilty on all counts. On January 12,1990, the trial court sentenced the defendant to three terms of imprisonment: fifty years for felony murder; twenty years for first degree sexual assault; and five years for third degree burglary. The sentences were to run concurrently for a total effective sentence of fifty years.

I

The defendant first claims that the trial court improperly restricted his cross-examination of Card and Flaler, the state’s primary witnesses, in violation of his rights under the fifth, sixth and fourteenth amendments to the federal constitution, and article first, § 8 of the Connecticut constitution. The defendant claims that court-imposed limitations on his cross-examination of these crucial witnesses prevented him from proving the couple’s motive for incriminating the defendant, all in violation of his constitutionally protected right to confront the witnesses against him.

The defendant’s theory of the case was that Card and Flaler lied in an effort to protect Edmond Card, John Card’s brother, either because they believed that he was a suspect in the case or because he actually was involved in the murder. The defendant further theorized that the source of John Card and Flaler’s detailed information concerning the crime was not Magoon, but Edmond Card. In his cross-examination of John Card, the defendant’s attorney sought to establish that, at the time he gave incriminating evidence to the police, Card was aware that his brother was a suspect in the case. The state objected and out of the presence of the jury, Card denied knowing that his brother was a suspect. The trial court then sustained the state’s objection to this question being asked in the presence of the jury. It is this ruling that the defendant claims constituted the first impermissible limitation upon his right to confront the witnesses against him. We disagree.

“A defendant may give evidence concerning a third party’s involvement with the crime, as long as there is some evidence which directly connects the third party with the crime.” Siemon v. Stoughton, 184 Conn. 547, 555, 440 A.2d 210 (1981). “[I]t is within the sound discretion of the trial court to refuse to admit such evidence when it simply affords a possible ground of possible suspicion against another person.” State v. Giguere, 184 Conn. 400, 405, 439 A.2d 1040 (1981). Implicit in the attack on John Card’s alleged motive for implicating the defendant is the inference that Edmond Card was in fact involved in the crime. The defendant’s claim that Edmond Card was a suspect, or that John Card thought so, was never removed from the realm of counsel’s speculation, however, by the introduction of competent evidence or an offer of proof. To the contrary, a police detective testified, without contradiction, that Edmond Card was not a suspect at the time John Card provided his statement to the police. Furthermore, John Card testified that he was unaware that his brother was a suspect at that time. There was no other evidence brought to the trial court’s attention that remotely suggested that Edmond Card was involved in the murder or that John Card thought that was the case. Because there was no offer of proof to connect Edmond Card with the murder, or that John Card thought so, the trial court’s ruling was correct.

During cross-examination, Flaler acknowledged that she had given the police a statement in which she claimed that Magoon had talked to Edmond Card about the crime. The defendant’s counsel attempted to question Flaler as to the substance of the alleged conversation between Edmond Card and Magoon. The state objected to the line of questioning as being beyond the scope of direct examination. The trial court sustained the state’s objections. It is this ruling that forms the basis for the second part of the defendant’s claim that his right to cross-examine the state’s witnesses was impermissibly limited.

“It is well settled that our rule restricts cross-examination to matters covered in the direct examination, except as they involve credibility alone. State v. Zdanis, 173 Conn. 189, 195, 377 A.2d 275 (1977) .... Restrictions on the scope of cross-examination are within the sound discretion of the trial court.” State v. Sharpe, 195 Conn. 651, 657, 491 A.2d 345 (1985). A review of the transcript reveals that the subject matter of the questions on cross-examination did indeed exceed the scope of the direct examination of Flaler. Furthermore, what Magoon may have told Edmond Card was, at best, remote to this witness and, as the trial court pointed out, was more properly the subject of questions to be directed to Edmond Card who, in fact, did testify.

“The trial court has broad discretion to determine both the relevancy and remoteness of evidence. . . . Only upon a showing of a clear abuse of discretion will this court set aside on appeal rulings on evidentiary matters.” Dunham v. Dunham, 204 Conn. 303, 324, 528 A.2d 1123 (1987). Further, any statement by Flaler as to what Magoon told Edmond Card would have involved two levels of hearsay, i.e., what Magoon told Card and then what Card thereafter told Flaler. While the statements made by Magoon would likely have qualified as statements against penal interest and, therefore, arguably would have been within an exception to the rule against hearsay, defendant’s counsel offered no hearsay exception or nonhearsay use for the statement from Edmond Card to Flaler.

II

The defendant next claims that the trial court’s decision to limit his direct examination of Edmond Card restricted his right “ ‘to present a defense ... to the jury so that it may decide where the truth lies.’ ” State v. Kelly, 208 Conn. 365, 375, 545 A.2d 1048 (1988), quoting Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967).

The defendant called Edmond Card as a defense witness. The state then filed a motion in limine seeking to preclude Edmond Card’s impeachment through use of two inconsistent statements that he had earlier given to the Wallingford police. In the first statement, given on September 4, 1987, Edmond Card claimed that Magoon had told him that he (Magoon), the defendant and a third person raped and murdered the victim. After a polygraph test indicated that the first statement was untrue, Edmond Card gave a second statement on September 9,1987, in which he disavowed the earlier statement and stated that Magoon had not said anything about the crime. He also stated that he had been with Magoon and the defendant on the night of the murder. Defense counsel claimed that proof of the two inconsistent statements bore on the issue of John Card’s and Flaler’s motives for testifying against the defendant, i.e., that they thought that Edmond Card was a suspect in the murder. The trial court granted the motion in limine in part and precluded the introduction of the two written statements as they were irrelevant to the issue of whether John Card and Flaler had motives for testifying. The trial court did, however, allow the defendant to question Edmond Card as to his whereabouts on the night of the murder and his relationship with Magoon and others. Edmond Card also testified that he gave two statements to the police and that there were inconsistencies between his first and second statements.

The defendant now argues that Edmond Card’s inconsistent statements should have been introduced as evidence of his consciousness of guilt as well as a basis for John Card’s and Flaler’s motivation for testifying. Consciousness of guilt was never advanced to the trial court as a reason for admitting the contradictory statements. It is fundamental that “counsel had the duty to state to the court the proper grounds for the admission of this evidence; Practice Book §§ 288, [4065 (d) (3)]; Acampora v. Ledewitz, 159 Conn. 377, 381, 269 A.2d 288 (1970). . . .” State v. Burns, 194 Conn. 469, 476, 481 A.2d 1077 (1984). Having failed to do so, a challenge to the trial court’s ruling based upon its failure to consider that reason, cannot be sustained. Acampora v. Ledewitz, supra.

