text:
    Mark Demers et al. v. State of Connecticut
    (13336)
    Peters, C. J., Shea, Callahan, Covello and Hull, Js.
    Argued May 31
    decision released September 13, 1988

      Edward T. Ricciardi, assistant state’s attorney, with whom, on the brief, was John A. Connelly, state’s attorney, for the appellant (respondent).

      ToddD. Fernow, with whom was Charles E. Oman III, for the appellees (petitioners).
   Callahan, J.

The state has filed the instant appeal from a judgment of the trial court granting the petition of Mark Demers and William J. Corcoran, Jr., for a new trial pursuant to General Statutes § 52-270 and Practice Book § 902. In a joint trial, Demers and Corcoran previously had been convicted of sexual assault in the first degree in violation of General Statutes § 53a-70 (a), robbery in the second degree in violation of General Statutes § 53a-135 (a), and unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a). In ruling on the petition, the trial court found that the state had failed to disclose to the petitioners, at or prior to their trial, the existence of exculpatory information concerning the victim’s prior arrest for prostitution contained in a Waterbury police department report. The trial court determined that, upon reasonable inquiry, the state should have discovered the information in the report and should have disclosed it to the petitioners, and that the information would have had a “significant impact on the credibility of [the alleged victim] for it directly controverted her sworn testimony that she was not a ‘hooker’ and had never participated in sex for money.” As a result of its findings, the trial court granted the petition for a new trial. Thereafter, the state filed the instant appeal in the Appellate Court. The appeal was transferred to this court pursuant to Practice Book § 4023.

The principal issue on appeal is whether the trial court abused its discretion in granting the petition for a new trial. The state argues that it did because the trial court erred in basing its conclusion that the petition should be granted on the finding of a Brady-Agurs violation. The state claims that there was no BradyAgurs violation because: the information regarding the victim’s prior arrest for prostitution was not suppressed, but rather was known to or should have been discovered by the petitioners themselves prior to trial; the information was not admissible evidence and was neither exculpatory nor material; and the information was also inadmissible as evidence of sexual assault in the first degree because it was barred by Connecticut’s rape shield statute, General Statutes § 54-86f. We find no error.

Prior to addressing the substantive issues of this appeal, it is first necessary to summarize briefly the state’s version and the petitioners’ version of the events of March 13, 1982, which led to the arrest and conviction of the petitioners. At trial, the victim of the petitioners’ alleged criminal conduct testified to the following. At approximately 2:50 a.m. on March 13,1982, she was walking on North Main Street in Waterbury hitchhiking to the Berkeley Heights housing project to buy narcotics when a car containing the petitioners stopped next to her. The petitioners asked the victim if she knew where they could get marihuana and she indicated that they could probably get some up at Berkeley Heights. The petitioners then offered the victim a ride to her destination. Initially, she accepted but then reneged upon realizing that she would have to sit in the back seat of the two-door car or between the two men. When, however, Demers agreed to go to the back seat, the victim entered the car. After the victim entered the car, the petitioners, without informing the victim, deviated from her stated destination and drove to a parking lot next to a building known as the “Ponte Club.” While en route, the petitioners told the victim that they wanted to party and requested that she perform oral sex for which they promised to pay her. The victim responded by informing the petitioners that she was forty years old and was not a “party girl” or a “hooker.” The petitioners, however, forced the victim to engage in oral sex with both of them and to engage in vaginal intercourse with Corcoran, after which she was punched in the face by Corcoran and robbed of her money. The victim subsequently managed to escape and hide in nearby woods until the petitioners drove away. She then ran to a house close by to seek help. There she was admitted by the woman of the house who called the police after being told by the victim that she had just been raped.

In their testimony at trial, the petitioners recited a significantly different version of what had occurred on March 13, 1982. Both testified that while stopped at a traffic light at the comer of North Elm Street, Cherry Street and the North Square, the victim approached their car and propositioned them, soliciting $15 for oral sex and $20 for intercourse. In response to the victim’s proposition, the petitioners claim that each gave her $15, that she got into their car and that she directed them to the parking area at the “Ponte Club.” Upon arriving at the parking area, Demers exited the vehicle and the victim proceeded to engage in oral and vaginal intercourse with Corcoran. Thereafter Corcoran exited the car, Demers entered and the victim performed oral sex upon him. The victim then exited the car and engaged in an argument with Corcoran about giving her a ride back to North Main Street. Subsequently, the petitioners drove off, leaving the victim in the parking lot. As they drove away, Demers noticed the victim’s pocketbook on the floor in the front of the automobile and threw it out the window.

