text:
    Cecylia M. Doyle v. Edwin J. Kulesza
    (12030)
    Peters, C. J., Healey, Dannehy, Santaniello and Callahan, Js.

      Argued June 5
    decision released August 6, 1985

      Henry C. Ide, for the appellant (plaintiff).

      Michael A. Georgetti, for the appellee (defendant).
   Dannehy, J.

In this action the plaintiff sought to compel a reconveyance of a one-half interest in land which she had conveyed to the defendant, or in the alternative, a conveyance of the property to her children, a finding as to the validity of an alleged trust deed, equitable relief and an accounting. In his answer, the defendant denied all of the material facts alleged in the complaint and by way of counterclaim claimed absolute ownership of the land. The trial court, Kremski, J., rendered judgment for the defendant on the complaint and on the counterclaim. The plaintiff appealed.

Two claims of error are pursued in the plaintiff’s brief: (1) whether the trial court’s judgment is supported by sufficient evidence; and (2) whether the trial court erred in one of its rulings on evidence. With regard to the latter, the plaintiff’s brief does not conform to the requirement of Practice Book § 3060F (d) (3) that the pertinent question, ground of objection, answer, if any, and any exception be set forth. Southern Connecticut Gas Co. v. Housing Authority, 191 Conn. 514, 523 n.5, 468 A.2d 574 (1983). Disregarding this technical but entirely conclusive answer to this claim of error, we find that the record does not show that the ground of objection now urged was urged in the trial court. So far as appears, it is raised for the first time in this court and we do not consider it. Practice Book § 3063.

The facts in this case are not in serious dispute. The plaintiff is the sister of the defendant. In September, 1959, the plaintiff successfully negotiated to buy land in Goshen. On October 16,1959, title to the Goshen land was conveyed by the then owner to the plaintiff and the defendant as joint tenants with right of survivor-ship. At the time of the conveyance each paid $1500 toward the consideration, and as part of the purchase price they executed a mortgage for $8250. From the time they acquired the land in 1959 until 1962 they contributed equally to the payments for taxes and amortization of the mortgage. On June 26,1963, the plaintiff released her interest in the premises by quitclaim deed to the defendant. This was done, as expressed in the deed, “for divers good causes and consideration thereunto moving, especially for One (1) Dollar and other valuable considerations received to [the plaintiffs] full satisfaction of the [defendant], Trustee.” Since that time, the defendant has paid the taxes, mortgage installments and all other expenses. On January 5, 1965, the plaintiff signed a memorandum which she prepared at the defendant’s request wherein she “confirm[ed] a verbal agreement” whereby the plaintiff sold and the defendant purchased her interest in the Goshen property “at the same price which we paid for same.”

The trial court decided that the defendant did not hold the land in trust for the plaintiff’s children. A further conclusion of the court was that on June 26,1963, the plaintiff made an absolute conveyance of the property to the defendant. The plaintiff contends that these conclusions are not supported by the evidence, and we are asked to change the finding made by the trial court.

A written memorandum of decision constitutes part of the record in this case. The findings of fact included in the memorandum of decision are based in the main on oral testimony. The plaintiff did not file a motion requesting the trial judge to amend the factual basis of his opinion or to make a further articulation of his decision on the issues in the case. Practice Book § 3082. We therefore consider the trial court’s findings in light of the provision of Practice Book § 3060D that this court will not reverse or modify the decision of a trial court unless we determine that the decision is clearly erroneous in view of the evidence and pleadings in the whole record.

One of the most frequently quoted definitions of the words “clearly erroneous” was stated in United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 92 L. Ed. 746 (1948): “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” In applying the clearly erroneous standard to the findings of a trial court, we keep constantly in mind that our function is not to decide factual issues de novo. Our authority, when reviewing the findings of a judge, is circumscribed by the deference we must give to decisions of the trier of fact, who is usually in a superior position to appraise and weigh the evidence. See Zenith Radio Corporation v. Hazeltine Research, Inc., 395 U.S. 100, 123, 89 S. Ct. 1562, 23 L. Ed. 2d 129 (1969). The question for this court under § 3060D is not whether it would have made the findings the trial court did, but whether in view of the evidence and pleadings in the whole record it is left with the definite and firm conviction that a mistake has been committed.

The gist of the plaintiff’s complaint is that she conveyed her interest in the real estate by quitclaim deed to the defendant for the purpose of preventing her sister from acquiring that interest by attachment. There is no allegation of fraud, accident or mistake. It is alleged that when the deed was executed, it was agreed by the parties that the defendant would keep the property, in trust, for the use and benefit of the plaintiff’s children. While the evidence is conflicting, there is not only direct evidence of a contrary agreement made by the parties but evidence of the plaintiff’s admission to the same effect. The credibility to be accorded the several witnesses thus became the decisive factor in the lawsuit. The trial court’s finding makes it clear that it rejected the testimony of the plaintiff and her witnesses, essential to her case, but did accept that of the defendant. The trial court found that the plaintiff, upon a valuable consideration acknowledged to have been received, conveyed her entire interest in the property to the defendant. This determination of a question of fact we cannot disturb. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 220, 435 A.2d 24 (1980).

We conclude that the findings made by the trial court are not clearly erroneous within the meaning of Practice Book § 3060D. The trial court’s failure to find the existence of a trust for the plaintiff’s children, coupled with its conclusion that the land was absolutely conveyed to the defendant, are fully supported by the subordinate facts.

There is no error.

In this opinion the other judges concurred.

       On appeal, the plaintiff claims that the trial court improperly considered as evidence of title a document introduced into evidence by the defendant allegedly for the limited purpose of showing the plaintiffs intent to revoke a trust agreement. At trial, the plaintiff offered a general objection to the admission of the document based upon relevancy. The trial court overruled the objection and admitted the document, without limitation, as a full exhibit. The plaintiff now claims, for the first time, that the document should not have been considered as evidence of title because it violates the statute of frauds. See General Statutes § 52-550.

       The memorandum provided as follows:
      "January 5, 1965
      “To Whom it may concern:
      “This is to confirm a verbal agreement made on or about January 4,1962 between myself (Cecylia Doyle) and my brother Edwin J. Kulesza.
      “This agreement is that all monies given to me or paid directly by Edwin J. Kulesza, for Goshen property mortgage, taxes, interest etc; including future payments (1965) or payments on a note to the Burritt Mutual Savings Bank and $250.00 given me to pay attorney McNamara is not regarded as a loan but that he, E. J. Kulesza is buying out my interest in this Goshen property at the same price which we paid for same.
      “ /s/ Cecylia Doyle”


source: Caselaw Access Project

author: Peters, C. J.

license: Public Domain

text:
    State of Connecticut v. Timothy Fair
    (11457)
    Peters, C. J., Healey, Shea, Dannehy and Santaniello, Js.

      Argued June 7
    decision released August 6, 1985

      Robert F. McWeeny, for the appellant (defendant).

      Donald A. Browne, state’s attorney, with whom, on the brief, was Dominick J. Galluzzo, assistant state’s attorney, for the appellee (state).
   Peters, C. J.

The issues on this appeal concern the propriety of psychiatric testimony offered by the state to rebut a defense of extreme emotional disturbance. After a jury trial, the defendant, Timothy Fair, was found guilty of murder in violation of General Statutes § 53a-54a (a) and of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2). He appeals from this judgment.

