author: Glass, J.

text:
    State of Connecticut v. Kevin Usry
    (12799)
    Peters, C. J., Healey, Glass, Covello, and Hull, Js.

      Argued October 1
    decision released November 17, 1987

      Gerard A. Smyth, assistant public defender, with whom was Patrick J. Culligan, assistant public defender, for the appellant (defendant).

      Susan C. Marks, deputy assistant state’s attorney, with whom were John M. Massameno and Herbert E. Carlson, Jr., assistant state’s attorneys, for the appellee (state).
   Glass, J.

The defendant, Kevin Usry, was arrested on October 22,1982, for murder and was subsequently indicted for capital felony in violation of General Statutes § 53a-54b (7), felony murder in violation of General Statutes § 53a-54c, and murder in violation of General Statutes § 53a-54a. The defendant was tried by a jury, found guilty on all three counts, and sentenced to three concurrent life terms of imprisonment on May 6, 1985. He now appeals that conviction.

The jury could reasonably have found the following facts. The victim was discovered dead in her New Britain apartment on the morning of September 8, 1982. She was found naked from the waist down with bloody garments pulled over her head and with a white fluid-like substance around her vaginal area. The police had been notified by a neighbor, Peter Melinoskas, who had become concerned after observing an open window with a metal folding chair placed below it and noticing that the victim’s car was parked in the driveway. After yelling through the open window and receiving no response, Melinoskas entered the building through an open basement door, and entered the victim’s apartment through the door which was slightly ajar. He found the victim’s body and left the house to call the police.

Both the New Britain police department and the state police conducted the investigation. A videotape was taken of the crime scene and both latent and patent fingerprints were found. Some of these prints were identified to be those of the defendant. The cause of the victim’s death was determined to be depressed compound skull fractures. A brick was found at the scene which was consistent with the type of instrument that caused the victim’s injuries. Forensic testing indicated that sexual intercourse had occurred at a time close to the victim’s death, and body fluid tests indicated that intercourse had occurred between a man with type A blood and a woman with either type 0 or type A blood. The victim’s blood type was 0, and it was later learned that the defendant’s blood type was A. A combing of pubic hair from the victim, a Caucasian, revealed the presence of negroid pubic hair. The defendant is black. A warrant was issued for the defendant’s arrest and he was arrested on October 22, 1982, and taken into custody. Prior to the defendant’s arrest the police learned from New Britain High School officials that he was a special education student. While in custody the defendant made inculpatory statements.

The defendant appeals, claiming that: (1) the trial court erred in failing to suppress the inculpatory statements made to the police; (2) the trial court’s instructions pertaining to capital felony were erroneous; and (3) the trial court erred in rendering judgment on the murder conviction after the jury returned guilty verdicts on both the capital felony and felony murder counts of the indictment. We find no error as to the first claim, harmless error as to the second claim, and error as to the third claim.

I

The defendant’s first claim is that the trial court erred in denying his motion to suppress statements obtained in violation of his rights under the fourth, fifth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. Specifically, the defendant claims that: (1) his statements were obtained without a proper waiver of the rights afforded him under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); (2) the police failed to honor his invocation of his right to remain silent; (3) the statements were involuntary; and (4) the statements were the fruit of an illegal arrest because the arrest warrant was insufficient on its face in that it was not supported by probable cause. We conclude that the trial court did not err in allowing the defendant’s incriminating statements to be admitted into evidence at his trial.

The following additional facts are relevant to our consideration of the motion to suppress. The defendant was arrested at his home on October 22,1982, by members of the New Britain police department. He was advised of his Miranda rights inside the house and again in the police car. The defendant indicated at both times that he understood his rights. The defendant was transported to the police station where he was booked, placed in an interview room and once again advised of his Miranda rights. The police officers read the defendant a standard waiver form, handed the form to him to read and asked him if he understood the form. The defendant replied, “I know all that shit,” and signed the waiver portion of the form.

The defendant was questioned as to his whereabouts on the night of the murder. He was noncommittal and said that the only information he had was what he read in the newspaper. At some point during this interview, the defendant requested to make a telephone call to his mother and this request was granted. When asked if he wished to make a statement, the defendant replied that “he had nothing to make a statement about.” The officers asked the defendant to consider the situation and concluded the interview and exited the room.

The officers reentered the interview room one hour later, and asked the defendant if he wished to use the toilet or have something to eat. The defendant said he did not. The officers also asked whether he remembered his rights, which he said he did, and again the officers read the defendant his Miranda rights. After some general questioning, and denial of involvement by the defendant, an officer asked him if he thought the police believed that “the tooth fairy picked him up, flew him around New Britain and placed his hands all over my crime scene.” The defendant responded with exculpatory statements. He stated that he was walking on Park Street on the night of the murder, heard a woman scream, went to investigate, climbed a chair to look through a window and saw a man and a woman fighting. The defendant next stated that the man saw him and threw something at him, causing him to fall off the chair and lose consciousness. He then volunteered that “someone must have put my fingerprints on the brick.” The defendant had not yet been informed that a brick had been used in the assault. At this point the defendant agreed to make a statement.

The defendant next indicated that he wished to speak with Robert Smith, who previously had been his public defender. After having been informed by the police that Smith was no longer a public defender, the defendant agreed to make a statement without Smith’s presence. The officers again informed the defendant of his rights, read him the waiver form and began the process of taking a formal statement. At the end of the interview the officer who took the statement asked the defendant to read it and asked whether he wanted to make any changes. The defendant responded that the statement was “all right the way it was.” When asked to sign a second waiver form and the statement, however, he refused. The defendant stated that he was a special education student and indicated for the first time that he did not understand his constitutional rights and that he had trouble reading.

A

The defendant’s first claim is that the trial court should have suppressed his incriminating statements because the police failed to obtain a knowing and intelligent waiver of his Miranda rights. The defendant bases this claim on the following assertions: (1) that although he signed a waiver form prior to the first interview, he was uncooperative and was mentally incompetent to waive those rights knowingly and intelligently; and (2) that the incriminating statement was given in a subsequent interview, without a new waiver having been signed. We are unpersuaded.