At the outset, we note that a petition for a new trial is addressed to the discretion of the trial court whose decision thereon will be set aside on appeal only if it reflects a clear abuse of discretion. Wetzel v. Thorne, 202 Conn. 561, 564-65, 522 A.2d 288 (1987); Asherman v. State, 202 Conn. 429, 434, 521 A.2d 578 (1987). In deciding upon a petition for a new trial, the function of the trial court is to determine whether the evidence presented at the hearing on the petition together with the evidence presented at the original trial warrants the granting of the petition. Kubeck v. Foremost Foods Co., 190 Conn. 667, 669, 461 A.2d 1380 (1983). “ ‘The basic question which the trial court has to decide is whether upon all the evidence an injustice had been done’; Turner v. Scanlon, 146 Conn. 149, 163, 148 A.2d 334 (1959); and ‘whether it is probable that on a new trial a different result would be reached.’ Taborsky v. State, 142 Conn. 619, 623, 116 A.2d 433 (1955).” Kubeck v. Foremost Foods Co., supra; see also Johnson v. State, 172 Conn. 16, 17, 372 A.2d 138 (1976).

In the case at hand, the trial court granted the petition for a new trial on the ground that the state failed to disclose exculpatory material about which it should reasonably have known, and which it should have disclosed, and thereby violated the principles set forth in United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976). The material that the trial court found that the state failed to disclose was the contents of a May, 1981 arrest report of Sergeant Jeremiah Wallace of the Waterbury police department. The arrest report set forth the factual circumstances underlying the victim’s arrest on a charge of prostitution on May 5, 1981, only ten months prior to the incident at issue here.

The state first claims that the principles of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and United States v. Agurs, supra, do not apply in this case because the information was known by the petitioners prior to trial and available to them during trial, and it further claims that the information was neither material nor exculpatory in nature. We disagree.

It is well established that “ ‘ “suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” [Brady v. Maryland, supra, 87] . . . .’” State v. Monteeth, 208 Conn. 202, 213, 544 A.2d 1199 (1988); State v. Doolittle, 189 Conn. 183, 196, 455 A.2d 843 (1983); see also Moore v. Illinois, 408 U.S. 786, 92 S. Ct. 2562, 33 L. Ed. 2d 706, reh. denied, 409 U.S. 897, 93 S. Ct. 87, 34 L. Ed. 2d 155 (1972); State v. Quintana, 209 Conn. 34, 547 A.2d 534 (1988); State v. Green, 194 Conn. 258, 263, 480 A.2d 526 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 964, 83 L. Ed. 2d 969 (1985). To establish & Brady violation the defendant bears the burden of demonstrating: “(1) that the prosecution suppressed evidence; (2) that the evidence was favorable to the defense; and (3) that it was material.” State v. Milner, 206 Conn. 512, 539-40, 539 A.2d 80 (1988); State v. Simms, 201 Conn. 395, 405-406, 518 A.2d 35 (1986).

I

We must first determine whether there was a “suppression” of evidence, within the meaning of Brady. The state claims that the evidence was either available to or known by the petitioners prior to trial, and was also available to them during the trial and, therefore, was not suppressed. This claim involves two interrelated questions. First, did the state have a duty to disclose the arrest report of Sergeant Wallace dated May 5,1981? Second, was the information in the arrest report, although not disclosed, nevertheless, available to or known by the petitioners? To the first question, our answer is in the affirmative and to the second question, in the negative.