“A trial judge may properly exclude questions, the relevancy of which appears to be slight and inconsequential and which would distract the jury from the main issues in the case.” State v. Moye, 214 Conn. 89, 96, 570 A.2d 209 (1990). The trial court found, and an examination of the transcript reveals, that none of Edmond Card’s statements in any way indicated that he was involved in the crime. In fact, his first statement to the police implicated the defendant, not himself. Since neither of the statements implicated Edmond Card, there was no possible linkage between Flaler’s and John Card’s motives for testifying. The trial court, therefore, correctly ruled that the statements were irrelevant.

Ill

The defendant next claims that the trial court’s comments to the jury had the effect of denying him his due process right to a fair trial. Following the November 15, 1989 proceedings, a juror overheard John Card tell Flaler that she had been “brilliant on the stand.” The juror communicated this remark to others on the jury. The defendant moved for a mistrial. The trial court denied the motion. Pointing out that John Card had not been present during Flaler’s testimony, the trial court instructed the jury “to ignore what was said and just remove it completely from your mind. ... I specifically instruct you to disregard the comment completely.” The defendant now claims that these remarks impermissibly supported John Card’s and Flaler’s integrity, bolstered their credibility and cast the trial court in the role of an advocate for the state’s position. Other than the bald assertion that this was the case, the defendant offers no reason, and we are unable to discern one, as to why a cautionary instruction to disregard a remark made by a witness somehow bolstered the credibility of that witness in the eyes of the jury and placed the trial court in the impermissible role of an advocate. This claim is without merit.

IV

The defendant next claims that the trial court improperly allowed the testimony of Lisa Cozikowski to stand. The defendant argues that Cozikowski’s testimony was unreliable, irrelevant and highly prejudicial and should have been excluded because it did not tend “to establish the existence of a material fact or to corroborate other direct evidence in the case.” State v. Sharpe, 195 Conn. 651, 659, 491 A.2d 345 (1985). Cozikowski testified that, approximately eighteen months after the murder, the defendant stated “Yeah, I did rape her” and “I killed her too.” Cozikowski testified that she was drunk at the time and may have imagined the statements. She testified further that she was unsure if the defendant was awake when he made the statements. The defendant moved to stike the testimony as being irrelevant. The trial court denied the motion.

“The trial court has broad discretion in determining the relevancy of evidence.” State v. Alvarez, 216 Conn. 301, 309, 579 A.2d 515 (1990). “Evidence is admissible if it has ‘ “a reasonable tendency to prove or disprove a material fact in issue or shed some light upon some material inquiry. Note, 73 A.L.R.2d 769, 787.” State v. DeJesus, [194 Conn. 376, 381, 481 A.2d 1068 (1984)].’ State v. Doehrer, 200 Conn. 642, 649, 513 A.2d 58 (1986). There is no requirement that potentially inflammatory evidence be absolutely essential to the state’s case and otherwise unobtainable in order that it be admissible; rather, ‘ “the test for determining the admissibility of challenged evidence is relevancy and not necessity. State v. Piskorski, 177 Conn. 677, 701, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979).” State v. Haskins, 188 Conn. 432, 453, 450 A.2d 828 (1982) [cert. denied, 479 U.S. 1084, 107 S. Ct. 1285, 94 L. Ed. 2d 143 (1987)].’ State v. Doehrer, supra, 649.” State v. King, 216 Conn. 585, 603, 583 A.2d 896 (1990). We have never held that evidence is irrelevant simply because, standing on its own, it is insufficient to prove or disprove guilt. “Evidence is not rendered inadmissible simply because it is not conclusive. It is admissible if it tends to support a relevant fact even in a slight degree . . . .” State v. Morrill, 197 Conn. 507, 548, 498 A.2d 76 (1985).

The defendant was on trial for a murder and sexual assault. The statements Cozikowski allegedly overheard described the defendant’s involvement in such acts. The trial court therefore reasonably could have concluded that the statements “Yeah, I did rape her” and “I killed her too” allegedly made by the defendant had a “tendency to prove ... a material fact in issue or shed some light upon” the defendant’s guilt or innocence. The trial court was therefore well within its discretion in determining that the evidence was relevant and that its probative value outweighed any prejudicial effect. The defendant’s concerns as to the intoxication of the witness and the general circumstances in which the statements were made go to the weight of the evidence and not its admissibility. State v. Morrill, supra, 548-49. In this regard, the trial court properly gave a thorough instruction to the jury regarding the weight of evidence and the credibility of witnesses which instruction was not challenged by the defendant.

Y

The defendant’s final claim is that the trial court’s instructions on reasonable doubt unconstitutionally diluted the state’s burden of proof. The trial court instructed the jury: “If, however, there is something in the evidence or lack of evidence which leaves in the minds of the jurors as reasonable men and women a reasonable doubt of the guilt of the accused as to any of these charges, a doubt for which if necessary you can give an explanation of to your fellow jurors in the jury deliberation room, then the defendant must be given the benefit of the doubt and found not guilty.”

We recently addressed a jury instruction claim similar to this one in State v. Johnson, 214 Conn. 161, 571 A.2d 79 (1990), and State v. Smith, 210 Conn. 132, 554 A.2d 713 (1989). In Johnson and Smith, “we disapproved of the instruction here at issue, but concluded that, according to federal precedent, it does not ‘constitute reversible error, let alone constitutional error in an otherwise adequate charge upon reasonable doubt.’ ” State v. Johnson, supra, 179, quoting State v. Smith, supra, 150. Since the instruction is not constitutionally defective, and since any other alleged error was not preserved at trial, we conclude that this claim must fail.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 53a-54c provides: “felony murder. A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping, sexual assault in the first degree, sexual assault in the first degree with a firearm, sexual assault in the third degree, sexual assault in the third degree with a firearm, escape in the first degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants, except that in any prosecution under this section, in which the defendant was not the only participant in the underlying crime, it shall be an affirmative defense that the defendant: (A) Did not conimit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (B) was not armed with a deadly weapon, or any dangerous instrument; and (C) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and (D) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.”
      General Statutes § 53a-70 (a) provides: “sexual assault in the first degree: class b felony: one year not suspendable. (a) A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person, or (2) engages in sexual intercourse with a person under thirteen years of age.”
      General Statutes § 53a-103 (a) provides: “burglary in the third degree: class d felony, (a) A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein.”

       We consider only the federal constitutional claims because the defendant offers no separate analysis under the state constitution.

       “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed. R. Evid. 401.


source: Caselaw Access Project

author: Glass, J.

license: Public Domain

text:
    State of Connecticut v. Ariel Hernandez
    (14017)
    Peters, C. J., Shea, Glass, Covello and Borden, Js.
    Argued January 10
    decision released April 30, 1991

      Robert M. Casale, for the appellant (defendant).