“The state has the burden of proving by a preponderance of the evidence that the defendant knowingly and intelligently waived his Miranda rights. State v. Hernandez, 204 Conn. 377, 395, 528 A.2d 794 (1987); State v. Chung, 202 Conn. 39, 48, 519 A.2d 1175 (1987); State v. Toste, 198 Conn. 573, 579-80, 504 A.2d 1036 (1986). The waiver must be made voluntarily and ‘with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it.’ Moran v. Burbine, 475 U.S. 412, 421,106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986).” State v. Boscarino, 204 Conn. 714, 743, 529 A.2d 1260 (1987). “ ‘[T]he question of waiver must be determined on “the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” Johnson v. Zerbst, 304 U.S. 458, 464 [58 S. Ct. 1019, 82 L. Ed. 1461 (1938)].’ North Carolina v. Butler, [441 U.S. 369, 374-75, 99 S. Ct. 1755, 60 L. Ed. 2d 286 (1979)].” State v. Toste, supra, 580.

In Tosté, we set forth factors that may be considered by the court in determining whether an individual had the capacity to understand the Miranda warnings, including: “the defendant’s experience with the police and familiarity with the warnings; Fare v. Michael C., [442 U.S. 707, 726, 99 S. Ct. 2560, 61 L. Ed. 2d 197, reh. denied, 444 U.S. 887, 100 S. Ct. 186, 62 L. Ed. 2d 121 (1979)]; State v. Alfonso, [195 Conn. 624, 630-31, 490 A.2d 75 (1985)]; People v. Medina, 71 Ill. 2d 254, 259, 375 N.E.2d 78 (1978); his level of intelligence, including his IQ; Cooper v. Griffin, 455 F.2d 1142,1145 (5th Cir. 1972); State v. Benoit, 440 So. 2d 129,131 (La. 1983); Matter of Welfare of S.W.T., 277 N.W.2d 507, 512-13 (Minn. 1979); his age; Fare v. Michael C., supra; Matter of D.A.S., 391 A.2d 255, 258 (D.C. App. 1978); his level of education; Davis v. North Carolina, 384 U.S. 737, 742, 86 S. Ct. 1761,16 L. Ed. 2d 895 (1966); State v. Harris, 188 Conn. 574, 581, 452 A.2d 634, cert. denied, 460 U.S. 1089, 103 S. Ct. 1785, 76 L. Ed. 2d 354 (1982); his vocabulary and ability to read and write in the language in which the warnings were given; see State v. Alfonso, supra; State v. Frazier, [185 Conn. 211, 226, 440 A.2d 916 (1981), cert. denied, 458 U.S. 1112,102 S. Ct. 3496, 73 L. Ed. 2d 1375 (1982)]; intoxication; see State v. Stankowski, 184 Conn. 121,134-35, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981); his emotional state; State v. Harris, supra, 582; and the existence of any mental disease, disorder or retardation. Henry v. Dees, 658 F.2d 406, 411 (5th Cir. 1981); People v. Watson, 75 Cal. App. 3d 384, 397, 142 Cal. Rptr. 134 (1977).” State v. Toste, supra, 580-81; see also State v. Hernandez, supra, 396-97; State v. Chung, supra, 49-50.

In support of his argument that he was incompetent to waive his Miranda rights, the defendant argues that in light of his uncooperativeness with the police after signing the waiver, coupled with his age, and his level of intelligence, the court should have found that he had not knowingly and intelligently waived his rights. The record, however, reveals that the defendant had previously been exposed to the criminal justice system, which indicates that despite his young age and low IQ, he had experience upon which to base his decision to sign the waiver form. The defendant also exercised his constitutional rights by requesting a specific attorney and by requesting permission to make a telephone call, which indicates that he understood his rights and invoked them when he chose to do so. Furthermore, the defendant appeared able to read the waiver form and a written copy of the Miranda rights during interrogation and used his finger to follow the words on the page in one instance while reading. A police officer testified that the defendant “aptly read” the documents placed before him. When asked in the first instance what he knew about the homicide, the defendant replied that he only knew “what he had read in the papers.” It was only when asked to sign the statement that the defendant claimed he had difficulty reading and that he did not understand his constitutional rights because he was a special education student. Moreover, at all times prior to his refusal to sign the second waiver form, when asked if he understood his rights the defendant responded that he did. At one point he even responded, “yeah, I know all that shit.”

Finally, the fact that the defendant refused to sign the statement or a second waiver form does not render his statement inadmissible. We have recently stated that “[w]hile the refusal to sign a written waiver or written statement is a ‘relevant factor in determining whether an individual knowingly, intelligently, and voluntarily waived his privilege’; State v. Derrico, [181 Conn. 151, 165, 434 A.2d 356, cert. denied, 449 U.S. 1064,101 S. Ct. 789, 66 L. Ed. 2d 607 (1980)]; it is not controlling and ‘may be outweighed by affirmative conduct indicative of a knowingly and intelligently made decision not to remain silent.’ State v. Harris, supra, 581.” State v. Shifflett, 199 Conn. 718, 733, 508 A.2d 748 (1986). The defendant offered statements indicating that he understood his rights and expressly agreed to make an oral, although not written statement. This constitutes “affirmative conduct” evidencing waiver, which we find persuasive despite the defendant’s refusal to sign the waiver form.

The defendant next claims that the written waiver is inapplicable to the statements made by him because the waiver applies only to statements made in the first interview. The defendant, relying on State v. Williams, 190 Conn. 104, 459 A.2d 510 (1983), argues that the ninety minute break in interrogation requires the signing of a new waiver. In Williams the defendant did not expressly waive his rights, but refused to answer questions, and eventually made inculpatory statements after continued police interrogation. In the present case, however, the defendant signed a written waiver form and orally agreed to make a statement. The ninety minute break in questioning does not invalidate the waiver, and fresh warnings were given to the defendant although they were not necessary. See 1W. Lafave & J. Israel, Criminal Procedure (1984) § 6.8 (b). Thus, we conclude that the trial court did not err in its finding that the defendant effectively waived his Miranda rights.

B

The defendant’s second claim is that the trial court should have suppressed his incriminating statements because the police violated his Miranda rights by continuing to question him after he had invoked his right to remain silent. The defendant bases this claim on the fact that during the interview, when asked if he wished to make a statement, the defendant stated that he “had nothing to make a statement about.” As the defendant notes, the “pivotal question” is whether he invoked his right to remain silent with these words, or at any other time prior to making the inculpatory statements. If he did not invoke the right to remain silent, we do not reach the issue of whether the defendant’s right to cut off questioning was “scrupulously honored,” as required by Michigan v. Mosley, 423 U.S. 96, 104, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975). After reviewing the circumstances leading to the defendant’s statement, we find that he did not invoke the right to remain silent.