A

The prosecution’s duty to disclose applies to all material and exculpatory evidence that is within its possession or available to it; Pennsylvania v. Ritchie, 480 U.S. 39, 57, 107 S. Ct. 989, 94 L. Ed. 2d 40 (1987); Moore v. Kemp, 809 F.2d 702, 719 (11th Cir.), cert. denied, 481 U.S. 1054, 107 S. Ct. 2192, 95 L. Ed. 2d 847 (1987); Austin v. McKaskle, 724 F.2d 1153, 1156 (5th Cir. 1984), modified on appeal after remand, 764 F.2d 1142 (5th Cir. 1985); Fulford v. Maggio, 692 F.2d 354, 357 (5th Cir. 1982), rev’d on other grounds, 462 U.S. 111, 103 S. Ct. 2261, 76 L. Ed. 2d 794, reh. denied, 463 U.S. 1236, 104 S. Ct. 29, 77 L. Ed. 2d 1451 (1983); and that the prosecution knew or should have known was exculpatory. United States v. Bibby, 752 F.2d 1116, 1125 (6th Cir. 1985), cert. denied, 475 U.S. 1010, 106 S. Ct. 1183, 89 L. Ed. 2d 300 (1986); see also General Statutes § 54-86c (a). “It is irrelevant whether the State [i.e., the prosecutor,] acted in good faith or bad faith in failing to disclose the evidence; negligent suppression may be sufficient.” Walker v. Lockhart, 763 F.2d 942, 957 (8th Cir. 1985), cert. denied, 478 U.S. 1020, 106 S. Ct. 3332, 92 L. Ed. 2d 738 (1986), citing Brady v. Maryland, supra. Where “evidence highly probative of [a defendant’s] innocence is in [the prosecutor’s] file, he should be presumed to recognize its significance even if he has actually overlooked it”; United States v. Agurs, supra, 110; and he is put on notice to disclose the evidence even in the absence of a request to do so. Id., 107; see also State v. Baker, 195 Conn. 598, 609 n.10, 489 A.2d 1041 (1985).

Upon a careful review of the extensive record extant in this case, we conclude that the trial court did not abuse its discretion in determining that the state had an obligation to recognize as exculpatory and to disclose the information contained in the police arrest report because the state “should have known” of this information and its significance.

The state’s attorney’s office in Waterbury was well aware of the fact that the petitioners’ defense to the sexual assault charges against them, from the very inception of the case, was that the victim was a prostitute and had consented to the sexual acts alleged in return for payment. James Caulfield, counsel for the petitioners at the time of the criminal trial, repeatedly told various members of the state’s attorney’s office that he had received information from the Waterbury police department, residents of the Grove Street area, and an assistant state’s attorney that the victim was a known drug user and a prostitute. Caulfield also continuously urged the state’s attorney’s office to contact the detective bureau or the vice squad of the Waterbury police department to verify this information. In addition, Caulfield informed the assistant state’s attorney handling the case about an index card he had located in the records of the clerk’s office at the Waterbury Superior Court, geographical area number four, which indicated that the victim had been arrested for prostitution in May, 1981, and that the state had filed a substitute information charging her with disorderly conduct. Caulfield also informed the state that he was unable to determine the circumstances of the victim’s prostitution arrest or whether it ever had been disposed of and asked the assistant state’s attorney to check on it.

Despite Caulfield’s claims that the victim was a known prostitute, and that there existed a record of her arrest for prostitution, and despite Caulfield’s repeated requests that the assistant state’s attorney handling the case call the Waterbury police department to verify this information, the state never placed a phone call. The state’s only apparent response to the information they received from Caulfield was to ask the victim directly if she was a prostitute and to review its file for any prior convictions for prostitution. The record clearly establishes that, had a cursory investigation been conducted, the arrest report in question was “easily available” to the state and that a routine telephone call to the detective bureau or vice squad to check the victim’s background would have revealed the report and the circumstances of the victim’s prostitution arrest. The assistant state’s attorney who tried the case, however, admitted that he did nothing to investigate the circumstances surrounding the victim’s prior arrest. In fact, it appears that he never asked the victim about her May, 1981 arrest for prostitution when he inquired whether she had been a prostitute. Moreover, he subsequently acknowledged that the information in the arrest report in question was “potentially exculpatory” and that, in retrospect, had he known of it, he would have turned it over to the petitioners.