      Leon F. Dalbec, Jr., deputy assistant state’s attorney, with whom, on the brief, was Mary Galvin, state’s attorney, for the appellee (state).
   Glass, J.

After a jury trial, the defendant, Ariel Hernandez, was convicted of the crime of sale of cocaine by a person who is not drug-dependent in -violation of General Statutes § 21a-278 (b). He was sentenced to a term of five years imprisonment.

The defendant appealed to the Appellate Court, raising three grounds for reversal predicated on the trial court’s refusal to give certain requested instructions to the jury. The Appellate Court rejected the defendant’s claims and affirmed the judgment of conviction in State v. Hernandez, 21 Conn. App. 235, 573 A.2d 5 (1990). Thereafter, we granted his petition for certification to appeal limited to the following questions: (1) “Is the defendant entitled to have the trial court marshal the evidence to present the evidence of the defense as well as the evidence of the prosecution?”; (2) “Is the defendant entitled, upon request, to have the jury instructed that the arguments of counsel are not evidence?”; and (3) “Is the defendant entitled, upon request, to have the jury instructed that an information is not evidence of guilt?” State v. Hernandez, 216 Conn. 804, 577 A.2d 716 (1990). We reverse.

The facts are as follows. On June 12, 1986, as part of an undercover investigation of drug trafficking in the Naugatuck Valley, police officer Linda Guerra entered the Kozy Korner bar on Olivia Street in Derby for the purpose of attempting to purchase drugs. She was equipped with a hidden microphone so that three other officers located in vehicles outside the bar could monitor her conversations. At the defendant’s subsequent trial, Guerra testified that she had met him in the bar and purchased from him a substance that the state’s expert toxicologist identified at trial as cocaine. Guerra testified further that she had then proceeded to the Monkey Bar on Hawkins Street in Derby, and that the defendant had arrived there sometime later. According to Guerra, she had asked the defendant how she could contact him if she wanted to purchase additional cocaine, and he had given her a business card imprinted with the name “A1 Hernandez.” Guerra had later identified the defendant from a photographic array and again in court at his trial.

The defendant’s basic claim at trial was that he was not the person who had sold cocaine to Guerra. To substantiate this claim, the defendant sought to establish, by his own testimony, that his inability to produce an alibi or otherwise recollect his whereabouts on the date of the alleged sale was due to the passage of approximately one year between that date and the date of his arrest. In short, the essence of his defense was that while he was uncertain as to his whereabouts due to the delay, he was certain that he had never sold cocaine to Guerra. The defendant testified that he had patronized the Kozy Korner bar prior to 1986, but could not recall having gone there in 1986. Furthermore, he testified that although he had visited the Monkey Bar a “few” times and had left a stack of business cards on the bar, and had given his business card to many people, he had no recollection of having seen Guerra there or having given her a business card. During Guerra’s cross-examination, the defendant sought to establish that she had mistakenly identified him as the perpetrator of the crime. His cross-examination of the officers who had accompanied Guerra to the bars revealed that Guerra’s conversations had not been recorded. Furthermore, while she had been in the bars, the officers had been unable to identify any voice other than hers and that of a male, or to understand the nature of her conversations. As for the state’s toxicologist, the defendant attacked his methods of testing substances as unreliable.

The defendant’s first claim focuses on the trial court’s marshalling of the state’s claims and evidence in its jury charge to the exclusion of the claims and evidence of the defense. He maintains that this marshalling amounted to such an unfair presentation of the case to the jury that he was deprived of his federal and state constitutional rights to due process. We agree with the defendant that the one-sided rendition of the case given by the court was prejudicially unfair.

A trial court has broad discretion to comment on the evidence adduced in a criminal trial. State v. James, 211 Conn. 555, 571, 560 A.2d 426 (1989). “ ‘A jury trial in which the judge is deprived of the right to comment on the evidence and to express his opinion as to the facts . . . is not the jury trial which we inherited.’” (Citations omitted.) 3 W. LaFave & J. Israel, Criminal Procedure (1984) § 23.7 (c). A trial court often has not only the right, but also the duty to comment on the evidence. Heslin v. Malone, 116 Conn. 471, 477, 165 A. 594 (1933). The principal function of a jury charge is “to assist the jury in applying the law correctly to the facts which they might find to be established”; State v. Sumner, 178 Conn. 163, 170, 422 A.2d 299 (1979); and therefore, we have stated that a charge “must go beyond a bare statement of accurate legal principles to the extent of indicating to the jury the application of those principles to the facts claimed to have been proven.” Id., 170-71; see State v. Pollitt, 205 Conn. 132, 159, 531 A.2d 125 (1987).

The purpose of marshalling the evidence, a more elaborate manner of judicial commentary, is “to provide a fair summary of the evidence, and nothing more; to attain that purpose, the [trial] judge must show strict impartiality.” United States v. Levy, 578 F.2d 896, 903 (2d Cir. 1978). “The influence of the trial judge on the jury ‘is necessarily and properly of great weight’ and ‘his lightest word or intimation is received with deference, and may prove controlling.’ ” Quercia v. United States, 289 U.S. 466, 470, 53 S. Ct. 698, 77 L. Ed. 1321 (1933); see State v. Fernandez, 198 Conn. 1, 12, 501 A.2d 1195 (1985). To avoid the danger of improper influence on the jury, a recitation of the evidence “ ‘should not be so drawn as to direct the attention of the jury too prominently to the facts in the testimony on one side of the case, while sinking out of view, or passing lightly over, portions of the testimony on the other side, which deserve equal attention.’ ” Kevin Roche-John Dinkeloo & Associates v. New Haven, 205 Conn. 741, 746, 535 A.2d 1287 (1988); Anderson & McPadden, Inc. v. Tunucci, 167 Conn. 584, 591, 356 A.2d 873 (1975); State v. Rome, 64 Conn. 329, 339, 30 A. 57 (1894). “Even where the defendant has presented no evidence, the [trial] court’s summary of the evidence should try to give fair recognition to relevant points raised by the defense in cross-examination as well as to the general theory of the defense.” United States v. Levy, supra.

In addition, a court must take care to avoid making “improper remarks which are indicative of favor or condemnation”; State v. Echols, 170 Conn. 11, 14, 364 A.2d 225 (1975); and must not indulge in an argumentative rehearsal of the claims of one side only. State v. Pollitt, supra, 155-56. Such proscriptions are of heightened importance in a criminal case, where considerations of due process require that “ ‘a criminal defendant be given a fair trial before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm. . . ” (Citations omitted.) State v. Gordon, 197 Conn. 413, 424D-25, 504 A.2d 1020 (1985). “The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the state’s accusations.” Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973). “[P]artisan commentary, if fairly established by the record . . . deprives defendants of the very essence of their constitutional right to a fair trial by an impartial jury.” State v. Stange, 212 Conn. 612, 621, 563 A.2d 681 (1989).