Review of the record indicates that the defendant understood his constitutional rights and clearly invoked them when he chose to do so. His remark that he “had nothing to make a statement about” was in response to the police inquiry whether he wanted to make a statement and was consistent with his stance that he was uninvolved in the crime. The statement simply does not rise to the level of an invocation of the right to remain silent. The defendant did not indicate that he was opposed to speaking with the police, and we decline to construe his statement to mean this. Rather, his statement was one in a series of exculpatory statements proffered by the defendant to clear himself from suspicion. One court has recently noted that where the "petitioner made no reference whatsoever to the Fifth Amendment, but maintained steadfastly that he simply had no information to give police authorities . . . [t]his conduct . . . cannot rationally be construed as an invocation of his Fifth Amendment privilege.” Damiano v. Gaughan, 592 F. Sup. 1222,1226 (D. Mass. 1984); State v. Pacheco, 481 A.2d 1009,1015 (R.1.1984). The facts here resemble a situation where a defendant "expresses an unwillingness or inability to respond to a particular inquiry (e.g., ‘you’ve done asked me a question I can’t answer’) [which] is not a general claim of the privilege.” 1 W. Lafave & J. Israel, supra, § 6.9 (e), citing Taylor v. Riddle, 563 F.2d 133 (4th Cir. 1977), cert. denied, 434 U.S. 1020, 98 S. Ct. 744, 54 L. Ed. 2d 768 (1978).

C

The defendant’s third claim is that his incriminating statements were involuntary. In support of this claim, he argues that given his young age and limited intelligence, his will was overborne by the police when they confronted him with the fingerprint evidence. We are unpersuaded.

"The use of an involuntary confession in a criminal trial violates due process of law. State v. Smith, 200 Conn. 465, 475, 512 A.2d 189 (1986); State v. Shifflett, [supra]. The trial court must determine the voluntariness of a confession based on the totality of the circumstances. State v. Smith, supra, 477; State v. DeAngelis, 200 Conn. 224, 235, 511 A.2d 310 (1986); State v. Falby, 187 Conn. 6,16, 444 A.2d 213 (1982). In this determination, the central criterion is whether police conduct ‘was such as to overbear [the defendant’s] will to resist and bring about confessions not freely self-determined . . . . ’ Rodgers v. Richmond, 365 U.S. 534, 544, 81 S. Ct. 735, 5 L. Ed. 2d 760 (1961); State v. Smith, supra; State v. Shifflett, supra.” State v. Boscarino, supra, 740.

Review of the record reveals no evidence indicating that the defendant’s will was overborne. The defendant was eighteen years old and had previously been exposed to the criminal justice system. Moreover, the defendant was repeatedly advised of his rights prior to making the incriminating statement and was asked if he understood them. Although a special education student and of “dull normal” intelligence, the defendant indicated through his conduct that he could comprehend the meaning of the Miranda warnings. As discussed above, he exercised his rights when he chose to do so. Nothing in the record indicates that his intellectual deficiency stripped him of his free will. Nor did the police conduct affect the voluntariness of his statements. The police did not coerce or trick the defendant when they confronted him with the fingerprint evidence. Rather, the police accurately informed the defendant of the information they possessed, and he chose to make a statement. See Williams v. Ohio, 547 F.2d 40 (6th Cir. 1976); Turner v. State, 76 Wis. 2d 1, 250 N.W.2d 706 (1977). Finally, as indicated in the record, the defendant’s physical needs were provided for, he had an opportunity to telephone his mother and he did not appear to be under the influence of alcohol or narcotics.

D

The defendant’s final claim on the suppression issue is that his incriminating statements were the fruit of an illegal arrest because the warrant for his arrest lacked probable cause. We agree with the trial court’s finding that the arrest warrant was supported by an affidavit sufficient to establish probable cause for the defendant’s arrest and therefore conclude that the trial court did not err in denying his motion to suppress.

“The validity of an arrest warrant depends upon whether the application for the warrant and the accompanying affidavit establish probable cause to believe that: (1) a crime has been committed; and (2) the person to be arrested committed that crime. General Statutes § 54-2a (a) (1); Practice Book § 593; State v. Daley, 189 Conn. 717, 720, 458 A.2d 1147 (1983); State v. DeChamplain, 179 Conn. 522, 529, 427 A.2d 1338 (1980); 1 LaFave, Search and Seizure (1978) § 3.7. The affidavit must recite sufficient facts so that the judicial officer who issues the warrant can, relying solely on the information thus brought to his or her attention, make an independent determination that probable. cause exists as to each element of every crime charged. U.S. Const., amends. IV and XIV; Conn. Const., art. I, § 7; Illinois v. Gates, 462 U.S. 213, 238-39, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983); Whiteley v. Warden, 401 U.S. 560, 565 n.8, 91 S. Ct. 1031, 28 L. Ed. 2d 306 (1971); State v. Bember, 183 Conn. 394, 409-10, 439 A.2d 387 (1981); State v. Jackson, 162 Conn. 440, 443, 294 A.2d 517, cert. denied, 409 U.S. 870, 93 S. Ct. 198, 34 L. Ed. 2d 121 (1972).” State v. Heinz, 193 Conn. 612, 616-17, 480 A.2d 452 (1984). We note that deference is to be given to the decision of the magistrate who issued the warrant. The role of this court is to decide “whether the evidence viewed as a whole provided a ‘substantial basis’ for the Magistrate’s finding of probable cause . . . Massachusetts v. Upton, 466 U.S. 727, 732-33, 104 S. Ct. 2085, 80 L. Ed. 2d 721 (1984); State v. Heinz, supra, 618.