It should also be noted that the fact that the arrest report was in the possession of the Waterbury police department and not of the state’s attorney does not detract from the state’s duty to have disclosed it in this case. “Police are treated as an arm of the prosecution for Brady purposes, ‘and the taint on the trial is no less if they, rather than the state’s attorney, were guilty of the nondisclosure.’ ” Walker v. Lockhart, supra, 958; see also Barbee v. Warden, 331 F.2d 842, 846 (4th Cir. 1964). “The State’s duty of disclosure is imposed not only upon its prosecutor, but also on the State as a whole, including its investigative agencies. Therefore, if the [exculpatory materials] were held by the . . . police department we would be compelled to conclude that, constructively, the State’s attorney had both access to and control over the documents. See United States v. Bryant, 142 D.C. App. 132, 439 F.2d 642 [D.C. Cir.], on remand, 331 F. Supp. 927 [D.D.C.], aff’d, 145 D.C. App. 259, 448 F.2d 1182 ([D.C. Cir.] 1971); United States v. Jensen, 608 F.2d 1349 (10th Cir. 1979).” Ful ford v. Maggio, supra, 358 n.2; see also United States ex rel. Smith v. Fairman, 769 F.2d 386, 391-92 (7th Cir. 1985); Walker v. Lockhart, supra; Carey v. Duckworth, 738 F.2d 875, 878 (7th Cir. 1984); United States v. Esposito, 523 F.2d 242, 248 (7th Cir. 1975), cert. denied, 425 U.S. 916, 96 S. Ct. 1517, 47 L. Ed. 2d 768 (1976).

We conclude, therefore, that the trial court did not abuse its discretion when it determined that the state had access to the arrest report of Sergeant Wallace concerning the victim’s prostitution arrest, and a duty to disclose it.

B

The state also argues that it had no duty to disclose the arrest report in question because the information contained in it was available to and in fact known by the petitioners. This court has previously held that “ ‘[ejvidence 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. Dolphin, [195 Conn. 444, 455-56, 488 A.2d 812, cert. denied, 474 U.S. 833, 106 S. Ct. 103, 88 L. Ed. 2d 84 (1985)]; State v. Altrui, 188 Conn. 161, 177, 448 A.2d 837 (1982).” State v. Simms, supra, 407. The record in this case, however, indicates that the petitioners had no knowledge of the existence of Wallace’s arrest report until almost two and one-half years after the conclusion of their criminal trial. The record further reveals that, in the absence of specific knowledge of its existence, it is speculative at best to assume that Caulfield should or would have been able to discover the existence of the report and its contents on his own. Officer John Cavanaugh of the records division of the Waterbury police department testified at the posttrial hearing on the petitioners’ motion for a new trial that he was able to retrieve the arrest report from the microfilm records only after receiving the internally assigned file and complaint numbers which enabled him to cross reference the report to the name of the arrested person. There is no dispute that the petitioners’ trial counsel never received the internally assigned file and complaint numbers on any of the documents provided him by the state, nor did he come across them during his investigation. In addition, Wallace testified that had Caulfield inquired of him regarding the victim’s arrest, he would not have given him any information or discussed the matter but would have referred him to the state’s attorney’s office. He further stated that even if the case arising from the victim’s arrest had not still been pending, ‘T don’t think I would have said anything.”

Caulfield further testified that none of the Waterbury police officers from whom he had obtained his initial information would come forward to testify and that each of them had indicated that they would deny ever having spoken with Caulfield regarding the victim. Caulfield also testified that he was unable to determine whether the victim’s arrest for prostitution had ever been disposed of and that, from his past experiences, the Waterbury police department would not discuss a pending matter. Under such circumstances, we conclude that the trial court did not abuse its discretion in finding that the information contained within Wallace’s arrest report was neither known to nor reasonably available to the petitioners before or during trial simply because Caulfield was aware of the victim’s prior arrest.

II

The state next claims that circumstances underlying the victim’s arrest for prostitution are neither exculpatory nor material because the information is “inadmissible and collateral [to] any of the three separate counts of which the [petitioners] were convicted.” Specifically, the state argues that the alleged acts of prostitution set forth in the police report were not relevant to the credibility of the victim and, therefore, were not admissible in this case. In addition, the state argues that evidence of the prior sexual history of the victim is inadmissible under General Statutes § 54-86f, Connecticut’s rape shield statute. We disagree.