The state takes the position that the court did not transgress the bounds of fair comment in this case. In its view, the sole evidence presented by the defendant was his own testimony, and therefore, the Appellate Court justifiably attributed the lack of parity in the court’s charge to the dearth of defense evidence as compared to the “much greater quantity” of evidence presented by the state. See State v. Hernandez, supra, 21 Conn. App. 239. The state further contends that the Appellate Court properly concluded that any deficiency in the trial court’s summary was remedied by the instructions to the jury “on at least two occasions that its recollection of the evidence, and not the trial court’s, was controlling.” (Emphasis in original.) Id. Our review of the charge as a whole leaves us unpersuaded.

The record discloses that, in its charge, the court recapitulated nearly all of the state’s testimonial and physical evidence, frequently commented favorably on the credibility of the state’s witnesses and thoroughly explained how the state’s evidence related to the essential elements of the crime charged. At one point, the court summed up the state’s claims and evidence as follows: “Again, the case is basically, as I believe one or more counsel said, a simple case. It is a case of an undercover officer, working in an undercover capacity and backed up by other officers for that undercover officer’s safety, going into a public place and meeting someone whom she identified as the defendant and making a sale and purchase, in this case, as I recall her testimony.” The sole reference to the defendant’s testimony, on the other hand, was juxtaposed with a cautionary remark regarding his interest in the case, and there was no mention of the points that he had sought to make through cross-examination of all but one of the state’s witnesses. Moreover, the single reminder that the defendant had raised any claim to innocence was the following unadorned statement: “The defendant justly relies on you to consider carefully his claims, to evaluate carefully all of the evidence and to render a verdict of not guilty if the facts and law require such a verdict.” Not the slightest allusion was made to his theory of defense.

In evaluating the court’s charge, we are cognizant that “ ‘ “[t]he test of a charge is not whether it applies pertinent rules of law to every ramification of facts conceivable from the evidence. . . .” ’ ” Tezack v. Fishman & Sons, Inc., 173 Conn. 183, 186, 377 A.2d 272 (1977). The pertinent test is whether the charge, read in its entirety, “fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law.” State v. Ballas, 180 Conn. 662, 680, 433 A.2d 989 (1980). Assuming that an injustice was indeed done, “[t]he defendant is entitled to a new trial in such circumstances, however, only where he can show that prejudice resulted from the court’s actions.” State v. Gordon, supra, 425; see State v. Echols, supra, 16.

In the present case, in which the court extensively detailed the state’s claims and its evidence in support thereof, and little or no reference was made to the defendant’s exculpatory evidence and his theory of defense, we conclude that the case was presented to the jury in such a way that injustice was done to the defendant and that he was prejudiced thereby. It is fair to say that despite the court’s disclaimers, the jury was likely to have interpreted the partisan rehearsal of the case as an indication that the court in this “simple case” believed that the defendant’s claims and evidence, seemingly not worthy of comment, likewise were not worthy of consideration. Furthermore, there was a strong likelihood of prejudice arising from the disparate presentation of the case. The court’s instructions to the jurors that their recollection of the evidence was controlling, while accurate, gave no direction as to how the legal principles stated in the charge should be applied to any defense evidence recalled, and no indication of how such evidence should be evaluated in determining whether the state had satisfied its burden of proving his guilt beyond a reasonable doubt. Since the jury was left without guidance as to the role of the defendant’s evidence in the case, we cannot say that these general instructions cured the imbalance in the court’s charge or obviated the probability of harm resulting therefrom. See State v. Echols, supra, 15-16; see also State v. Tinsley, 180 Conn. 167, 170, 429 A.2d 848 (1980).

Moreover, we can hardly say that the state’s evidence in this case, albeit sufficient for a finding of guilt, was overwhelming. Therefore, we need not decide whether overwhelming evidence of guilt would have cured the effect of the trial court’s improper marshalling of the evidence in this case.

Our conclusion that the defendant must prevail on the first certified issue renders it unnecessary to consider the second and third certified issues, because it is unlikely that they will arise on retrial.

The judgment is reversed and the case is remanded to the Appellate Court with direction to remand the case to the trial court for a new trial.

In this opinion the other justices concurred.

       General Statutes § 21a-278 (b) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance, hallucinogenic substance other than marihuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years or, (2) such person’s mental capacity was significantly impaired but not so impaired as to constitute a defense to prosecution.”

       The defendant took an extensive exception to the court’s “marshalling the evidence.”

       Since the federal and state constitutions impose similar due process limitations, we have treated the defendant’s federal and state due process claims together. See Sekou v. Warden, 216 Conn. 678, 690 n.7, 583 A.2d 1277 (1990).

       As noted by the Appellate Court, the trial court instructed the jury: “If I refer to certain facts or to certain evidence in the case you are not to assume that I mean thereby to emphasize with any particularity those facts or that evidence, nor must you limit your consideration only to them. Should I overlook any evidence in this case, and I undoubtedly will, you will supply it from your own recollection. And I say that because it is not my function to repeat to you my recollection of all the evidence in the case.” See State v. Hernandez, 21 Conn. App. 235, 239-40 n.2, 573 A.2d 5 (1990). The court also gave the following instruction: “If I may have made any reference to the position of the state or of the defendant or more of the one than of the other, it is not my intention to convey to you directly or indirectly how the court feels as to what should be the outcome of this case.” See id.

       The court stated that the defendant was “entitled to a fair and careful consideration of his testimony, but, at the same time, he must have his testimony tested and measured in the same way as any other witness, including the element of his interest in the decision you are to render.”

       The court did mention the defendant’s cross-examination of the state’s expert toxicologist.

       See footnote 4, supra.


author: Santaniello, J.

text:
    William H. Battersby III v. Gayle E. Battersby
    (14082)
    Peters, C. J., Shea, Callahan, Glass and Santaniello, Js.
    Argued January 8
    decision released May 7, 1991

      Bruce S. Beck, with whom, on the brief, was Richard A. Stamm, legal intern, for the appellant (defendant).

      J. Patrick Dwyer, with whom was Timothy J. Fitzgerald, for the appellee (plaintiff).
   Santaniello, J.

This is an appeal by the defendant from a postdissolution order of the trial court modifying the amount of child support paid by the plaintiff. We affirm.

The pertinent facts are essentially undisputed. The marriage of the parties was dissolved on December 9, 1985. There are two minor children of the marriage, whose ages are nine and eleven. Pursuant to the 1985 judgment, the trial court ordered the plaintiff to pay to the defendant the sum of $400 per week as unallocated child support and alimony. On March 28, 1990, the plaintiff moved for a modification of the 1985 judgment, seeking a reduction in the amount of the payments and an allocation of the payments between alimony and child support.