The affidavit before the issuing judge set forth the following facts: (1) on the morning of September 8, 1982, the body of the victim, a white female, was found naked from the waist down on the bedroom floor of her first floor apartment, with fluid-type substance present around her vaginal area; (2) a metal folding chair was found on that morning, at the base of the victim’s kitchen window, where entry appeared to have been made; (3) the defendant’s fingerprint was found on the chair by the police; (4) a tenant in the second floor apartment arrived home at approximately 9 p.m. on September 7, walked directly past the victim’s kitchen window to reach the door and did not observe the metal folding chair at that time; (5) the tenant heard commotion from the victim’s apartment at approximately 11:30 p.m.; (6) the victim’s husband stated that to the best of his knowledge no black males had visited their apartment during the past five years; (7) negroid pubic hairs were present in combings from the victim’s pubic hair; and (8) the defendant is a black male. There is no dispute that the facts recited in the affidavit in support of the arrest warrant show probable cause that a crime has been committed. Also, when the recited facts are considered collectively with the positive fingerprint identification of the defendant these facts combine to constitute probable cause to believe that the defendant committed the crime. Even though the recited facts may not be sufficient to establish beyond a reasonable doubt that the defendant was guilty of the crimes charged, we agree that they establish a substantial basis for the magistrate’s finding of probable cause for the defendant’s arrest.

II

The defendant’s next claim is that the trial court’s instructions pertaining to capital felony were erroneous. Specifically he claims that: (1) the instructions regarding the meaning of “in the course of the commission of sexual assault in the first degree” enlarged the crime beyond its statutory elements, thereby depriving the defendant of due process of law; and (2) the instructions regarding the legal consequence of sexual intercourse with a dead body were incorrect as a matter of law. We find harmless error as to the first claim and no error as to the second claim.

A

The defendant maintains that the trial court’s instructions regarding the meaning of “in the course of the commission of sexual assault in the first degree” were erroneous because they enlarged the crime of capital felony by allowing an attempted sexual assault to constitute one of the predicate offenses. “In reviewing the trial court’s charge to the jury we must review the instructions as a whole, including any supplemental instructions. State v. Reed, 174 Conn. 287, 308, 386 A.2d 243 (1978); Maciejewska v. Lombard Bros., Inc., 171 Conn. 35, 40, 368 A.2d 206 (1976); State v. Edwards, 163 Conn. 527, 537, 316 A.2d 387 (1972). ‘[IJndividual instructions are not to be judged in artificial isolation from the overall charge. State v. Holmquist, 173 Conn. 140,151, 376 A.2d 1111, cert. denied, 434 U.S. 906, 98 S. Ct. 306, 54 L. Ed. 2d 193 (1977); Mazzucco v. Krall Coal & Oil Co., 172 Conn. 355, 357, 374 A.2d 1047 (1977).’ Cohen v. Cohen, 182 Conn. 193, 199, 438 A.2d 55 (1980).” State v. Braswell, 194 Conn. 297, 311, 481 A.2d 413 (1984), cert. denied, 469 U.S. 1112, 105 S. Ct. 793, 83 L. Ed. 2d 786 (1985). Examining the jury charge in its entirety, we find harmless error.

In its instruction, the trial court made a number of references to the temporal relationship required by the capital felony statute between the two predicate offenses, murder and sexual assault in the first degree. In so doing, the trial judge used the word “attempt” to explain that the phrase “in the course of the commission of” means before, during or after the completion of the sexual assault. This use of “attempt” was in error, however, because a possible interpretation of the charge is that the underlying sexual assault need not be completed. The trial judge also stated “[i]t is not necessary, however, that the sexual intercourse be completed.” It appears that the trial court intended this phrase to indicate that it did not matter whether the sexual assault was completed before the murder, so long as there was an intent, prior to killing, to sexually assault the victim. Nonetheless, we find error because an essential element of the crime of sexual assault in the first degree is penetration.

We find these errors harmless. The complained of phrases, standing alone, could be interpreted as allowing an attempted sexual assault to constitute a predicate offense of capital felony. These phrases, however, must be considered with respect to the charge as a whole. “A phrase having a different meaning when culled from the charge will not be regarded as error when there is no ‘reasonable possibility’ that the jury were misled.” State v. Annunziato, 169 Conn. 517, 532, 363 A.2d 1011 (1975); Magnon v. Glickman, 185 Conn. 234, 247, 440 A.2d 909 (1981). After reviewing the entire charge, we are convinced that the jury was adequately instructed on the elements of capital felony. Although the trial court’s use of the questioned language was erroneous, the trial court clearly explained the requisite elements of capital felony on two separate occasions. Furthermore, the trial court read the capital felony statute to the jury three times. Finally, even if the jurors misperceived the instructions and believed that attempted sexual assault could constitute a predicate offense for capital felony, any such misperception could not have affected their verdict. There was no factual dispute as to whether sexual intercourse occurred, and the defendant did not suggest penetration had not occurred. We conclude that there is no reasonable possibility that the trial court’s misstatements misled the jury. “ ‘Jury instuctions are calculated to give the jurors a clear understanding of the elements of the crime charged, and to afford them proper guidance for their determination of whether those elements were present.’ State v. Sinclair, [197 Conn. 574, 581, 500 A.2d 539 (1985)]; State v. Smith, 194 Conn. 213, 219, 479 A.2d 814 (1984).” State v. Fleming, 198 Conn. 255, 270, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986). We conclude that the jury charge fulfilled this purpose.

B

The defendant also claims that the jury instructions pertaining to the legal consequences of sexual intercourse with a dead body were erroneous. He argues that the trial court should have instructed the jury that if the victim was dead before sexual intercourse occurred, he could not be found guilty of sexual assault in the first degree. We disagree.

In State v. Rodgers, 198 Conn. 53, 502 A.2d 360 (1985), we held that one who renders his victim unconscious and then commits a sexual assault on that person can be found guilty of sexual assault in the first degree. In that case, the defendant argued that because the victim was unconscious when the sexual assault occurred, he could not be found to have “compelled” the victim to engage in sexual intercourse. We stated that it would be “bizarre ... to impose a lesser degree of responsibility for sexual assault upon a person, who, by his own hand, renders the victim physically helpless . . . .” Id., 61.

Today we apply the logic of Rodgers to the present case. It would be strange indeed if the penalty under our law would be less severe if the defendant sexually assaulted the victim and in so doing caused her death than it would be if he sexually assaulted the victim and did not cause her death. That would be the same bizarre result we noted in Rodgers, and would encourage assailants to kill their victims when committing a sexual assault. Sexual assault in the fourth degree occurs when an assailant commits a sexual assault on a dead body, but the assailant is not involved in causing the victim’s death. When, however, the assailant kills the victim in order to commit a sexual assault, he has committed sexual assault in the first degree. The trial judge properly instructed the jury on this issue.