“It is beyond dispute that a witness may be impeached by evidence of specific acts of misconduct which relate to veracity, but not by those that merely illustrate general bad behavior. State v. Martin, 201 Conn. 74, 85-86, 513 A.2d 116 (1986); State v. Roma, 199 Conn. 110, 116-17, 505 A.2d 717 (1986); Martyn v. Donlin, 151 Conn. 402, 408, 198 A.2d 700 (1964); Vogel v. Sylvester, 148 Conn. 666, 675, 174 A.2d 122 (1961); C. Tait & J. LaPlante, Connecticut Evidence § 7.22a.” State v. McIntosh, 12 Conn. App. 179, 183, 530 A.2d 191, cert. denied, 205 Conn. 808, 532 A.2d 77 (1987). It is also generally held that a witness’ reputation for being unchaste or a prostitute, or her prior acts of sexual misconduct are not, in and of themselves, relevant to her credibility or veracity as a witness. State v. Brown, 199 Conn. 47, 60, 505 A.2d 1225 (1986), and authorities cited therein; State v. Mastropetre, 175 Conn. 512, 518-19, 400 A.2d 276 (1978); State v. McIntosh, supra, 184. Thus, if on cross-examination a witness denies having engaged in such prior acts of misconduct, the examiner must accept the answer and is prohibited from offering extrinsic evidence to prove such acts. State v. Martin, supra, 86; State v. Guthridge, 164 Conn. 145, 157, 318 A.2d 87 (1972), cert. denied, 410 U.S. 988, 93 S. Ct. 1519, 36 L. Ed. 2d 186 (1973); State v. McIntosh, supra, 185; State v. Horton, 8 Conn. App. 376, 380-81, 513 A.2d 168, cert. denied, 201 Conn. 813, 517 A.2d 631 (1986). Where, however, as here, the prior acts of misconduct are relevant to a substantive or material issue in the case, the prior acts can be proven by extrinsic evidence, despite the fact that admission of that evidence directly contradicts the testimony of the state’s witness, thereby also raising questions as to his or her credibility. See State v. Franko, 199 Conn. 481, 485, 508 A.2d 22 (1986); State v. Talton, 197 Conn. 280, 286, 497 A.2d 35 (1985); State v. Mastropetre, supra, 521; State v. Zdanis, 173 Conn. 189, 194-95, 377 A.2d 275 (1977); State v. McIntosh, supra, 184-85; State v. Butler, 11 Conn. App. 673, 683, 529 A.2d 219, cert. denied, 205 Conn. 806, 531 A.2d 938 (1987); C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.) § 7.24.4, pp. 210-11; C. McCormick, Evidence (3d Ed.) § 47, pp. 110-11.

There can be no doubt that while the factual circumstances underlying the victim’s prior arrest for prostitution would have had, as the trial court indicated, a “significant impact on the credibility of [the victim] for it directly controverted her sworn testimony that she was not a ‘hooker’ and had never participated in sex for money,” they were also clearly relevant under the circumstances of this case to the substantive issue of consent. Accordingly, the trial court did not err in finding that the information contained in the police report was admissible evidence.

The report of Sergeant Wallace indicated that at 11:25 in the evening of May 5, 1981, while in plainclothes and in an unmarked car, he was approached by a black male at the intersection of Central Avenue and Grove Street in Waterbury. The black male knocked on Wallace’s car window, asked him if he wanted a woman and told him it would cost $20 for a “blow job.” When Wallace agreed, the black male called to a woman standing on the sidewalk and indicated that Wallace had agreed to the price. The woman walked over to the car and opened the door. As she entered the automobile, she looked at and apparently recognized Wallace, yelled that he was “a cop,” and ran up Grove Street. She was thereafter apprehended and placed under arrest. The report reveals the name of the woman arrested to be the same as that of the victim and also reveals that she was arrested for prostitution.

Since the time of their arrest on the criminal charges, the petitioners have asserted that the victim approached them at the corner of North Elm Street and Cherry Street in Waterbury while they were in an automobile and offered to engage in sex with them for a fee. At trial, they both testified that when they agreed to her price, she got into their car and directed them to the Ponte Club parking lot where she rendered sexual services for the prices agreed upon.

Contrary to the repeated claims of the petitioners that the victim had consented to the sexual acts in question in return for payment, the victim, herself, repeatedly asserted at trial that she was “not a hooker” or a “party girl.” In addition, during cross-examination by the petitioners’ counsel, she unequivocally testified that, prior to March 13,1982, she “never” engaged in sexual activity with anyone in exchange for money. The jury also heard the victim’s claim that she was not a “hooker” when the woman to whose home the victim ran after the incident on March 13,1982, testified that the victim “kept repeating: I am forty years old and I am not a hooker.”