Neither party disputes the facts material to the murder conviction. The defendant and the victim lived together from June, 1979, until December, 1980. The couple had a son in April, 1980. On December 26,1980, the victim left the defendant, taking the child with her. She notified the defendant on December 28 that she intended to move to Boston and that he would never see their son again. On the morning of December 29, the defendant went to the victim’s place of employment and shot her in the head. She died several days later.

At trial, the defendant claimed that he had shot the victim while suffering from an extreme emotional disturbance caused by his fear that he would never again see his son. Extreme emotional disturbance operates as a partial affirmative defense to murder. One who kills while under the influence of an extreme emotional disturbance cannot be convicted of murder but can be found guilty of manslaughter.

Upon learning that the defendant intended to rely on this defense, the state moved that the court order the defendant to undergo psychiatric examination by a court-appointed psychiatrist. Over the defendant’s objection, the court granted the motion and appointed Dr. John Young to examine the defendant. Young interviewed the defendant twice and, with the defendant’s permission, reviewed his medical records. The state allowed Young to examine its file on the defendant. The contents of this file included a presentence investigation report that a probation officer had prepared in conjunction with a prior conviction of the defendant. Young studied the report and spoke with its author. At trial, the defendant presented only lay testimony in support of his claim of extreme emotional disturbance. In rebuttal, Young testified that the defendant had not been suffering from an extreme emotional disturbance when he shot the victim.

The defendant raises two issues on appeal: (1) that the trial court unconstitutionally forced him to submit to psychiatric examination; and (2) that the state improperly allowed the court-appointed psychiatrist to read a confidential presentence report.

I

The defendant claims that the compelled psychiatric examination he underwent violated his privilege against self-incrimination. We disagree.

The constitutionality of a compulsory psychiatric examination depends upon whether the defendant has placed his mental status in issue. The fifth amendment to the United States constitution and article first, § 8, of the Connecticut constitution ordinarily protect “an accused against compulsory submission to psychiatric examination.” State v. Lovelace, 191 Conn. 545, 550, 469 A.2d 391 (1983), cert. denied, 465 U.S. 1107, 104 S. Ct. 1613, 80 L. Ed. 2d 142 (1984), citing Estelle v. Smith, 451 U.S. 454, 468, 101 S. Ct. 1866, 68 L. Ed. 2d 359 (1981). A criminal defendant waives this privilege, however, when he places his mental status in issue. “[T]he defendant may decide whether to raise the issue of his mental state but if he chooses to do so he exposes his mental processes to reasonable examination by the state.” State v. Lovelace, supra, 551-52.

We recognized in Lovelace that a defendant who claims extreme emotional disturbance places his mental status in issue. Extreme emotional disturbance is a defense whose establishment turns upon the fact-finder’s characterization of the defendant’s psychological condition without regard to any specific element of the crime to which the defense applies. To prove that he acted under the influence of an extreme emotional disturbance, the defendant must show, by a fair preponderance of evidence, that: “(a) the emotional disturbance is not a mental disease or defect that rises to the level of insanity as defined by the penal code; (b) the defendant was exposed to an extremely unusual and overwhelming state, that is, not mere annoyance or unhappiness; and (c) the defendant had an extreme emotional reaction to it, as a result of which there was a loss of self-control, and reason was overborne by extreme intense feelings, such as passion, anger, distress, grief, excessive agitation or other similar emotions. Consideration is given to whether the intensity of these feelings was such that his usual intellectual controls failed and the normal rational thinking for that individual no longer prevailed at the time of the act.” State v. Zdanis, 182 Conn. 388, 390-91, 438 A.2d 696 (1980), cert. denied, 450 U.S. 1003, 101 S. Ct. 1715, 68 L. Ed. 2d 207 (1981); see also State v. D’Antuono, 186 Conn. 414, 441 A.2d 846 (1982); State v. Elliott, 177 Conn. 1, 9-10, 411 A.2d 3 (1979).

Lovelace strikes a balance between the legitimate needs of the state and the cognizable rights of the defendant. On the one hand, without access to a psychiatric report, the state cannot respond intelligently to defenses that concern a defendant’s mental status. On the other hand, the state’s use of information obtained by court-appointed psychiatrists is not unlimited. The state may not rely on statements made by the defendant during a compulsory psychiatric examination to meet its affirmative burden of proving the defendant’s guilt in any criminal proceeding. Practice Book § 760; cf. United States v. Cohen, 530 F.2d 43, 47-48 (5th Cir. 1976); Lee v. County Court of Erie County, 27 N.Y.2d 432, 267 N.E.2d 452, 318 N.Y.S.2d 705 (1971).

The defendant contends that he did not put his mental status in issue because he never presented expert psychiatric testimony in support of his defense. This argument reads Lovelace too narrowly. In Lovelace, we did note that a psychiatrist had testified on behalf of the defendant. State v. Lovelace, supra, 550-51. We did not thereby establish the defendant’s presentation of his own psychiatrist as a precondition to his waiver of his privilege against compelled psychiatric examination. It would be anomalous to hold that a defendant can put his mental status in issue only through expert testimony when he can also meet his burden of proof on the issue of extreme emotional disturbance simply by offering his own testimony or the testimony of lay witnesses. Any defendant who asserts the defense of extreme emotional disturbance, whether or not he resorts to offering psychiatric testimony, raises the issue of his mental status and hence relinquishes his privilege against submitting to court-ordered psychiatric examination.

By informing the court of his intention to employ the extreme emotional disturbance defense and by presenting evidence in support of that defense, the defendant in this case did place his mental status in issue. The trial court properly directed him to submit to psychiatric examination.

II

On his second claim of error, the defendant urges us to hold inadmissible the testimony of John Young, the court-appointed psychiatrist, because the state allowed him to read a presentence report concerning the defendant, in violation of Practice Book § 917. While we do not approve of the state’s conduct in permitting the psychiatrist to have the report, we conclude that the defendant has failed to establish that the psychiatrist’s access to the report constitutes reversible error.

Practice Book § 917 protects convicted criminal offenders from public disclosure of the contents of their presentence investigation reports. Presentence investigation reports serve to assist courts in setting appropriate sentences and to help corrections officials make informed decisions with respect to convicted offenders. Steadwell v. Warden, 186 Conn. 153, 159, 439 A.2d 1078 (1982). Reports typically discuss “the circumstances of the offens[e] [in question], the attitude of the victim or his immediate family, the criminal record, social history and present condition of the defendant, and, if desirable, the mental and physical state of the defendant.” Id., 158-59; see General Statutes § 54-91a; Practice Book § 911. Because presentence reports contain personal, and possibly embarrassing, information about the defendant, Practice Book § 917 limits access to them. Only the sentencing judge, parties to the sentencing hearing, certain corrections officers, courts in subsequent proceedings where the report is relevant, and, if the court so orders, counsel at the subsequent proceeding may have copies of the presentence report. Section 917 makes no provision for the release of the presentence report to court-appointed expert witnesses. By giving Young a copy of the defendant’s prior presentence report, the state violated § 917.