Ill

The defendant’s final claim is that the trial court erred in denying the defendant’s motion for judgment of acquittal on the third count of the indictment, the murder charge, because murder is a lesser included offense of the capital felony charge. The state concedes that murder is a lesser included offense of capital felony under these circumstances, but opposes the defendant’s claim that the motion for acquittal on that charge should have been granted. The state argues that the trial court erred when it rendered judgment for both the greater offense and the lesser included offense, after guilty verdicts on both counts were returned by the jury. We agree. The trial court erred when it rendered a judgment on the murder charge and that judgment should be set aside. There is no basis to support a motion for acquittal on this charge as the defendant was found guilty of murder by the jury, although he may not be punished for both that crime and for capital felony. See Ball v. United States, 470 U.S. 856, 865, 105 S. Ct. 1668, 84 L. Ed. 2d 740 (1985).

There is error in part, the judgment of conviction with regard to the third count of the indictment is set aside and the case is remanded to the trial court with direction to render judgment as on file except as modified in accordance with this opinion.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-54b. capital felony. A person is guilty of a capital felony who is convicted of any of the following ... (7) murder committed in the course of the commission of sexual assault in the first degree . . . .”

       “[General Statutes] Sec. 53a-54c. 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 commit 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] 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 [acted] under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.
      “(b) Evidence that the defendant suffered from a mental disease, mental defect or other mental abnormality is admissible, in a prosecution under subsection (a), on the question of whether the defendant acted with intent to cause the death of another person.
      “(c) Murder is punishable as a class A felony in accordance with subdivision (2) of section 53a-35a unless it is a capital felony.”

       The capital felony jury instructions are as follows:
      “Now, as.,to the first count, which is entitled ‘Capital Felony Murder,’ the gist of the statute reads as follows: ‘A person is guilty of capital felony who commits murder in the course of the commission of sexual assault in the first degree.’
      “There are basically two elements: first, that the defendant committed murder, and, secondly, it was done in the course of sexual assault in the first degree.

        “Now, as to the first element, if you did not find or do not find that the defendant was guilty of murder, as I have instructed you, as to the third count, you need go no further with this count, and you must find the defendant not guilty of capital felony murder; and this even goes if you found the defendant guilty of a lesser included charge of murder. And the only way you continue with this charge is if you find the defendant guilty of murder as to the third count.
      “If you find him guilty as to a lesser included charge of manslaughter, it does not fulfill the first element, and you need go no further with this count.
      “If, on the other hand, you find the defendant guilty of murder, you must consider the second count. As to the second count, sexual assault in the first degree is set out in the statute as follows: ‘A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person.’
      “Now, actually, when you consider that statute, you can break it down into the two elements or parts: first, that there must be sexual intercourse by the defendant with the victim, and it must have been compelled by the use of force.
      “Now, the statute does define a person, for the purposes of this statute, as a human being. And as to the first part of sexual assault in the first degree, sexual intercourse includes its ordinary meaning, which is the penetration of the female vagina by the male penis. Any penetration, no matter how slight, is sufficient under the statute, and there is no need for the emission of semen from the male organ. This statute only applies where the defendant and the victim are not married to one another.
      “Now, as to that part of it, you have had testimony of both [the victim’s husband] and Miss Alfonsi, that the apartment was occupied by [the victim’s husband] and his wife, the decedent.
      “In this connection, the touching of the private parts would not be sufficient, such as the touching of the breast or the pubic area, because the element of the statute is sexual intercourse.
      “As to the second element, it must have been compelled by the use of force.
      “Now, ‘use of force’ is defined in the statute as the use of a dangerous instrument or the use of actual physical force or violence or superior strength against the victim.

        “And ‘dangerous instrument’ is defined as any instrument, article or substance which, under the circumstances in which it is used or attempted to be used, is capable of causing death or serious physical injury.
      “Now, the Court will instruct you that if the instrument used to cause the injury, which Dr. Shah testified caused the death, was the brick, then it was a dangerous instrument, if you credit her opinion that its use in each of the blows to the head of [the victim] could have caused unconsciousness or death.
      “Now, there would not be force used to compel if the penetration or intercourse was made on an unconscious or helpless body or a dead body. So, if the intercourse, if there was intercourse that you found, or penetration of the vagina, and you found that it was done after the fact, in other words, where the defendant or the person coming upon the helpless body or dead body, it does not fall within sexual assault in the first degree because the sexual intercourse must have been compelled by force.
      “Now, in this connection, however, if the person who is having the sexual intercourse or penetration has compelled it by force, even though the person has become unconscious or dead, then it is sexual assault in the first degree.
      “Now, the phrase ‘in the course of the commission’ is a time limitation and means conduct occurring in an attempt to commit, during the commission or in the immediate flight after the attempt or the commission of the .offense. The immediate killing of said person so as to eliminate a witness to the crime or to avoid detention is also ‘in the course of commission.’
      “In this connection, an assault to overcome her resistance to sexual assault, without the intention to cause her death, is not enough, or if the offender caused her death prior to having an intent to sexually assault her, would not be sufficient. The intent to cause her death must occur some time during the attempt or commission of the crime of sexual assault in the first degree.
      “It is not necessary, however, that the sexual intercourse be completed. It is sufficient if some act, such as the use of force, is done and the sur-

        rounding circumstances proved beyond a reasonable doubt that the force was used with the intent to have sexual intercourse with [the victim].
      “Under such circumstances, it then would not be of a consequence if the sexual intercourse was engaged in while she was unconscious or dead.
      “So, if you find beyond a reasonable doubt that the State has proved each of the following elements, first, that the defendant committed the murder of [the victim], and, second, it was done in the course of sexual assault in the first degree, then you must find him guilty of capital felony murder, the first count.
      “On the other hand, if you find that the State has failed to prove either one of these elements to you beyond a reasonable doubt, you must find him not guilty as to the first count.”


source: Caselaw Access Project

author: Covello, J.

license: Public Domain

text:
    People’s Bank v. Joseph F. Horesco
    (13091)
    Peters, C. J., Shea, Callahan, Covello and Hull, Js.
    Argued September 30
    decision released November 24, 1987

      Daniel V. Presnick, for the appellant (defendant).

      Dion W. Moore, with whom were Louis C. Zowine and, on the brief, Janet H. Stratton and Gary G. Williams, for the appellee (plaintiff).