At a hearing held on June 13,1990, the parties stipulated that the defendant was cohabitating with an unrelated male and that alimony should be terminated. The sworn financial affidavits of the parties were the only evidence presented to the court.

On the basis of the affidavits, the court found that the plaintiffs weekly disposable income alone was in excess of the highest income listed on the state Guidelines for Support Standards (Guidelines) chart. It further concluded that the Guidelines do not apply when the combined weekly disposable income of the parties exceeds $750. The court considered the financial status of the parties, their living arrangements, the tax consequences of the original unallocated order, and the tax benefit of awarding the personal exemptions for the two children to the defendant. An order was entered requiring that the plaintiff pay $260 per week support for both children and allocating the tax exemptions to the defendant. From that order the defendant appealed to the Appellate Court on June 22,1990, and we subsequently transferred the case to this court pursuant to Practice Book § 4023.

The defendant claims on appeal that the trial court improperly held that: (1) when the combined weekly disposable income of the parties exceeds $750, the Guidelines are not applicable; and (2) since the parties’ combined disposable income exceeded $750, that fact alone is sufficient to find that the application of the Guidelines would be inequitable or inappropriate.

I

The defendant argues that the trial court’s refusal to apply the Guidelines in making its determination of child support contradicts the plain language of General Statutes § 46b-215b. The statute does not, despite the defendant’s assertions to the contrary, require the trial courts to apply the Guidelines to all determinations of child support, but creates only a rebuttable presumption as to the amount of child support. It requires only that the trial court consider the Guidelines. Moreover, the Guidelines do not contain provisions for disposable incomes in excess of $750. “When language used in a statute is clear and unambiguous, its meaning is not subject to modification or construction.” Cilley v. Lamphere, 206 Conn. 6, 9-10, 535 A.2d 1305 (1988). Absent ambiguity, the courts cannot read into statutes, by construction, provisions that are not clearly stated. Hayes v. Smith, 194 Conn. 52, 58, 480 A.2d 425 (1984).

There are no provisions for extrapolating to higher income levels the percentages or award amounts set forth in the Guidelines chart. If the legislature or commission had intended to provide for such extrapolation of the chart, it could have said so. Two long-standing rules of statutory construction are that a court may not by construction supply omissions in a statute simply because it appears that good reasons exist for adding them; State v. Baker, 195 Conn. 598, 602, 489 A.2d 1041 (1985); and that a court must construe a statute as it finds it, without reference to whether it thinks the statute would have been or could be improved by the inclusion of other provisions. Johnson v. Manson, 196 Conn. 309, 315, 493 A.2d 846 (1985). These rules of statutory construction are equally applicable to the task confronting the trial court in attempting to apply these legislatively mandated Guidelines. Regardless of what the parties or the court think the Guidelines should provide, the fact is inescapable that they contain no provisions for parties whose income exceeds $750 per week. The task of promulgating provisions to cover such a situation lies with the legislature or its commission, not with the court. See United Aircraft Corporation v. Fusari, 163 Conn. 401, 414, 311 A.2d 65 (1972).

General Statutes § 46b-215b (b) provides that in any proceeding for the establishment or modification of a child support award, the Guidelines “shall be considered in addition to and not in lieu of” the criteria established in General Statutes § 46b-84 (b) and other statutes not applicable to this proceeding. In addition, the Guidelines themselves list several factors that may be relevant to the determination of support amount, including the “needs of a second or prior family” and “other reasonable considerations.”

In reaching its decision, the trial court considered the parties’ financial affidavits and the fact that the plaintiff pays $200 per week, pursuant to the order of another court, for the support of one child from a subsequent marriage. It further considered the tax ramifications of modifying the original order of unallocated child support and alimony to an order of simple child support, and of awarding the personal exemptions for the two children to the defendant. The court also explained how the Guidelines work and why they do not apply to these parties.

The defendant’s claim that the trial court contradicted the plain language of General Statutes § 46b-215b is without merit. The record shows that the court considered the Guidelines, found the chart inapplicable for arriving at a presumptive support amount, and considered the statutory criteria and other Guideline factors in arriving at its decision.

II

The defendant urged the trial court to extrapolate from the chart by applying the percentage listed at the $750 level (44 percent) to the plaintiffs income. The court found that applying the Guidelines chart to incomes in excess of $750 would be inequitable because the statistical basis for the chart loses its validity as the disposable income of the family increases; that is, the proportion of household income spent on children declines as household income increases. R. Williams, “Guidelines for Setting Levels of Child Support Orders,” 21 Fam. L.Q., No. 3, 281, 288 (1987). The final report prepared by the 1985 commission on child support which recommended the statewide adoption of the Guidelines itself noted: “It is generally accepted that the guidelines are of minimal value in framing support obligations at both the high and low ends of the income scale.” Obviously, while a family earning $750 a week may spend 44 percent of its income supporting two children, a family earning $2000 per week ordinarily spends a lower percentage. Since the purpose of a child support order is to provide for the care and well-being of minor children, and not to equalize the available income of divorced parents, the trial court had the authority to reject the defendant’s suggested extrapolation of the Guidelines’ percentage as inappropriate and inequitable in the circumstances before it.

The modification order is affirmed.

In this opinion the other justices concurred.

       The Guidelines for Support Standards at issue in this case are those developed pursuant to Public Acts 1985, No. 85-548, by the commission on family support guidelines. The Guidelines consist of general explanatory provisions, a work sheet for calculating each parent’s disposable income and share of the applicable support amount, and a chart for determining the support amount. The chart is based on the combined disposable weekly income of the parents and sets forth various support amounts based on the number and age of the children. The chart begins at the $100 disposable income level and continues at increments of $10 up to $750. At the $750 income level, the chart provides, in pertinent part, as follows:
      “Schedule for Weekly Support Payments
      Combined Dis- 1 Child 2 Children 3 Children
      posable Weekly -6 6-15 16-17 -6 6-15 16-17 -6 6-15 16-17
      Income
      + /—$5.00 __
      24% 27% 29% 38% 44% 50% 44% 50% 50%
      750 180 203 218 285 330 375 330 375 375”

       We note that neither party disputes the contents of the financial affidavits or the trial court’s finding that the parties’ combined weekly disposable income does exceed $750.

       General Statutes § 46b-215b provides: “(a) The child support guidelines promulgated pursuant to section 8 of public act 85-548 and any updated guidelines issued pursuant to section 46b-215a shall be considered in all determinations of child support amounts within the state. In all such determinations there shall be a rebuttable presumption that the amount of such awards which resulted from the application of such guidelines is the amount of support to be ordered. A specific finding on the record that the application of the guidelines would be inequitable or inappropriate in a particular case, as determined under criteria established by the commission under section 46b-215a, shall be sufficient to rebut the presumption in such case.
      “(b) In any proceeding for the establishment or modification of a child support award, the child support guidelines shall be considered in addition to and not in lieu of the criteria for such awards established in sections 46b-84, 46b-86, 46b-130, 46b-171, 46b-172, 46b-198, 46b-215, 17-324 and 17-578.” (Emphasis added.)