The Practice Book sets forth no remedy for violations of § 917. The defendant argues that the admission of testimony tainted by exposure to a presentence report compels reversal. The state contends that the psychiatrist’s testimony was admissible because expert witnesses may consider inadmissible evidence in preparing their testimony. See State v. Cuvelier, 175 Conn. 100, 107-108, 394 A.2d 185 (1978). The few courts in other jurisdictions that have considered this question vary in their sensitivity to a witness’s use of a presentence report. See, e.g., People v. Beasley, 687 P.2d 1323 (Colo. App. 1984); Oney v. State, 446 A.2d 389 (Del. 1982); Warren v. United States, 436 A.2d 821 (D.C. App. 1981).

We decide today that testimony derived from improper access to presentence reports is inadmissible. The question that remains is whether the improper admission of such evidence constitutes reversible error. This is a question that is best resolved on a case-by-case basis, weighing the degree of impropriety of use and the prejudice that results to the defendant. In conducting such an inquiry, we must measure harm to the defendant in light of the purposes served by § 917 and the consequences of the specific violation. The restrictions imposed by § 917, which have the force of statute, are primarily meant to protect an offender from public disclosure of private information. In addition, a defendant may be hard presssed to conduct an effective cross-examination of an expert witness who draws adverse inferences from mixed sources, some of which were improperly consulted. On either ground, because the unauthorized use of a presentence report is not of constitutional dimension, the defendant bears the burden of establishing resulting harm. See State v. Myers, 193 Conn. 457, 469 n.7, 479 A.2d 199 (1984); State v. Anonymous (83-FG), 190 Conn. 715, 735, 463 A.2d 533 (1983); State v. Gonzales, 186 Conn. 426, 436 n.8, 441 A.2d 852 (1982); State v. Januszewski, 182 Conn. 142, 174, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981).

In this case, the defendant has failed to prove that the psychiatrist’s improper access to the presentence report was harmful. At trial, before Young testified, the defendant was informed of Young’s access to the report. The defendant has not attempted to show that, but for his exposure to the report, Young would have rendered an opinion more favorable to the defendant. In preparing his opinion, Young relied on a number of resources. Nothing in the record indicates that Young’s review of the presentence report did any more than reinforce conclusions that he had already drawn from other sources, and he was never asked what weight he had given to the presentence report in arriving at his professional opinion. Nor does the record support attaching prejudicial impact to Young’s allusion to the presentence report in his testimony to the jury, since information about the defendant’s criminal record had already been supplied to the jury upon the defendant’s cross-examination, in which he admitted a number of prior convictions. Moreover, Young’s access to the report did not result in its publication. The record shows that Young discussed the report with only one other person — the author of the report — and did not, in the course of his testimony, discuss any specific information contained in the report.

Because the psychiatrist’s access to the report resulted in no demonstrated prejudice, we find no reversible error. Nevertheless, we admonish the state and all others to whom presentence investigation reports are properly available to guard against the unauthorized release of such reports in the future.

There is no error.

In this opinion the other judges concurred.

       The defendant does not raise any claims of error concerning his conviction of robbery.

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

       A defendant, by merely contesting the intent element of a charged crime, does not ordinarily put his mental status in issue and may not be subjected to a court-ordered psychiatric examination. Of course, a defendant may choose to offer relevant evidence derived from a psychiatric examination where intent is an issue. See State v. Burge, 195 Conn. 232, 240, 487 A.2d 532 (1985); State v. Hines, 187 Conn. 199, 204, 445 A.2d 314 (1982); see also Practice Book § 760.

       “[Practice Book] Sec. 760. —• —psychiatric examination
      “In an appropriate case the judicial authority may, upon motion of the prosecuting authority, order the defendant to submit to a psychiatric examination by a psychiatrist designated for this purpose in the order of the court. No statement made by the defendant in the course of any examination provided for by Sec. 757, whether the examination shall be with or without the consent of the defendant, shall be admitted in evidence against the defendant on the issue of guilt in any criminal proceeding. A copy of the report of the psychiatric examination shall be furnished to the defendant within a reasonable time after the examination.”

       “[Practice Book] Sec. 917.--USE
      “The presentence investigation report shall not be a public record and shall not be accessible to the public. It shall be available initially to the parties designated in Sec. 915 for use in the sentencing hearing and in any subsequent proceedings wherein the same conviction may be involved, and it shall be available at all times to the following:
      “(1) The department of adult probation;
      “(2) The correctional or mental health institution to which the defendant is committed or may be committed;
      “(3) The board of parole;
      “(4) The board of pardons;
      “(5) The sentence review division of the superior court;
      “(6) The judicial review council;
      “(7) Any court of proper jurisdiction where it is relevant to any proceeding before such court. Such court may also order that the report be made available to counsel for the parties for the purpose of such proceeding;
      “(8) Counsel for the defendant and the prosecuting authority during negotiations relating to other offenses pending against the defendant or subsequently charged against him; and
      “(9) Counsel for the defendant in a sentence review hearing or habeas corpus proceeding upon counsel’s request to the department of adult probation; and
      “(10) Any other person or agency specified by statute.”

         The lack of a sanction in Practice Book § 917 is of course no obstacle to appropriate corrective action by a court, sua sponte or on motion, to exclude or strike testimony impermissibly derived from a presentence investigation report.


author: Callahan, J.

text:
    State of Connecticut v. Michael Reddick
    (11181)
    Petebs, C. J., Healey, Dannehy, Santaniello and Callahan, Js.

      Argued May 3
    decision released August 6, 1985

      Sue L.Wise, with whom, on the brief, were, JohnR. Williams and Elizabeth M. Inkster, for the appellant (defendant).

      Peter Nussbaum, legal intern, with whom was Guy W. Wolf III, assistant state’s attorney, and, on the brief, Arnold Maride, state’s attorney, for the appellee (state).
   Callahan, J.

The defendant, Michael Reddick, was convicted of first degree robbery and of assault of a victim sixty or older in the third degree, in violation of General Statutes §§ 53a-134 (a) (4) and 53a-61a (a), respectively,, and was sentenced to an effective term of imprisonment of not less than nine nor more than eighteen years. He appeals from the judgment of conviction, claiming that his rights under the state and federal constitutions were violated by: (1) the court’s failure to require the state to produce allegedly exculpatory material; (2) a witness’ invocation of his fifth amendment privilege against self-incrimination during direct examination by the prosecutor; (3) the state’s introduction of evidence regarding the defendant’s pretrial incarceration; and (4) alleged errors in the court’s jury instructions. We find no error.

The jury could reasonably have found the following facts: On June 24, 1980, at approximately 10:30 a.m., the Jackson-Marvin Hardware Store at 843 Whalley Avenue in New Haven was robbed by a black male carrying what appeared to be a sawed-off shotgun. The perpetrator initially went to a side office in the store and inquired of a bookkeeper, Esther Woodward, whether duplicate keys were made on the premises. After receiving an affirmative response, he left, but returned in a few minutes, displayed the gun, and began taking money from an open drawer in Woodward’s desk. At that point, Martin Daniell, a seventy-five year old employee of the store, intervened. The robber struck Daniell with the gun on the shoulder and forehead, and then fled. While fleeing, the perpetrator encountered a cashier, Jill Harrison, in an aisle in the store and pushed her aside. Upon leaving the store, he entered a car which was parked in front and left the area. A customer, Joseph Puglisi, who was at the entrance of the store, saw the robber get into the car and noted the license plate number. The car, which was a stolen vehicle, was later found abandoned.