      Joseph I. Lieberman, attorney general, and Robert M. Langer, Neil G. Fishman and William M. Ruben-stein, assistant attorneys general, filed a brief for the state of Connecticut as amicus curiae.
   Covello, J.

This appeal challenges the essentially procedural consequences that followed the entry of a default after the defendant failed to appear at the time assigned for trial. While the appeal purports to raise several other substantive issues, the record discloses that they have not been properly preserved for appellate review.

The underlying suit alleged failure to pay the amount due on a promissory note. The defendant, Joseph F. Horesco, admitted that monies were owed but left the plaintiff, People’s Bank, to its proof as to the exact sum due. The defendant also filed a three count counterclaim alleging a single violation of the Connecticut Truth In Lending Act, and two violations of the Connecticut Unfair Trade Practices Act (CUTPA). The court, Maiocco, J., thereafter granted the plaintiff’s motion to strike the second and third counts of the counterclaim dealing with the CUTPA claims.

In due course the matter was assigned for trial. The defendant failed to appear at trial. The court entered a default and rendered judgment for the plaintiff. The court thereafter opened the judgment solely to correct a mathematical error in the calculation of counsel fees. The defendant moved to reopen the judgment. The court denied the motion.

The defendant appeals, contending that the court erred in: (1) striking two counts of his counterclaim; (2) entering a default against the defendant; (3) awarding attorney’s fees without.a factual basis; (4) correcting the judgment without notice to the defendant; and (5) failing to reopen the judgment. We conclude that these claims are without merit and find no error.

With respect to the counterclaims, the record reflects that on September 9, 1985, the court, Maiocco, J., granted the plaintiff’s motion to strike the second and third counts of the defendant’s counterclaim. The defendant had not filed the required memorandum of law and did not appear at the time assigned for hearing. Therefore, the motion was deemed granted by consent pursuant to the operation of Practice Book § 155. Although the defendant attempted to reintroduce this subject matter, see footnote 6 infra, no judgment was ever entered with respect to the stricken CUTPA counterclaims. Since there was no judgment as to them, we are without jurisdiction to consider this aspect of the appeal. Stroiney v. Crescent Lake Tax District, 197 Conn. 82, 86, 495 A.2d 1063 (1985).

The defendant next claims error in the court’s entering a default against him. Examination of the court transcript discloses that the defendant failed to appear at the time assigned for trial on March 12, 1986. This being the case, the entry of a default and the rendition of immediate judgment was in order. See Practice Book § 364. Since the matter in dispute involved a liquidated sum due under a promissory note, the plaintiff had the option of proving damages by either a verified affidavit or the presentation of other evidence. See Practice Book § 366. No notice to the defendant was required. See Practice Book § 364.

With respect to the award of attorney’s fees and the subsequent correction of their amount, the promissory note in question authorized counsel fees in an amount up to 15 percent of the sum due. The court, having examined the underlying instrument, authorized the full 15 percent. Determination of the amount of counsel fees reposes in the sound discretion of the court. Link v. Shelton, 186 Conn. 623, 629, 443 A.2d 902 (1982).

The record further reflects that on March 19, 1986, the court opened the judgment for “the sole purpose of changing the attorney’s fee” as the 15 percent amount authorized in the promissory note had been calculated incorrectly. It was within the trial court’s discretion to make this modification once apprised of the mathematical error. Link v. Shelton, supra. There is nothing in the record to support the defendant’s claim that there was no notice to him of this proceeding.

Finally, the defendant claims error in connection with the court’s failure to open the judgment. Review of the record discloses that on March 24, 1986, the defendant filed a motion to open the judgment. Attached to the motion was counsel’s affidavit stating that, although he had received notice of the March 12 proceedings, he had not understood that his actual appearance was required. When the defendant again did not appear on April 7, 1986, the date set for the hearing on the motion, the trial court specially assigned the motion for the following day. Upon the defendant’s failure, yet again, to appear, the trial court, Jacobson, J., denied the defendant’s motion with prejudice.

The defendant’s application to open the judgment upon default is committed to the sound discretion of the trial court. Automotive Twins, Inc. v. Klein, 138 Conn. 28, 34, 82 A.2d 146 (1951). The burden of demonstrating reasonable cause for the nonappearance is on the defaulted party, and “[t]he judgment should not ordinarily be opened if his failure to appear or procure a continuance resulted from his own negligence.” Id., citing Schoonmaker v. Albertson & Douglas Machine Co., 51 Conn. 387, 392 (1884). Upon a thorough examination of the record and the circumstances of this default we find no abuse of the trial court’s discretion in this matter.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 36-393 et seq.

       General Statutes § 42-110a et seq.

       Practice Book § 155 provides in relevant part: “An adverse party who fails timely to file such a memorandum pursuant to this section shall be deemed by the court to have consented to the granting of the motion.”

       On January 30,1986, the defendant withdrew the counterclaims alleging violations of the Connecticut Unfair Trade Practices Act, thereby precluding the entry of judgment on these issues.

       We also decline to plunge into the procedural thicket caused by the defendant’s subsequent filing of a second and then third revised counterclaim presenting the identical CUTPA issues, and the decision on a subsequent motion to strike in which the court took up the CUTPA issues and again granted the motion to strike. We are satisfied that the CUTPA issues were stricken by the trial court’s first decision September 9,1985. We recognize that ordinarily the filing of an amended pleading after a motion to strike has been granted, removes the original pleading from the case. See Good Humor Corporation v. Ricciuti, 160 Conn. 133,135, 273 A.2d 886 (1970). We decline to review the subsequent ruling in this case, for the reason that the amended counterclaim contained substantially the same allegations as those in the original counterclaim and should have been the subject of a request to revise; see Practice Book § 147; and not a further motion to strike. See Good Humor Corporation v. Ricciuti, supra, 135.

       This caused the issues to be found for the plaintiff on not only the complaint but also the first count of the defendant’s counterclaim, which dealt with the Connecticut Truth in Lending Act claim.

       Practice Book § 364 provides in relevant part: “(a) If a defendant is defaulted for failure to appear for trial, evidence may be introduced and judgment rendered without notice to the defendant.”