       The court notes the issuance of the updated Guidelines, promulgated pursuant to General Statutes § 46b-215b dated January, 1991, and effective March 1, 1991. These Guidelines, which will not be applied retroactively, expand the chart to cover net weekly incomes up to $1500 and specifically provide “the guidelines do not apply where the combined net weekly family income exceeds $1,500.” (1991 Guidelines at pp. 4, 9)

       These Guidelines were originally promulgated by the commission on family support guidelines pursuant to Special Act 1984, No. 84-74, and used as part of a pilot program in the judicial districts of Fairfield and Litchfield. Pursuant to Public Acts 1985, No. 85-548, they were adopted and “made available but not binding upon” judges and other officials who determine child support awards. Public Acts 1989, No. 89-203 made it mandatory that these Guidelines be considered in all awards of child support in this state.

       The factors enumerated in General Statutes § 46b-84 (b) are “the age, health, station, occupation, earning capacity, amount and sources of income, estate, vocational skills and employability of each of the parents, and the age, health, station, occupation, educational status and expectation, amount and sources of income, vocational skills, employability, estate and needs of the child.”

       The affidavits set forth information concerning the parties’ incomes, expenses, employment, assets and debts.

       Financial hardships that result from a remarriage may be considered on a motion for modification, although they are not alone sufficient to justify the need for a modification. Riccio v. Riccio, 153 Conn. 317, 320, 216 A.2d 431 (1966); Lev v. Lev, 10 Conn. App. 570, 573, 524 A.2d 674 (1987). The trial court declared that it gave “no significant effect” to this child support order.

       It is clear that the trial court has the authority to allocate the income tax exemption and that doing so is a reasonable exercise of the court’s wide discretion and broad equitable power. See Serrano v. Serrano, 213 Conn. 1, 12, 566 A.2d 413 (1989).

       The trial court need not make express findings on each of the statutory considerations. Leo v. Leo, 197 Conn. 1, 5, 495 A.2d 704 (1985).

       It is noted that the 1991 Guidelines provide that for income levels between $750 and $1500, the actual percentage of income allocated to child support declines incrementally, in keeping with the commission’s finding that “the percentage of net household income spent on children declines as household income goes up, particularly at higher income levels.” (1991 Guidelines at p. 4)


author: Callahan, J.

text:
    Expressway Associates II v. Friendly Ice Cream Corporation of Connecticut
    (14090)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.
    Argued February 20
    decision released May 7, 1991

      William H. Champlin III, with whom were Donald Moffat and, on the brief, Kristine D. Ragaglia, for the appellant (defendant).

      James T. Shearin, with whom, on the brief, was Stephen Sakonchick II, for the appellee (plaintiff).
   Callahan, J.

The plaintiff, Expressway Associates II (Expressway), brought an action against Friendly Ice Cream Corporation of Connecticut, also known as Friendly Ice Cream Corporation (Friendly’s), claiming injunctive relief and damages for Friendly’s alleged interference with a designated right-of-way claimed by Expressway over land owned by Friendly’s in the town of Glastonbury. Expressway’s complaint alleged that Friendly’s had laid out parking spaces and placed obstacles within its right-of-way and had restricted the right-of-way to one-way traffic. In its claims for relief, Expressway sought an end to interference with its easement, removal of the parking spaces and obstacles, elimination of the one-way traffic restriction and damages.

After a trial, the trial court determined that Expressway’s claimed right-of-way was contingent upon Expressway giving notice to Friendly’s that Expressway was about to commence construction of a building on its site, the dominant estate, which was served by the right-of-way. The trial court found that such notice was required by the documents creating the right-of-way and that no such notice had been given. It further found that construction had not been commenced on Expressway’s land and that construction could not be commenced because Expressway, to that point, had been unable to obtain the necessary permits from the town. The trial court concluded that because the contingency necessary to inaugurate the right-of-way had not occurred, Expressway had failed to show that it had been irreparably harmed by Friendly’s incursions and denied Expressway an injunctive remedy. The trial court also found that Expressway had failed to prove that it was entitled to damages. The trial court’s decision effectively allowed Friendly’s to continue to use the area of the designated right-of-way for its own purposes pending notice from Expressway that it was about to begin construction on its property.

Expressway appealed the trial court’s decision to the Appellate Court. Expressway Associates II v. Friendly Ice Cream Corporation of Connecticut, 22 Conn. App. 124, 576 A.2d 575 (1990). The Appellate Court determined that the trial court had misread the documents that created Expressway’s right-of-way. Id., 126. Contrary to the trial court’s holding, the Appellate Court concluded that notice was required only as a precondition for Expressway’s construction of a permanent roadway over the area encompassed by the right-of-way at some time in the future. Id., 128-29. Accordingly, the Appellate Court held that despite the contingency concerning the road, Expressway had a present right-of-way over the designated area and that Friendly’s could not use its land within the bounds of the right-of-way “for any purpose that would deprive the plaintiff of its right to use the right-of-way.” Id., 129. The Appellate Court, therefore, reversed the judgment and remanded the case with direction to the trial court to render judgment for Expressway granting the injunctive relief sought and for further proceedings to determine the amount of damages. Id., 131.

We granted certification limited to a single issue: “Was the Appellate Court correct in including further proceedings with respect to damages in the remand when the plaintiff failed to prove damages at trial and conceded that it was entitled only to nominal damages?” Expressway Associates II v. Friendly Ice Cream Corporation of Connecticut, 216 Conn. 811, 580 A.2d 56 (1990).

It is axiomatic that the burden of proving damages is on the party claiming them. Gargano v. Heyman, 203 Conn. 616, 620, 525 A.2d 1343 (1987); Conaway v. Prestia, 191 Conn. 484, 493-94, 464 A.2d 847 (1983); Dixon v. Trubisz, 17 Conn. App. 216, 217-18, 551 A.2d 1259 (1988). When damages are claimed they are an essential element of the plaintiff’s proof and must be proved with reasonable certainty. Simone Corporation v. Connecticut Light & Power Co., 187 Conn. 487, 495, 446 A.2d 1071 (1982); Bianco v. Floatex, Inc., 145 Conn. 523, 525, 144 A.2d 310 (1958). Damages “are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty.” Humphrys v. Beach, 149 Conn. 14, 21, 175 A.2d 363 (1961); Gargano v. Heyman, supra, 621; Simone Corporation v. Connecticut Light & Power Co., supra, 494-95; Bronson & Townsend Co. v. Battistoni, 167 Conn. 321, 326-27, 355 A.2d 299 (1974); Anderson v.Zweigbaum, 150 Conn. 478, 482, 191 A.2d 133 (1963).