On July 10,1980, Esther Woodward, the bookkeeper, and Jill Harrison, the cashier, independently viewed police photographic displays containing pictures of black males and identified the defendant as the man who had robbed the hardware store on June 24,1980. The defendant was arrested and later tried before a jury. At the trial, Woodward testified that she was 90 percent sure of her photographic identification. She also testified that she was 90 percent sure that the defendant, whom she identified in the courtroom, was the man who had robbed the store. Harrison testified that she had picked out photographs of other black males as appearing similar to the defendant before she selected the defendant’s photograph as that of the robber. In the courtroom, Harrison identified the defendant as the robber and testified that she was absolutely sure of her in-court identification. A note from the jury during the course of its deliberations indicated that it considered identification to be the critical issue in the case and that it was troubled by the evidence in that regard.

I

The defendant first claims that he was denied due process of law and the effective assistance of counsel because prior to trial the state failed to disclose, and the trial court denied motions to obtain, allegedly exculpatory information, namely, the failure of several eyewitnesses to the robbery to identify the defendant as the robber. There were two individuals other than Woodward, Harrison, Daniell and Puglisi in the Marvin-Jackson Hardware Store on the morning of June 24, 1980, at the time of the robbery. They were James Bethune, an employee of the store, and a customer, Paul Gagliardi. The defendant asserts that the pretrial photographic identifications supplied by Woodward and Harrison constituted “the only evidence against him.” He argues that under these circumstances, the inability of the other four eyewitnesses to identify him was exculpatory material that the court should have required the state to produce prior to trial and that its failure to do so entitles him to a new trial. We disagree.

There is no indication in the record that either Bethune or Daniell ever attempted to make a pretrial photographic identification of the defendant. We have been unable to find any support for the undocumented assertion in the defendant’s brief that Bethune had an opportunity to view the robber, and we note that he was not called to testify at the trial. Daniell, who had extremely poor eyesight, could not make an identification, and told the police so immediately after the robbery. Although Daniell testifed at the trial, he was not asked to make an in-court identification of the defendant.

Gagliardi and Puglisi, however, both had an opportunity to view the robber as he ran from the store after the robbery. Each testified at trial that he had been shown photographs by the police in an unsuccessful attempt to elicit an identification of the robber. Gagliardi testified that the defendant looked similar to the person he had seen fleeing from the store, but that he could not be certain of an identification. Puglisi testified that he could have identified the man soon after the robbery, but did not think he could recognize him at the time of trial. He was not asked to make an in-court identification. Neither the identities of Gagliardi and Puglisi nor their inability to identify the defendant was revealed to the defendant prior to trial, despite requests for that information.

The record is unclear as to whether or not the photographic displays shown to Gagliardi and Puglisi contained a photograph of the defendant. If the defendant’s picture was not among those displayed, then obviously each man's failure to make an identification of the defendant would not be exculpatory. If the displays did contain a recognizable photograph of the defendant, however, the failure of the witnesses to identify the defendant might be exculpatory. In any case, both Gagliardi and Puglisi testified that they were unable to identify the defendant from photographs prior to trial or from viewing the defendant in person at the trial. Since the inability of these witnesses to make an identification of the defendant was disclosed at trial, this information, whether exculpatory or not, certainly was not suppressed.

“The rule of Brady v. Maryland, 373 U.S. 83, [83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963),] arguably applies in three quite different situations. Each involves the discovery, after trial, of information which had been known to the prosecution but unknown to the defense.” (Emphasis added.) United States v. Agurs, 427 U.S. 97, 103, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976). “Indeed the standard developed in Agurs can only sensibly be applied to the suppression of evidence throughout the trial . . . . ” United States v. McPartlin, 595 F.2d 1321, 1346 (7th Cir. 1979). “Evidence known to the defendant or his counsel, or that is disclosed, even if during trial, is not considered suppressed as that term is used in Brady. State v. Altrui, 188 Conn. 161, 177, 448 A.2d 837 (1982); State v. Perez, 181 Conn. 299, 309, 435 A.2d 334 (1980); State v. Grasso, 172 Conn. 298, 303, 374 A.2d 239 (1977).” State v. Dolphin, 195 Conn. 444, 455-56, 488 A.2d 812 (1985).

Here, the nonidentification information was disclosed at trial. Gagliardi and Puglisi each testified as to his inability to identify the defendant either from photographs or in person. Since the jury was fully informed of the lack of an identification by these witnesses, the defendant can complain only of the timing of the disclosure and has no basis for a claim of suppression. See Hudson v. Sowders, 510 F. Sup. 124, 126 (W.D. Ky. 1981), aff'd, 698 F.2d 1220 (6th Cir. 1982). Under these circumstances, the defendant bears the burden of proving that he was prejudiced by the state’s failure to make the information available to him at an earlier time. United States v. Stone, 471 F.2d 170, 173-74 (7th Cir. 1972), cert. denied, 411 U.S. 931, 93 S. Ct. 1898, 36 L. Ed. 2d 391 (1973).

The defendant did not develop before the trial court or on appeal any specific way in which he was prejudiced by not being furnished, prior to trial, with information as to the inability of the witnesses to make an identification. In his brief, the defendant baldly asserts that because he was not informed of the nonidentification prior to trial, he was deprived of the opportunity to make an adequate investigation and was therefore denied the effective assistance of counsel. He fails to specify, however, in what way the discovery of this information before trial would have aided the preparation and presentation of his defense. Both Gagliardi and Puglisi testified at trial and were available for cross-examination. Gagliardi was not cross-examined at all by defense counsel, and Puglisi was asked only six brief questions on cross-examination. No request for a continuance was made after either witness testified. “The appropriate standard to be applied in a case such as this is whether the disclosure came so late as to prevent the defendant from receiving a fair trial.” United States v. McPartlin, supra, 1346; State v. Packard, 184 Conn. 258, 277, 439 A.2d 983 (1981). After reviewing the record and the defendant’s broad claims of prejudice, we cannot conclude that his lack of information prior to trial concerning the witnesses’ inability to identify the defendant prejudiced him in any way or prevented him from obtaining a fair trial.

II

The defendant next claims that by permitting a witness, John Manley, to invoke his fifth amendment privilege against self-incrimination, the trial court deprived the defendant of his constitutional rights to due process of law and to confront the witnesses against him. He also claims that the trial court, aware of Manley’s intention to claim his fifth amendment privilege, improperly allowed the state to propound questions to Manley designed to elicit an invocation of the fifth amendment in the presence of the jury. This error, the defendant claims, violated his fifth and fourteenth amendment rights.

On November 21,1980, John Manley, who was then incarcerated at the New Haven correctional center, wrote a letter to Judge John Reynolds, the presiding judge of the criminal court in New Haven, stating that he, not Michael Reddick, had robbed the Jackson-Marvin Hardware Store on June 24,1980. On December 23,1980, Manley appeared with counsel at a hearing on a motion to dismiss the information against the defendant. Manley testified at the hearing that he had committed the robbery and had acted alone. The details Manley related, however, did not square with what witnesses to the robbery had told the police. It is obvious from the record that the state did not believe that Manley was the culprit, but believed that he was, in fact, attempting by perjured testimony to exculpate the defendant. The defendant’s motion to dismiss was denied.