Accordingly, the factual circumstances of the victim’s arrest for prostitution on May 5, 1981, could lead to a reasonable conclusion that the victim had agreed on at least one occasion in the past to perform sexual acts for money and that under the circumstances that conclusion would have been relevant to the issue of consent in the petitioners’ criminal trial. While this court has yet to face the issue, numerous courts of other jurisdictions have recognized the relevancy and admissibility of evidence tending to establish that the alleged victim of a sexual assault was a prostitute in cases where, as here, consent was a defense to the sexual acts. See State ex rel. Pope v. Superior Court, 113 Ariz. 22, 29, 545 P.2d 946 (1976); Roberts v. State, 510 So. 2d 885, 893 (Fla. 1987), cert. denied, 485 U.S. 943, 108 S. Ct. 1123, 99 L. Ed. 2d 284 (1988); State v. Blue, 225 Kan. 576, 578, 580, 592 P.2d 897 (1979); State v. Roberts, 393 N.W.2d 385, 388 (Minn. App. 1986); State v. Romero, 94 N.M. 22, 26, 606 P.2d 1116 (1980); State v. Williams, 16 Ohio App. 3d 484, 488, 490-91, 477 N.E.2d 221 (1984), aff'd, 21 Ohio St. 3d 33, 487 N.E.2d 560 (1986); Haynes v. State, 498 S.W.2d 950, 952 (Tex. Crim. App. 1973); State v. Green, 163 W. Va. 681, 693, 260 S.E.2d 257 (1979). The Arizona Supreme Court, sitting en banc, specifically stated that “[wjhere, for instance, the defendant alleges the prosecutrix actually consented to an act of prostitution, the accused should be permitted to present evidence of her reputation as a prostitute and her prior acts of prostitution to support such a defense.” State ex rel. Pope v. Superior Court, supra; State v. Green, supra.

The state argues that evidence of the victim’s past acts of prostitution are inadmissible under Connecticut’s rape shield statute. We disagree. General Statutes § 54-86f specifically provides for the following exceptions to the inadmissibility of evidence of the prior sexual conduct of a sexual assault victim where such evidence is “(1) offered by the defendant on the issue of whether the defendant was, with respect to the victim, the source of semen, disease, pregnancy or injury, or (2) offered by the defendant on the issue of credibility of the victim, provided the victim has testified on direct examination as to his or her sexual conduct, or (3) any evidence of sexual conduct with the defendant offered by the defendant on the issue of consent by the victim, when consent is raised as a defense by the defendant, or (4) otherwise so relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights.” In light of our previous discussion, such evidence, at the very least, would be admissible under subsection four of the rape shield statute. To have deprived the petitioners of the ability to present such evidence which was so highly probative, relevant and material to an element of the crime charged would have violated their sixth amendment rights under the United States constitution to confront the witnesses against them. State v. Williams, supra, 490. Accordingly, we need not address the potential applicability of the other exceptions set forth above.

Having determined that the circumstances of the victim’s arrest for prostitution were admissible in the petitioners’ criminal trial, we must decide whether the trial court erred in concluding that the evidence was “material” for purposes of determining whether a violation of United States v. Brady, supra, occurred. Under the Brady doctrine, “evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would ha/ve been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985); see also United States v. Polizzi, 801 F.2d 1543, 1553 (9th Cir. 1986); State v. Quintana, 209 Conn. 34, 38, 547 A.2d 534 (1988); State v. Milner, 206 Conn. 512, 539 n.13, 539 A.2d 80 (1988).