In order to be entitled to more than nominal damages for Friendly’s interference with its right-of-way, Expressway was required to demonstrate at trial either the diminution in the value of its property because of Friendly’s interference with its easement; Kelly v. Ivler, 187 Conn. 31, 47, 450 A.2d 817 (1982); see Buckley v. Maxson, 120 Conn. 511, 519, 181 A. 922 (1935); the cost to return the easement to its original state; Kelly v. Ivler, supra; see Center Drive-In Theatre, Inc. v. Derby, 166 Conn. 460, 467-68, 352 A.2d 304 (1974); or the difference in the value of the easement before the interference and its value after it was obstructed. Kelly v. Ivler, supra; see generally System Fuels, Inc. v. Barnes, 363 So. 2d 747, 749 (Miss. 1978); 28 C. J.S., Easements § 114 (a). Expressway, despite opportunity, failed to produce evidence at trial to prove any of these factors.

The parties to this case were notified by the court on January 19,1989, that it was to be tried on February 10, 1989, and it was actually tried on that date. There is no indication in the notice scheduling the matter for trial that it was assigned only for a hearing on Expressway’s claim for injunctive relief. Further, there is nothing in the record to suggest that the issue of damages was not to be addressed on February 10, 1989, or that Expressway was prevented or constrained from attempting to prove any damages it may have suffered as a result of Friendly’s actions. Moreover, in closing arguments, Expressway’s counsel, in emphasizing its need for an injunction, stated that “[tjhere’s no civil suit that can be brought at the moment, that I can think of anyway, to claim damages because there aren’t any damages, they’re speculative.” (Emphasis added.) “The general rule is that admissions, if relevant and material, made by an attorney incidental to the general authority of the attorney to represent his client in connection with and for the purpose of controlling the matter committed to him are admissible against the client.” Collens v. New Canaan Water Co., 155 Conn. 477, 496, 234 A.2d 825 (1967); Lickteig v. Buckholtz, 129 Conn. 399, 401-402, 28 A.2d 871 (1942); Allen v. Nissley, 184 Conn. 539, 543, 440 A.2d 231 (1981); Evans Products Co. v. Clinton Building Supply, Inc., 174 Conn. 512, 517, 391 A.2d 157 (1978); Wesson v. F.M. Heritage Co., 174 Conn. 236, 243, 386 A.2d 217 (1978). We see no reason to vary that general rule in this instance, particularly when the evidence at trial was consistent with counsel’s statement.

We conclude in this case, as we did in Loew’s Enterprises, Inc. v. International Alliance of T.S.E., 127 Conn. 415, 421-22, 17 A.2d 525 (1941), that “[tjhe plaintiff was in effect seeking as its sole remedy an injunction. There is no basis in its claims or in the facts proven which would justify a remand of the case for a retrial of issues in a claim for damages.”

The Appellate Court noted in its decision, however, that it was undisputed that Friendly’s had laid out parking spaces and had placed obstacles in Expressway’s right-of-way. It concluded that it was clear, therefore, that Expressway had proven that Friendly’s had interfered with its rights in the designated area. Express way Associates II v. Friendly Ice Cream Corporation of Connecticut, supra, 22 Conn. App. 131. Proof of a legal injury to a real property right entitles a plaintiff to at least token or nominal damages even if no specific actual damages are proven. In this case, therefore, despite the fact that Expressway failed to prove actual damages, it is entitled to nominal damages. It is not, however, entitled to another trial on the issue of damages. Kelly v. Ivler, supra, 46; Riccio v. Abate, 176 Conn. 415, 419 n.2, 407 A.2d 1005 (1979); Maganini v. Coleman, 168 Conn. 362, 364, 362 A.2d 882 (1975); Dimmock v. New London, 157 Conn. 9, 16, 245 A.2d 569 (1968); Patalano v. Chabot, 139 Conn. 356, 362, 94 A.2d 15 (1952).

The judgment of the Appellate Court is reversed, therefore, to the extent that it ordered further proceedings to determine the amount of damages to be awarded to Expressway and the case is remanded to the Appellate Court with direction to remand it to the trial court with direction to render a judgment for Expressway for $1 in damages.

In this opinion the other justices concurred.


author: Shea, J.

text:
    Keith Laws v. Warden, State Prison
    (14229)
    Peters, C. J., Shea, Callahan, Glass, Covello, Hull and Borden, Js.
    Submitted February 5
    decision released May 7, 1991

      James Moreno, for the petitioner, in support of the motion.

      StevenM. Sellers, assistant state’s attorney, for the respondent, in opposition to the motion.
   Shea, J.

In this habeas corpus action, the respondent filed an appeal from the judgment of the habeas court without first obtaining certification by a judge as required by General Statutes § 52-470 (b) for an “appellant” to appeal from a habeas court judgment. The petitioner has moved to dismiss the appeal because no permission to appeal has been obtained and also because the appeal was not filed within the time allowed. The respondent maintains that the prohibition of § 52-470 (b) against taking an appeal from a habeas judgment unless the “appellant” first obtains certification “that a question is involved in the decision which ought to be reviewed” is applicable only to a petitioner.

The principal issue is whether the term “appellant” in the statute refers to the respondent as well as to the petitioner in a habeas corpus proceeding. We agree with the petitioner that § 52-470 (b) imposes a certification requirement upon any party seeking to appeal from a habeas judgment, whether it be the respondent or the petitioner. We point out, however, that Practice Book § 4143 (b) (1) authorizes the “state” to proceed by way of a writ of error after it has been denied certification to appeal. Our ultimate conclusion is that the appeal must be dismissed for lack of jurisdiction. We need not and do not address the second ground of the motion to dismiss, the timeliness of the appeal.

The petitioner was convicted of first degree robbery in violation of General Statutes § 53a-134 after a trial by jury. He was sentenced by the court, Mulvey, J., on November 4, 1983, to an effective sentence of twelve years imprisonment. On February 9,1990, he filed an amended habeas corpus petition alleging, inter alia, that his trial counsel had thwarted his right to testify in his own defense. Concluding that the petitioner had proved this ground for relief, the habeas court, Dunn, J., on September 20,1990, ordered his release from custody unless a new trial was held within six months.