At the defendant’s trial in September, 1981, Manley, who was then incarcerated at Somers and had other serious charges pending against him, was called as a witness by the state. Initially, in response to a question on direct examination, Manley again testified that he had robbed the hardware store. The state then moved the court to make him a hostile witness, to which the defendant objected, and the court excused the jury to hear counsel’s arguments. At this point, Manley, after consultation with his attorney, claimed that he was confused as to the question. The court summoned the jury, informed it that Manley had misunderstood the question and desired to withdraw his response, and instructed it to disregard the question and answer. The state’s attorney then asked Manley, “[I]sn’t that a fact that you did not commit that robbery?” The witness invoked his fifth amendment privilege in response to the question. The defendant voiced no objection.

Thereafter, the state, again without objection by the defendant, introduced the entire transcript of Manley’s testimony from the December 23,1980 hearing on the defendant’s motion to dismiss, wherein Manley had testified that he had committed the robbery. Manley then responded to questions propounded by both the prosecutor and defense counsel. He testified freely on a number of points, admitting that he had written the letter of November 21,1980, to Judge Reynolds and that he had previously testified that he had committed the robbery. Subsequent to his initial fifth amendment claim, Manley invoked the fifth amendment on eight other occasions, five times in response to questions asked by the assistant state’s attorney and three times in response to questions asked by defense counsel. When invoked, it was in response to questions which would require Manley to directly admit again that he had committed the robbery, of which would establish that he had committed perjury at the hearing on December 23, 1980.

The defendant claims that Manley had knowingly waived his privilege against self-incrimination by his letter to Judge Reynolds and his prior testimony at the hearing on December 23,1980, and that the trial court therefore erred in allowing Manley selectively to claim his privilege at the defendant’s trial. Despite an indication to the contrary in the defendant’s brief, the record is clear that the defendant did not raise this issue at trial. The defendant did not object at any time when Manley invoked his fifth amendment privilege in response to questions by either the state or the defense. Further, the defendant never requested that the trial court order Manley to testify fully, strike Manley’s prior testimony, or declare a mistrial on the ground that Manley had waived his fifth amendment rights. It appears that the defendant wanted Manley’s previous admissions of responsibility for the robbery to go to the jury and desired to maintain friendly relations with him while he was on the stand. Now, having been convicted, the defendant claims that it was error for the trial court to neglect to do what the defendant never requested it do, that is, find that Manley had waived his testimonial privilege and require him to respond to all questions.

“Contrary to the impression which seems to prevail in some quarters, it is not true that defense counsel in criminal cases may through neglect, inattention or as a trial strategy refrain from making proper objection or raising in the trial court any available constitutional defenses, confident that if the outcome of the trial proves unsatisfactory without making objections and taking exceptions and raising any available constitutional issue they may still prevail by assigning error or raising the constitutional issue for the first time on the appeal.” State v. Evans, 165 Conn. 61, 67, 327 A.2d 576 (1973); State v. Kurvin, 186 Conn. 555, 564, 442 A.2d 1327 (1982). “Only the most exceptional circumstances will save a claim, constitutional or otherwise, from the fatal consequences of a defendant’s failure to make a timely objection.” State v. Baker, 182 Conn. 52, 56, 437 A.2d 843 (1980). The defendant has suggested no exceptional circumstances to warrant departure from the general rule that limits appellate review of all issues, even constitutional issues, to those on which the trial court has had an opportunity to rule. Practice Book § 3063; Knight v. Bourbeau, 194 Conn. 702, 704 n.3, 485 A.2d 919 (1984); Cain v. Moore, 182 Conn. 470, 472, 438 A.2d 723 (1980), cert. denied, 454 U.S. 844, 102 S. Ct. 157, 70 L. Ed. 2d 129 (1981). Given the extent of the direct and cross-examination of Manley, and the fact that his pretrial testimony that he had committed the robbery was read in full to the jury, we cannot conclude that 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. We therefore decline to consider this claim further.

On a related issue, the defendant claims that the trial court erred in denying his motion for a mistrial, in which he alleged that the state knowingly and repeatedly asked questions of Manley designed to elicit an invocation of the witness’ fifth amendment privilege. In Namet v. United States, 373 U.S. 179, 83 S. Ct. 1151, 10 L. Ed. 2d 278 (1963), the United States Supreme Court addressed the issue of when a witness’ claim of his privilege not to answer results in reversible error. The court outlined two aspects of the issue, each suggesting a distinct ground of error. “First, some courts have indicated that error may be based upon a concept of prosecutorial misconduct, when the Government makes a conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege. . . . A second theory seems to rest upon the conclusion that, in the circumstances of a given case, inferences from a witness’ refusal to answer added critical weight to the prosecution’s case in a form not subject to cross-examination, and thus unfairly prejudiced the defendant.” Id., 186-87. The defendant bases his claim of error on both theories.

The record simply does not support the defendant’s claim under either theory. Although there is some indication that the assistant state’s attorney knew that Manley might attempt to invoke the fifth amendment if questioned directly about his involvement in the robbery, there is nothing in the record upon which to base an inference of prosecutorial misconduct. “[T]he prosecutor need not accept at face value every asserted claim of privilege, no matter how frivolous.” Namet v. United States, supra, 188. In this case the state might very well have believed, and indeed so indicated, that Manley would not be permitted to invoke his privilege against self-incrimination. The state reasoned, with some justification, that Manley had waived his testimonial privilege by testifying at the hearing on the defendant’s motion to dismiss. Id. Further, a review of the record reveals that it was difficult to predict which questions Manley would refuse to answer. Generally, he testified quite freely and his claim of privilege was exercised erratically throughout his testimony. Throughout some seventy-seven pages of trial transcript, Manley claimed his fifth amendment privilege a total of six times in response to questions by the state. On this record, we cannot conclude that “these few lapses, when viewed in the context of the entire trial, amounted to planned or deliberate attempts by the [state] to make capital out of [Manley’s] refusals to testify.” Id., 189.

Nor is this a case where a witness’ invocation of the fifth amendment lent critical weight to the state’s case, as where the prosecutor uses the assertion of the privilege by an accomplice or someone linked to the defendant’s crimes in order to build a case against the defendant. See Douglas v. Alabama, 380 U.S. 415, 85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965).

“A prosecutor or state’s attorney, in a criminal case, may not call anyone who, in any capacity, has become so involved in the defendant’s criminal activities as to be liable to prosecution for the same offense or for another offense growing out of the transaction from which the defendant’s alleged offenses arise, with a design or purpose of extracting a claim of privilege against self-incrimination.” State v. Moynahan, 164 Conn. 560, 586, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S. Ct. 291, 38 L. Ed. 2d 219 (1973). This rule is patently inapplicable to the present situation. The state, rather than claiming that Manley was liable to prosecution for the same or related crimes, maintained that Manley had nothing to do with the charged offense. Furthermore, both witnesses who had identified the defendant as the robber testified before the jury, upon questioning by the state, that they had viewed Manley and determined that he was not the perpetrator.

The defendant also claims that the trial court erred in failing to give a curative instruction concerning the effect on the defendant of Manley's invocation of the fifth amendment, although no such instruction was ever requested. Under these circumstances, we will not find error in the trial court’s failure, sua sponte, to take some affirmative action. Namet v. United States, supra, 190.