In granting the petition for a new trial, the trial court found that the suppressed evidence would have had a significant impact on the victim’s credibility because it would directly have controverted her testimony that she was not a prostitute and had not consented to the sexual activity in question. In addition, the court noted that “[t]he triers of fact were entitled to have the opportunity to adjudge [the victim’s] credibility . . . by having [Wallace’s] testimony placed before them.” “Impeachment evidence as well as exculpatory evidence falls within Brady’s definition of evidence favorable to an accused. United States v. Bagley, [supra, 676]; Giglio v. United States, 405 U.S. 150, 154-55, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972); Brady v. Maryland, supra, 87; United States v. Polizzi, [supra, 1553].” State v. Monteeth, 208 Conn. 202, 213, 544 A.2d 1199 (1988); State v. Pollitt, 205 Conn. 132, 142, 531 A.2d 125 (1987). In the past, we have held that where, as here, “ ‘a conviction depends entirely upon the testimony of certain witnesses . . . information affecting their credibility is material in the constitutional sense [i.e., United States v. Brady, supra,] since if they are not believed a reasonable doubt of guilt would be created.’ State v. Grasso, 172 Conn. 298, 302, 374 A.2d 239 (1977).” State v. Storlazzi, 191 Conn. 453, 462, 464 A.2d 829 (1983); see also Giglio v. United States, supra; State v. Monteeth, supra. There can be no question that the victim’s testimony was crucial to the petitioners’ convictions and that the suppressed evidence, if disclosed and admitted, would directly have contradicted her testimony on a material element of the crime of sexual assault in the first degree, i.e., consent. Therefore, we determine that the trial court did not abuse its discretion when it found that a reasonable probability existed that, if the suppressed evidence had been disclosed and admitted, the result of the criminal trial would have been different. Clearly, such evidence undermines confidence in the outcome of the trial. United States v. Bagley, supra.

Consequently, we conclude that the trial court did not abuse its discretion in granting the joint petition for a new trial. Although the suppressed evidence related directly only to an element of one of the charged crimes, i.e., sexual assault in the first degree, a new trial is required on all counts of the respective informations against the petitioners given the nature of such evidence and its profound relevancy to the victim’s credibility as a witness.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 52-270 (a) provides: “causes for which new trials may be granted, (a) The superior court may grant a new trial of any action that may come before it, for mispleading, the discovery of new evidence or want of actual notice of the action to any defendant or of a reasonable opportunity to appear and defend, when a just defense in whole or part existed, or the want of actual notice to any plaintiff of the entry of a non-suit for failure to appear at trial or dismissal for failure to prosecute with reasonable diligence, or for other reasonable cause, according to the usual rules in such cases. The judges of the superior court may in addition provide by rule for the granting of new trials upon prompt request in cases where the parties or their counsel have not adequately protected their rights during the original trial of an action.”

       “[Practice Book] Sec. 902. [motion for a new trial]--in GENERAL
      “Upon motion of the defendant, the judicial authority may grant him a new trial if it is required in the interests of justice. Unless the defendant’s noncompliance with these rules or with other requirements of law bars his asserting the error, the judicial authority shall grant the motion:
      “(1) For an error by reason of which the defendant is constitutionally entitled to a new trial; or
      “(2) For any other error which the defendant can establish was materially injurious to him.
      “If the trial was by the court and without a jury, the judicial authority, with the defendant’s consent and instead of granting a new trial, may vacate any judgment entered, receive additional evidence, and direct the entry of a new judgment.”

       General Statutes § 53a-70 (a) provides: “sexual assault in the first degree: class b felony: one year not suspendable. (a) A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person.”
      General Statutes § 53a-135 (a) provides: “robbery in the second degree: class c felony, (a) A person is guilty of robbery in the second degree when he commits robbery and (1) he is aided by another person actually present; or (2) in the course of the commission of the crime or of immediate flight therefrom he or another participant in the crime displays or threatens the use of what he represents by his words or conduct to be a deadly weapon or a dangerous instrument.”
      General Statutes § 53a-95 (a) provides: “unlawful restraint in the first degree: class d felony, (a) A person is guilty of unlawful restraint in the first degree when he restrains another person under circumstances which expose the latter to a substantial risk of physical injury.”