       Practice Book § 366 provides: “In all actions of contract when damages are to be assessed after entry of a default, the plaintiff must file an account, copy, statement,- or bill of particulars verified by oath, or duly present evidence in court in support of his claim.”


author: Shea, J.

text:
    Hillcroft Partners et al. v. Commission on Human Rights and Opportunities
    (13158)
    Peters, C. J., Healey, Shea, Callahan and Santaniello, Js.
    Argued October 7
    decision released November 24, 1987

      Thomas F. Parker, with whom was Brenda M. Berge-ron, for the appellants (plaintiffs).

      David M. Teed, assistant attorney general, with whom were Richard F. Kehoe, assistant attorney general, and, on the brief, Joseph I. Lieberman, attorney general, for the appellee (defendant).
   Shea, J.

The plaintiffs, Hillcroft Partners and Schlesinger Management Corporation, appealed to the Superior Court from an order of the defendant commission on human rights and opportunities (CHRO) implementing its finding that the policy of the plaintiff landlord and rental agent in limiting occupancy of their three-bedroom apartments to no more than four persons discriminated against prospective tenants with minor children in violation of General Statutes § 46a-64a. The trial court dismissed the appeal because of the failure to serve the complainant, Margaret Schifini, who had instituted the proceeding against the plaintiffs and was the beneficiary of a resulting financial award.

In this appeal from the judgment of dismissal the plaintiffs claim that the trial court erred in concluding that service of the complaint upon the complainant was required by General Statutes § 4-183 (b) of the Uniform Administrative Procedure Act (UAPA), which provides for service upon “all parties of record.” We find no error.

Because it is conceded that Schifini was never served, the dispositive issue is whether she was a party of record upon whom service of the petition appealing from the CHRO decision was required by § 4-183 (b). If the complainant was such a party, the failure to follow the statutory mandate to serve her was a jurisdictional defect warranting dismissal of the appeal. We have held that “[a] statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created.” Royce v. Freedom of Information Commission, 177 Conn. 584, 587, 418 A.2d 939 (1979). “The appeal provisions of the statute are jurisdictional in nature, and, if not complied with, render the appeal petition subject to dismissal.” Basilicato v. Department of Public Utility Control, 197 Conn. 320, 324,497 A.2d 48 (1985); Minichino v. Freedom of Information Commission, 6 Conn. App. 148,149, 503 A.2d 1189 (1986); Newtown v. Department of Public Utility Control, 3 Conn. App. 416, 419, 488 A.2d 1286 (1985).

The term “party” is defined by General Statutes § 4-166 (5) of the UAPA to mean “each person or agency named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party . . . .” We consider first the last definitional alternative, “properly seeking and entitled as of right to be admitted as a party.” The record in this case discloses no attempt by the complainant to be admitted as a party, whether or not she may have been entitled to that status. As a recipient of a financial benefit by virtue of the CHRO order, Schifini may well have been “entitled as of right to be admitted as a party” and thus to notice of an appeal contesting that award. See Shulman v. Zoning Board of Appeals, 143 Conn. 182, 183,120 A.2d 550 (1956); Devaney v. Board of Zoning Appeals, 132 Conn. 218, 220, 43 A.2d 304 (1945). Because the absence of notice to one having a substantial interest in a legal proceeding raises constitutional concerns, the CHRO argues that we should construe § 4-183 (b) to require service upon a person “entitled as of right to be admitted as a party” even though he has never sought that status. The failure to join one who is even an indispensable party, however, does not warrant dismissal of a statutory appeal where the statute does not specify that such a person must be served. “New parties may be added and summoned in . . . by order of the court, at any stage of the cause, as it deems the interests of justice require.” Practice Book § 100. This court has remanded a statutory appeal for the purpose of joining an indispensable party omitted from the service requirements of the statute authorizing the appeal even when the defect has been noticed by us sua sponte. Shulman v. Zoning Board of Appeals, supra, 183-84. The contention advanced by the CHRO that § 4-183 (b) must be construed to require service upon the complainant as a necessary party in order to satisfy the constitutional requirement of an opportunity to be heard; see Rogers v. Commission on Human Rights & Opportunities, 195 Conn. 543, 548-49, 489 A.2d 368 (1985); therefore, does not persuade us to ignore the use of the conjunctive in the definitional phrase, “or properly seeking and entitled as of right to be admitted as a party.” (Emphasis added.) General Statutes § 4-166 (5).

We conclude, however, that the record sufficiently establishes that the complainant was “named” as a party during the CHRO proceeding and thus became a party of record under the first alternative of the definition contained in § 4-166 (5). The first letters sent by the CHRO to each plaintiff bore references to docket numbers of proceedings entitled “Margaret M. Schifini v. Hillcroft Partners” and “Margaret M. Schifini v. Schlesinger Management Corp.” Copies of the sworn complaints enclosed with the letters bore a caption as follows: “Commission on Human Rights and Opportunities on the Complaint of Margaret M. Schifini, Complainant vs. (each plaintiff) Respondent.” A letter of the plaintiffs responding to the complaints as well as the affidavits submitted therewith had the reference or caption “Margaret M. Schifini vs. (each plaintiff).” The notice of public hearing referred to the complaints by the same title. The brief filed with the hearing officer by the attorney general, as well as that of the plaintiffs, bore the caption, “C.H.R.O. ex rel. Margaret Schifini, Complainant v. Hillcroft Partners and Schlesinger Management Corp., Respondents.” The same caption appears on the final decision issued by the CHRO. The record of the proceeding, therefore, indicates that the complainant was named in the pleadings and other documents filed either as the sole party pursuing the claim against the plaintiffs or as a relator at whose behest the CHRO had instituted the proceeding.

In mandamus actions at common law, where there is a private right to have a public duty performed, the suit is ordinarily brought in the name of the state or its attorney, designating the aggrieved person seeking performance of such duty as the relator. State ex rel. Foote v. Bartholomew, 103 Conn. 607, 618,132 A. 30 (1925); State v. Towers, 71 Conn. 657, 663, 42 A. 1083 (1899). The same practice of naming the person who has instigated the proceeding as the relator has usually been followed in mandamus actions for the enforcement of a public duty, where “the people are regarded as the real party in interest” and the relator “need not show that he has any legal or special interest in the result.” State ex rel. Eastern Color Printing Co. v. Jenks, 150 Conn. 444, 449,190 A.2d 591 (1963); State ex rel. Foote v. Bartholomew, supra. Where the relator has no interest distinguishable from that of other members of the public, of course, a mandamus action for performance of a public duty may be instituted by the state without naming a relator. State’s Attorney v. Selectmen of Branford, 59 Conn. 402, 408-409, 22 A. 336 (1890). If, however, the relator is specially aggrieved by failure to perform a public duty, his interest must be taken into account in a decision as to whether mandamus is warranted in view of other possible remedies. State v. Erickson, 104 Conn. 542, 549, 133 A. 683 (1926).