Ill

The defendant next claims that the trial court erred in denying his motion for a mistrial, grounded upon the state’s introduction of testimony that the defendant had been incarcerated prior to trial. The circumstances giving rise to this claim are as follows: Jill Harrison, a witness for the state, identified the defendant as the man who had committed the June 24,1980 robbery. She also testified that she was certain she had again seen the robber in the hardware store after the robbery, in October of 1980. From a subsequent witness* John Manley, the state elicited testimony that the defendant had been incarcerated during October of 1980, and therefore could not have been in the hardware store at that time. The defendant moved for a mistrial on the ground that mention of the defendant’s incarceration before the jury was a due process violation because it undermined the defendant’s presumption of innocence.

Not every reference to a defendant’s pretrial incarceration is grounds for a mistrial. State v. Hawthorne, 176 Conn. 367, 371-74, 407 A.2d 1001 (1978). The rule in this state is that a motion for a mistrial should be granted only as a result of some occurrence during trial of such a character that it is apparent to the court that because of it, an accused cannot have a fair trial and the entire proceeding is tainted. Id., 372. Furthermore, the trial court has wide discretion in passing upon a motion for a mistrial, and the defendant bears the burden of proving that the testimony was so prejudicial that the defendant was deprived of the opportunity for a fair trial. Id.

There is nothing sacrosanct about a defendant’s pretrial incarceration. As with a defendant’s prior criminal record; State v. Geyer, 194 Conn. 1, 10-13, 480 A.2d 489 (1984); or participation in other crimes; State v. Crosby, 196 Conn. 185, 190, 491 A.2d 1092 (1985); evidence of incarceration is admissible if its probative value outweighs its prejudicial effect. The testimony elicited by the state of the defendant’s incarceration was exculpatory and cast doubt on the identification testimony of an important prosecution witness. “[I]t is the duty of the state to ensure that all evidence tending to aid in ascertaining the truth be laid before the court, even though such evidence is not consistent with the prosecution’s contention that the accused is guilty.” State v. Brown, 169 Conn. 692, 696, 364 A.2d 186 (1975); Merrill v. Warden, 177 Conn. 427, 431, 418 A.2d 74 (1979).

The evidence of the defendant’s incarceration in October of 1980 was highly probative on the critical element in the case, the identification of the defendant. It is inconceivable that it not be brought to the jury’s attention. Since the information was properly before the jury, the trial court did not abuse its discretion by refusing to grant a mistrial because of its admission.

IV

Finally, the defendant claims that he is entitled to a new trial because the jury instructions given by the trial court improperly diluted the presumption of innocence and relieved the state of its burden to prove all the elements of the crime beyond a reasonable doubt, in violation of the defendant’s due process rights. Specifically, the defendant claims that the court’s instructions concerning circumstantial evidence and the right of the jury to draw inferences, when juxtaposed with its charge on intent, permitted the jury to infer and find proven the defendant’s intent, an essential element of the crime of robbery, by a fair preponderance of the evidence rather than beyond a reasonable doubt. We disagree.

It is axiomatic that the state is required to prove all the essential elements of the crimes charged beyond a reasonable doubt in order to obtain a conviction. In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). An instruction that dilutes the state’s burden, or places a burden on the defendant to prove his innocence, is unconstitutional. Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979).

It is well established, however, that individual instructions are not to be judged in artificial isolation from the overall charge. State v. Dolphin, 195 Conn. 444, 451, 488 A.2d 812 (1985); State v. Reid, 193 Conn. 646, 660, 480 A.2d 463 (1984); State v. Hines, 187 Conn. 199, 209, 445 A.2d 314 (1982). The whole charge must be considered from the standpoint of its effect on the jury in guiding them to a proper verdict; State v. Corchado, 188 Conn. 653, 660, 453 A.2d 427 (1982); State v. Williams, 182 Conn. 262, 269, 438 A.2d 80 (1980); State v. Piskorski, 177 Conn. 677, 746-47, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979); and not critically dissected in a microscopic search for possible error. State v. Harris, 172 Conn. 223, 226-27, 374 A.2d 203 (1977).

In this case, the trial court instructed the jury on at least twelve occasions that it was the state's burden to prove all the elements of the crimes charged, including intent, beyond a reasonable doubt. The court also informed the jury several times that the defendant did not have to prove his innocence, and that it was for the state to establish his guilt. The court repeated its instructions on the state’s burden to prove intent beyond a reasonable doubt in charging the jury on the elements of assault. It was thus made abundantly clear to the jury that the burden of proof as to every element of the offenses charged was on the state, and that this burden had to be satisfied beyond a reasonable doubt. On this record, it is not reasonably possible that the jury was misled by the alleged errors in the court’s instructions. State v. Orsini, 187 Conn. 264, 276-77, 445 A.2d 887, cert. denied, 459 U.S. 861, 103 S. Ct. 136, 74 L. Ed. 2d 116 (1982); State v. Mason, 186 Conn. 574, 586-87, 442 A.2d 1335 (1982); State v. Ruiz, 171 Conn. 264, 273, 368 A.2d 222 (1976); State v. Rose, 169 Conn. 683, 687-88, 363 A.2d 1077 (1975).

The defendant claims that a case recently decided by the United States Supreme Court, Francis v. Franklin, 471 U.S. 307, 105 S. Ct. 1965, 85 L. Ed. 2d 344 (1985), requires a different result. We disagree. In Francis, the United States Supreme Court held that “[b]ecause a reasonable juror could have understood the challenged portions of the jury instruction . . . as creating a mandatory presumption that shifted to the defendant the burden of persuasion on the crucial element of intent, and because the charge read as a whole does not explain or cure the error . . . the jury charge does not comport with the requirements of the Due Process Clause.” Id., 1977. In that case, however, the jury was specifically instructed that “ ‘[a] person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts, but the presumption may be rebutted.’ ” Id., 1972. Here the defendant does not claim that the burden of proof was shifted, but merely that the state’s burden was watered down. That defect, if it existed, was cured by the court’s repeated correct instructions. Furthermore, in Francis v. Franklin, supra, the defendant’s sole defense to the charge of malice murder, a capital offense in Georgia, where he was tried, was a lack of the requisite intent to kill. Id., 1969. In the case before us, intent was not a disputed element; identification was the only contested issue. The actions of the robber and his display of what appeared to be a sawed-off shotgun dispelled any notion that he might have been in the Jackson-Marvin Hardware Store shopping for nuts and bolts.

There is no error.

In this opinion the other judges concurred.

       “[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.”
      “[General Statutes] Sec. 53a-61a. assault of a victim sixty or older in the third degree, class a misdemeanor, (a) A person is guilty of assault of a victim sixty or older in the third degree, when he commits assault in the third degree under section 53a-61 and the victim of such assault has attained at least sixty years of age or is blind or physically disabled, as defined in section 1-lf.
      “(b) No person shall be found guilty of assault in the third degree and assault of a victim sixty or older in the third degree upon the same incident of assault but such person may be charged and prosecuted for both such offenses upon the same information.
      “(c) Assault of a victim sixty or older in the third degree is a class A misdemeanor.”

       The defendant raised a fifth claim of error concerning the trial court’s denial of his motion in limine regarding the admission at trial of evidence of his prior convictions. This claim was abandoned at oral argument.