Within the ten days allowed by § 52-470 (b), the respondent requested certification to appeal, but the habeas court judge refused to grant it. A motion for review of the denial of certification was presented to the Appellate Court and was dismissed without opinion. Two days later, on January 31, 1991, the respondent filed this appeal in the Appellate Court and the petitioner filed a timely motion to dismiss the appeal. We transferred the case to this court pursuant to Practice Book § 4023 prior to any ruling on the motion to dismiss by the Appellate Court.

The respondent argues that the term “appellant,” upon whom the requirement of certification is imposed by § 52-470 (b), must be deemed to refer only to a person who has initiated a “habeas corpus proceeding brought in order to obtain his release by or in behalf of one who has been convicted of crime.” (Emphasis added.) He maintains that the possessive pronoun, “his,” relates to “appellant,” thus limiting its meaning to a person seeking the release of a convicted prisoner.

We need not consider whether this textual analysis is more persuasive than one that would relate “his” solely to the phrase “one who has been convicted of crime,” because we conclude that the respondent’s interpretation is precluded by Practice Book § 4143 (b). This provision of our rules allows the state to “bring a writ of error where it has been denied certification to appeal in a habeas corpus proceeding pursuant to Gen. Stat. § 52-470 (b).” The rule resolves the ambiguity of the statute from which this dispute arises and may be regarded as a judicially approved construction of the statute. Connecticut Light & Power Co. v. Public Utilities Control Authority, 176 Conn. 191, 198, 405 A.2d 638 (1978). If the respondent’s contention were sound that § 52-470 (b) applies only to a petitioner seeking to appeal, it would have been wholly unnecessary to allow the state, or a respondent acting in its behalf, to proceed by way of a writ of error after permission to appeal sought pursuant to § 52-470 (b) had been denied. Implicitly the rule contemplates that a respondent seeking to appeal will first request certification, as the statute requires.

The matter before us is an appeal, not a writ of error. We conclude that the inability of the respondent to obtain certification, as required by § 52-470 (b) for any appellant, barred the present appeal. The petitioner’s motion to dismiss for lack of jurisdiction to entertain the appeal must be granted.

The appeal is dismissed.

In this opinion the other justices concurred.

       General Statutes § 52-470 (b) provides as follows: “No appeal from the judgment rendered in a habeas corpus proceeding brought in order to obtain his release by or in behalf of one who has been convicted of crime may be taken unless the appellant, within ten days after the case is decided, petitions the judge before whom the case was tried or a judge of the supreme court or appellate court to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies.”

       The judgment of the habeas court was rendered on September 20,1990, while the appeal was filed on January 31,1991, obviously well beyond the time allowed by Practice Book § 4009 for taking an appeal. The respondent contends that the time for taking an appeal pursuant to General Statutes § 52-470 (b) should be measured from January 20, 1991, when its application for certification was finally denied by virtue of the dismissal of its motion for review of the habeas court’s refusal to certify. See State v. Tucker, 23 Conn. App. 559, 563, 583 A.2d 139 (1990). The petitioner relies upon LaReau v. Reincke, 158 Conn. 486, 496, 264 A.2d 576 (1969), in which the court held that the time limit for filing an appeal is not jurisdictional, but also indicated that the proper method of preserving the right to file an appeal, when certification pursuant to § 52-470 (b) is required, is to file a motion for an extension of time with the trial court. Because of our conclusion that we lack jurisdiction of this appeal for reasons unrelated to timeliness, it would be inappropriate for us to address this issue.

       Practice Book § 4143 (b) provides as follows: “No writ of error may be brought in any civil or criminal proceeding for the correction of any error where (1) the error might have been reviewed by process of appeal, or by way of certification, except that the state may bring a writ of error where it has been denied certification to appeal in a habeas corpus proceeding pursuant to Gen. Stat. § 52-470 (b) and a petitioner may bring a writ of error in a habeas corpus proceeding requiring certification to appeal where petitioner has been denied certification to appeal and the issues sought to be raised do not present any federal question cognizable by the federal district court, or (2) the parties, by failure timely to seek a transfer or otherwise, have consented to have the case determined by a court or tribunal from whose judgment there is no right of appeal or opportunity for certification.”


author: Per Curiam.

text:
    State of Connecticut v. John Santiago
    (14111)
    Shea, Callahan, Glass, Hull and Bokden, Js.

      Argued February 15
    decision released May 7, 1991

      Denise Bevza, for the appellant (defendant).

      Jack W. Fischer, deputy assistant state’s attorney, with whom, on the brief, were C. Robert Satti, Sr., state’s attorney, and Peter McShane, deputy assistant state’s attorney, for the appellee (state).
   Per Curiam.

The defendant was convicted of two counts of failure to assist a peace officer in violation of General Statutes § 53a-167b after a jury trial. He appealed from this judgment to the Appellate Court, claiming that: (1) the trial court had improperly permitted the state to amend the information by adding on the morning of trial the two counts on which he was found guilty; (2) § 53a-167b is unconstitutionally vague and overbroad; and (3) the jury should have been instructed to acquit the defendant if the officer’s request for assistance was unlawful. The Appellate Court affirmed the judgment; State v. Santiago, 22 Conn. App. 683, 578 A.2d 668 (1990); and the defendant petitioned for certification to appeal to this court. We granted the petition for certification limited to the following questions: (1) “May the defendant belatedly raise the constitutionality of General Statutes § 53a-167b?” and (2) “Is the statute constitutional?” State v. Santiago, 216 Conn. 820, 581 A.2d 1057 (1990).

At the time we granted certification, we had not decided State v. Floyd, 217 Conn. 73, 584 A.2d 1157 (1991), in which the issue of the constitutionality of § 53a-167b had been raised in the trial court by a motion to dismiss. That court resolved the issue by determining that the statute was invalid as applied to a “statement of the essential facts” as alleged by the state pursuant to Practice Book § 625. In our opinion in Floyd, we regarded the ruling of the trial court as “tantamount to a facial invalidation of the statute.” Id., 75. We construed § 53a-167b to authorize an official “to command assistance in the execution of his duties only when circumstances render the command both necessary and reasonable.” Id., 94. Ultimately we concluded that “the statute is not facially unconstitutional under the fourth or fourteenth amendments” and reversed the judgment of dismissal. Id., 95.

In the present appeal, the failure of the defendant to raise the constitutionality of § 53a-167b at trial leaves the record inadequate for a fair consideration of whether the statute was unconstitutionally applied to the circumstances under which he refused four requests to open the door of his apartment that were made by police officers over a period of several minutes. See State v. Golding, 213 Conn. 233, 240, 567 A.2d 823 (1989). The principal focus of the defendant on appeal to this court is upon his claim that § 53a-167b is facially invalid for vagueness. We resolved that claim adversely to him in Floyd by rejecting the identical claim in that case.

Accordingly, we conclude that certification to appeal in this case was improvidently granted and that the appeal should be dismissed.

The appeal is dismissed.