The designation of Schifini as a relator in the final decision from which the appeal was taken, as well as in other documents during the course of the proceeding, indicated that she was “[a] person beneficially interested on whose behalf an action is maintained by the state or sovereign power.” Ballentine’s Law Dictionary (3d Ed.) p. 1084. “A relator is a party in interest who is permitted to institute a proceeding in the name of the people or the attorney general when the right to sue resides solely in that official.” 59 Am. Jur. 2d, Parties § 7. Upon the issuance of the final decision awarding her financial relief, the complainant unquestionably had a sufficient interest to qualify as a relator and the caption of the decision clearly indicated that she had been given that status by the CHRO. She had thus been “named ... as a party” pursuant to § 4-166 (5). No more formal christening as a party was needed. Her designation as the relator in the final decision together with her evident interest in that decision provided reasonable notice to the plaintiffs that she had become a party of record upon whom service of any appeal therefrom was mandated by § 4-183 (b).

The plaintiffs, contend that the Human Rights and Opportunities Act, General Statutes § 46a-51 through § 46a-99, makes no provision for a complainant to assume the role of a party. They rely upon the absence of any provision for giving notice of the hearing to the complainant, in contrast to General Statutes § 46a-84 (b), which requires such notice to a respondent. Similarly, they point to General Statutes § 46a-84 (d), which provides that “[t]he case in support of the complaint shall be presented at the hearing by the attorney general, who shall be counsel for the commission, or by the commission counsel,” and the omission of any express statutory authority for participation of the complainant as a party in the proceeding. The failure of the statutes to describe the role of the complainant, however, did not preclude the CHRO from naming her as a party so long as she had a substantial interest in the proceeding. Furthermore, we have held that, where the commission prosecutes a discriminatory practice upon the complaint of an individual seeking redress only for himself, “the tribunal may fashion a remedy only within the confines of the complaint and afford relief only to the individual complainant” and that upon the complainant’s death “the tribunal is rendered powerless to issue an award in conformity with the decedent’s personal complaint.” Groton v. Commission on Human Rights & Opportunities, 169 Conn. 89, 100-101, 362 A.2d 1359 (1975). We have also decided that, where an “executor has entered the administrative proceeding by filing an amended complaint seeking any remedy to which the deceased complainant may have been entitled,” the provision of General Statutes § 52-599 (b) that “[a] civil action or proceeding shall not abate by reason of the death of any party thereto” is applicable. (Emphasis added.) CHRO v. Greenwich Catholic Elementary School System, Inc., 202 Conn. 609, 613-14, 522 A.2d 785 (1987). In these cases we have implicitly regarded the continued presence of the complainant as a party to a CHRO proceeding to be essential where the complaint initiating the agency proceeding, like that in the present case, seeks relief only for the wrongs the complainant has allegedly suffered.

The plaintiffs also stress the absence of any provision for giving notice of the decision of the hearing officer to a complainant, such as that provided for a respondent by General Statutes § 46a-86 (a), (d) and (e), whether or not a discriminatory practice is found. This omission does create an incongruity in this statute, especially in view of General Statutes § 4-183 (a) of the UAPA which provides a right of appeal to “[a] person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case.” The deficiency, however, does not affect the right of a party, as defined by § 4-166 (5) to include a “named” party, to notice of the final decision of the agency, because General Statutes § 4-180 (c) requires that “[pjarties shall be notified . . . of any decision or order.”

We conclude that no statutory provision precluded the CHRO from naming Schifini as a party to the proceeding, as it did by designating her in the various documents comprising the record previously referred to, and, indeed, that according her such status was necessary in view of the limited scope of the complaint. Accordingly, she was a party of record whom the plaintiffs were obliged to serve in bringing their appeal. We agree with the trial court that the failure to serve her necessitated dismissal of the appeal for lack of jurisdiction.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 46a-64a. (Formerly Sec. 47a-2a). discrimination AGAINST FAMILIES WITH CHILDREN PROHIBITED, (a) In the rental of a dwelling unit, no landlords or landlord’s agent may discriminate against any tenant or potential tenant because such tenant occupies or intends to occupy the dwelling unit with minor children.
      “(b) The provisions of subsection (a) of this section shall not apply (1) to the renting of (A) single-family and two-family houses or (B) a dwelling unit in a house containing dwelling units for not more than four families living independently of each other, if the owner of such house resides in one of the dwelling units; or (2) if such rental would violate any local, state or federal law or regulation, or condominium bylaw.
      “(c) Any person who commits a discriminatory practice under this section shall be fined not less than twenty-five dollars nor more than one hundred dollars or imprisoned not more than thirty days, or both.
      “(d) Nothing in this section shall be construed to require any landlord to terminate or refuse to renew any lease or tenancy.”

       General Statutes § 4-183 (b) provides: “Proceedings for such appeal shall be instituted by filing a petition in superior court for the judicial district of Hartford-New Britain or for the judicial district wherein the aggrieved person resides or if such person is not a resident of this state to the court for the judicial district of Hartford-New Britain within forty-five days after mailing of the notice of the final decision of the agency or, if a rehearing is requested, within forty-five days after mailing of the notice of the decision thereon. Copies of the petition shall be served upon the agency and all parties of record within thirty days after mailing of such notice or, if a rehearing is requested, within thirty days after mailing of the notice of the decision thereon, except that service upon an agency may be made by the appellant mailing a copy of the petition by registered or certified mail, postage prepaid, without the use of a sheriff or other officer, to the office of the commissioner of the agency or to the office of the attorney general in Hartford.”

       General Statutes § 4-166 (5) provides:" ‘Party’ means each person or agency named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party . . .

       In the form of complaint used by the CHRO, entitled “Complaint Affidavit,” the printed words, “Commission on Human Rights and Opportunities on the Complaint of,” precede the typed portion of the caption, “Margaret M. Schifini, Complainant vs. (each plaintiff), Respondent.” The printed record on appeal contains only the typed portion of the caption.