       The jury’s note read as follows: “The only evidence we feel is of concrete value is the identifications by the two witnesses as mentioned before and we disagree on the credibility of this identification. Is the identification by photo of the Defendant by witnesses sufficient evidence to convict?”

       The court’s instructions on circumstantial evidence were as follows: “Now, proof beyond a reasonable doubt does not mean that you must have direct evidence supporting a fact. You may apply the rule of circumstantial evidence. This rule involves the offering of evidence of facts from which you’re asked to infer the existence of another fact or a set of facts.
      “Such an inference may be made provided two elements in the application in this rule are satisfied. First, that the fact from which you’re asked to draw the inference has itself been proven beyond a reasonable doubt and, secondly, that the inference asked to be drawn is not only logical and reasonable, but it is strong enough so that you can find that it is more probable than not that the fact to be inferred is true.
      “It is your right to draw inferences if you conclude that the facts you find proven reasonably establish other facts by reason and logic and are not the result of speculation, surmise or guesswork. If from the facts you find proven you reasonably do infer other facts, you may then use the facts so inferred as a basis for a further inference that other facts exist, including facts going to establish the guilt or innocence of the defendant.”

       In charging the jury on robbery, the court gave the following instruction on the intent element of that offense: “Now, the intent referred to in that, under that provision, in effect, I instruct you that the intent ordinarily may not be proved directly and usually must be established by circumstantial evidence. This is because there exists no way of scrutinizing with certainty the state of mind of a human being, but you may infer intent from the surrounding circumstances.
      “What an individual does or fails to do, whether it be physical, verbal or written conduct, may be indicative of intent or lack of intent to commit a criminal offense. You may consider all other facts and circumstances, all of the credible evidence properly before you in this case which may aid in determining the state of mind of the defendant.
      “Ultimately it is for you and you alone as members of the jury to decide from the evidence believed by you whether the state has proved beyond a reasonable doubt that the defendant possessed at the time and place of this alleged commission of the offense charged the requisite intent to have committed the crime of larceny at that time and place.”

       In addition, the defendant claims that two other statements made by the court during its jury instructions contributed to the alleged dilution of the state’s burden of proof. In charging the jury on the presumption of innocence and explaining the meaning of the term “reasonable doubt,” the court stated: “The presumption of innocence applies to all the elements necessary to constitute the offense charged, if there is more than one element and this shall be defined for you as to this case in a few moments. This presumption of innocence, however, does not have the effect of evidence itself. The only effect it has is to place upon the state the burden of establishing the element or elements necessary to prove guilt beyond a reasonable doubt.
      “Now, a reasonable doubt is not a doubt that is raised by the questioning simply for the sake of a doubt, nor is it a surmise or a guess or speculation or a doubt not founded upon the evidence. It is not hesitation or arising from feelings of sympathy or pity for the accused or his family. A reasonable doubt is one that is based upon reason and which grows out of the evidence or lack of evidence in the case.
      “A reasonable doubt is one that is reasonable in the light of all the evidence and one that is honestly entertained after a thorough evaluation, after careful examination of all the evidence in the case; an absolute demonstration of guilt is not required to convict. The demonstration of guilt need be only beyond a reasonable doubt; one that a reasonable person can reasonably entertain after a fair evaluation of all the evidence.” (Emphasis added.) The defendant apparently objects to the court’s use of the word “only” in explaining the effect of the presumption of innocence and defining the state’s burden of proof.


text:
    Lake Williams Beach Association et al. v. Gilman Brothers Company et al.
    (11995)
    Peters, C. J., Dannehy, Callahan, Ment and M. Hennessey, Js.
    Argued June 11 —
    decision released August 6, 1985

      Peter B. Cooper, with whom were Frank B. Cochran, and, on the brief, Linda Francois, for the appellants (plaintiffs).

      Edmund W. OBrien, with whom was George Gilman, for the appellees (defendants).
   Peters, C. J.

The dispositive issue in this appeal is whether lowering the level of an artificial lake to compensate for the inadequate design of a dam constitutes a reasonable use of water rights. The plaintiffs, owners of real property fronting on the shore of Lake Williams in Lebanon, brought suit to enjoin the defendants, a dam owner and its lessee, from unreasonably drawing down the lake. The trial court held for the defendants and the plaintiffs appealed. We find no error.

The facts underlying this appeal are largely undisputed. The dam that created Lake Williams was erected in the mid-nineteenth century to supply water power for downstream industrial use. The dam consists of a 280 foot-long earthen embankment, into which is set a 39 foot-long stone masonry spillway. The distance between the top of the spillway and the top of the dam (the freeboard) is 1.8 feet. The level of the water in Lake Williams is controlled by opening and closing a 30 inch diameter steel pipe that runs through the spillway wall. The mechanism that operates this “gate” is located in a gatehouse atop the spillway. The named defendant, the Gilman Brothers Company (the defendant), is the successor in title to the dam site, the dam, and the right to impound and flow the waters of Lake Williams. Gilman Brothers uses this water at its downstream plastics factory for cooling and fire protection. When surplus water is available, the defendant Bozrah Light & Power Company uses it to generate electricity pursuant to a lease agreement with the defendant Gilman Brothers.

Lake Williams is very shallow. It has a surface area of approximately 272 acres when full, yet it has a maximum depth of ten feet and an average depth of four and one-half feet. The lake was completely surrounded by undeveloped woodland until 1950, when construction of houses on lots adjacent to the lake began. The individual plaintiffs are owners of lakefront properties in this residential development. The named plaintiff is an association of development residents and holds title in its own right to two lakefront beach lots. The plaintiffs use the lake for fishing, boating, swimming and ice skating.

Before 1979, the defendant kept the lake as full as possible in the summer to ensure an adequate reserve of water for its factory, and the parties’ uses of the lake were compatible. The level of the lake was relatively stable from March through Labor Day, after which it was normal for the water to be drawn down approximately one foot.

In 1976, as part of the United States army corps of engineers national dam inspection program, the engineering firm of C.E. Maguire, Inc., inspected the dam at Lake Williams. In its October, 1978 report, Maguire stated that the dam could not withstand the prescribed flood test because its spillway capacity was seriously inadequate. The report concluded that a test flood would overtop the dam by 2.31 feet, and recommended that Gilman Brothers engage an engineer experienced in the design of earth dams to make a detailed study of the dam and institute corrective measures. In the interim, the defendant was told that the lake “should be lowered and maintained at a level below the spillway crest to provide flood storage for storm events.” An accompanying table showed that 4.11 feet of free-board would be necessary to pass the test flood. The department of environmental protection (DEP), which has jurisdiction over dams pursuant to General Statutes §§ 22a-401 through 22a-410, requested the defendant to implement these recommendations by January 1, 1980.

Accordingly, Gilman Brothers hired the engineering firm of Buck & Buck to study the dam. In its interim February, 1980 report, Buck & Buck confirmed that the spillway capacity was inadequate. Buck & Buck issued its final report on March 5, 1982. It recommended lowering the level of the spillway by three feet, which would increase the available freeboard to 4.8 feet at an approximate cost of $25,500. Alternate remedies of lengthening the spillway or adding an emergency spillway were discussed and rejected. The defendant was also told to keep the level of the lake approximately three feet below the spillway until the spillway itself was lowered.

On May 17,1982, the DEP determined that the dam could not be classified as safe and ordered the defendant to repair or remove it. See General Statutes § 22a-402. The DEP order provided in pertinent part: “The repairs or alterations to be made should include . . . 1. Provide spillway capacity adequate to discharge [the test flood] without overtopping the embankments.” The DEP did not specify how its order should be implemented.

In July, 1979, the lake was drawn down to three and one-half feet below the spillway, three feet below its normal summertime level. In order to facilitate Buck & Buck’s inspection of the dam, the lake was almost completely drained in April, 1980. Between April, 1980, and March, 1982, the level of the lake fluctuated widely. Since the latter date, the lake has, with one notable exception, been maintained at approximately three feet below the top of the spillway. During a major rainstorm in June, 1982, the level of the lake rose from twenty-nine inches below the spillway to six inches above the spillway before cresting.

Since July, 1979, there has often been insufficient water in the lake for the recreational activities previously enjoyed by the plaintiffs. Large expanses of mud have been exposed, weed growth in the lake has increased and the market value of the plaintiffs’ property has significantly declined.

The plaintiffs filed suit on September 8, 1981. The first count of their complaint alleged that by drawing down the lake, the defendants violated the plaintiffs’ common law riparian rights. The second count claimed an impairment of the public trust in the waters of the lake. See General Statutes §§ 22a-15, 22a-16.

The trial court ruled against the plaintiffs on both counts. It found that while the plaintiffs owned land abutting the lake, they had failed to allege or prove ownership of any portion of the lake bed. The court therefore concluded, on the first count, that the plaintiffs had no riparian rights in the waters of Lake Williams. The trial court held that recovery under the second count was barred by the necessity of maintaining the lake at the lower level. On appeal, the plaintiffs claim that the trial court erred in holding that they have no riparian rights and in finding that the lake was drawn down out of necessity.

The plaintiffs’ claims are defeated by the factual findings of the trial court. Even if it is assumed, arguendo, that the plaintiffs are riparian owners, they cannot prevail on the first count of their complaint. It is settled law that “[e]ach riparian owner is limited to a reasonable use of the waters, with due regard to the rights and necessities of other such owners.” Harvey Realty Co. v. Wallingford, 111 Conn. 352, 359, 150 A. 60 (1930); see Agawam Canal Co. v. Edwards, 36 Conn. 476, 497-98 (1870); Wadsworth v. Tillotson, 15 Conn. 366, 373, 39 A.D. 391 (1843); see generally 7 Clark, Waters and Water Rights (1976) § 611; 4 Restatement (Second), Torts §§ 850, 850A (1977). In balancing competing claims to the waters of an artificial lake, we have held that riparian owners may prevent only the unreasonable lowering of the lake by a dam owner. Labbadia v. Bailey, 152 Conn. 187, 190, 194, 205 A.2d 377 (1964); DeWitt v. Bissell, 77 Conn. 530, 535, 60 A. 113 (1905); see also Brown v. Ellingson, 224 So. 2d 391, 393-94 (Fla. App. 1969); Taft v. Bridgeton Worsted Co., 237 Mass. 385, 388-90, 130 N.E. 48 (1921); Stidham v. Algonquin Lake Community Assn., 133 Mich. App. 94, 97-99, 348 N.W.2d 46 (1984); 7 Clark, Water and Water Rights (1976) §§ 615.2, 633. Whether a competing use is reasonable is a question of fact that depends on the specific circumstances of each case. Hazard Powder Co. v. Somersville Mfg. Co., 78 Conn. 171, 177, 61 A. 519 (1905); Mason v. Hoyle, 56 Conn. 255, 262, 264, 14 A. 786 (1888).

The factual record developed in this case compels the conclusion that the defendants’ reduction of the level of Lake Williams is reasonable. Two engineering firms independently recommended the reduction and the trial court specifically found those recommendations to be warranted, especially in light of the rapid rise of the lake during the June, 1982 storm to within inches of overtopping the dam. The trial court further found that the defendants are maintaining the lower level because of the engineers’ recommendations. While the plaintiffs have attacked these findings, they have not shown them to be clearly erroneous in light of the evidence adduced at trial. See Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). In sum, even if the plaintiffs have common law rights in the waters of Lake Williams, those rights were not violated by the defendants’ reasonable exercise of their own riparian interests.

The plaintiffs’ contention that the trial court erred in finding no impairment of the public trust in the lake is likewise refuted by the trial court's findings of fact. It is an affirmative defense to a charge of impairment that, “considering all relevant surrounding circumstances and factors, there is no feasible and prudent alternative to the defendant’s conduct and that such conduct is consistent with the reasonable requirements of the public health, safety and welfare.” General Statutes § 22a-17. Although the defendants did not specially plead this defense; see Manchester Environmental Coalition v. Stockton, 184 Conn. 51, 63, 441 A.2d 68 (1981); the evidence relating to this issue was admitted without objection and the defect in pleading is therefore deemed to have been waived. Damora v. Christ-Janer, 184 Conn. 109, 112, 441 A.2d 61 (1981); Royal Homes, Inc. v. Dalene Hardwood Flooring Co., 151 Conn. 463, 466, 199 A.2d 698 (1964). The trial court explicitly held that the affirmative defense had been proved, and this conclusion is amply supported by the record.

It is unfortunate that the plaintiffs, through no fault of their own, must suffer because of outdated nineteenth century engineering. The defendants, however, are equally blameless for the current state of affairs. The plaintiffs must seek a remedy elsewhere.

There is no error.

In this opinion the other judges concurred.

       Lawrence Gilman, president of the Gilman Brothers Company, was also sued individually.

       General Statutes § 22a-402 provides in relevant part that the commissioner of the department of environmental protection “shall investigate and inspect or cause to be investigated and inspected all dams or other structures which, in his judgment, would, by breaking away, cause loss of life or property damage. ... If, after any inspection described herein, the commissioner finds any such structure to be in an unsafe condition, he shall order the person, firm or corporation owning or having control thereof to place it in a safe condition or to remove it . . . .”

       Proceedings are now pending before the DEP on the defendants’ application for a permit to remove the dam. See General Statutes § 22a-403. The plaintiffs are represented at these proceedings. See General Statutes § 22a-408.

       “[General Statutes] Sec. 22a-15. declaration of policy. It is hereby found and declared that there is a public trust in the air, water and other natural resources of the state of Connecticut and that each person is entitled to the protection, preservation and enhancement of the same. It is further found and declared that it is in the public interest to provide all persons with an adequate remedy to protect the air, water and other natural resources from unreasonable pollution, impairment or destruction.”
      “[General Statutes] Sec. 22a-16. action for declaratory and equitable relief against unreasonable pollution. The attorney general, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity may maintain an action in the superior court for the judicial district wherein the defendant is located, resides or conducts business, except that where the state is the defendant, such action shall be brought in the judicial district of Hartford-New Britain, for declaratory and equitable relief against the state, any political subdivision thereof, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity, acting alone, or in combination with others, for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction.”

       The trial court issued its memorandum of decision on December 29,1982. On January 5, 1983, the plaintiffs filed a motion for a new trial, seeking to introduce additional evidence on the issue of whether they owned land beneath the lake. The motion was denied and the plaintiffs included this denial as a claim of error on appeal. Our disposition of the plaintiffs’ other contentions obviates any need to address this issue.