       General Statutes § 54-86f provides: “admissibility of evidence of sexual conduct. In any prosecution for sexual assault under sections 53a-70, 53a-70a, and 53a-71 to 53a-73a, inclusive, no evidence of the sexual conduct of the victim may be admissible unless such evidence is (1) offered by the defendant on the issue of whether the defendant was, with respect to the victim, the source of semen, disease, pregnancy or injury, or (2) offered by the defendant on the issue of credibility of the victim, provided the victim has testified on direct examination as to his or her sexual conduct, or (3) any evidence of sexual conduct with the defendant offered by the defendant on the issue of consent by the victim, when consent is raised as a defense by the defendant, or (4) otherwise so relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights. Such evidence shall be admissible only after a hearing on a motion to offer such evidence containing an offer of proof. On motion of either party the court may order such hearing held in camera, subject to the provisions of section 51-164x. If the proceeding is a trial with a jury, such hearing shall be held in the absence of the jury. If, after hearing, the court finds that the evidence meets the requirements of this section and that the probative value of the evidence outweighs its prejudicial effect on the victim, the court may grant the motion. The testimony of the defendant during a hearing on a motion to offer evidence under this section may not be used against the defendant during the trial if such motion is denied, except that such testimony may be admissible to impeach the credibility of the defendant if the defendant elects to testify as part of the defense.”

       For purposes of ruling upon the petitioners’ General Statutes § 52-270 petition for new trial, the parties stipulated on the record in open court to incorporate into this record the evidence and testimony adduced at the criminal trial, the testimony of the posttrial evidentiary hearing, i.e., October 15,1985, and the respective pleadings and briefs from the criminal proceedings. The petition for a new trial was heard and decided by the same judge who had presided over the criminal trial.

       The card did not reveal the details surrounding the arrest for prostitution nor did it clearly reflect a specific disposition of these charges. In addition, at oral argument before this court on May 31, 1988, the petitioners’ counsel represented that the criminal charges against the victim that arose from her arrest in May, 1981, had yet to result in a final disposition. He further represented that the victim’s Alford plea to a charge of disorderly conduct had been vacated subject to the victim paying costs and that, apparently, she had yet to do so. North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

         On September 6,1985, and October 3,1985, respectively, Demers and Corcoran filed motions for a new trial after having discovered the existence and content of the police arrest report of Sergeant Wallace. A joint evidentiary hearing was held on the motions on October 14, 1985. In a written memorandum of decision dated December 6, 1985, the trial court, J. Healey, J., denied the motions on the ground that the court lacked jurisdiction to grant the motions given the pending appeals to the Supreme Court. Thereafter, the petitioners filed motions for reconsideration and for findings of essential facts. In a written memorandum of decision dated March 24,1986, the trial court again denied that it had jurisdiction to grant the petitioners’ motions. Nevertheless, the court went on to make various findings of fact to obviate the need for a remand in the event this court determined in the pending appeals that the trial court had jurisdiction to grant the motions for “new trial.” Subsequently, on May 7,1986, the petitioners filed the instant petition for a new trial.

       “[EJvidence is relevant only when it tends to establish the existence of a material fact or to corroborate other direct evidence in the case.” State v. Ruffin, 206 Conn. 678, 684, 539 A.2d 144 (1988); see also Dunham v. Dunham, 204 Conn. 303, 324, 528 A.2d 1123 (1987). Stated otherwise, “[rjelevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue.” C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.) § 8.1.1, p. 225.

       During her trial testimony, the victim explained that in the streets “to party” means to engage in sexual acts.

       Our decision is dispositive of the related issues raised by the state, i.e., that the evidence was merely cumulative, that the information contained in the report was not “newly discovered” evidence under General Statutes § 52-270 and that the nondisclosure of the information did not violate the petitioners’ right to due process, and do not address those issues further.


source: Caselaw Access Project

author: Peters, C. J.

license: Public Domain

text:
    Mack Financial Corporation v. Frank G. Crossley et al.
    (13356)
    Peters, C. J., Healey, Shea, Callahan and Covello, Js.
    Argued October 6
    decision released November 15, 1988

      Bryan L. LeClerc, for the appellants (defendants).

      Robert H. Hall, with whom was E. Huntington Deming, for the appellee (plaintiff).
   Peters, C. J.

The sole issue in this case is whether the principles governing the liquidation of commercial security interests are superseded by a provision in a security agreement that expressly incorporates, by statutory reference, the procedures governing the foreclosure of consumer installment sales. The plaintiff, Mack Financial Corporation, brought this action, as the assignee of a purchase money security interest in a used trailer truck, to recover a deficiency judgment from the buyers of the truck, the defendants Frank G. Crossley, Joyce Crossley and John W. Brundage. Because of the plaintiffs failure to comply with statutory notice requirements, the trial court first granted the defendants’ motion for a directed verdict, but thereafter granted the plaintiff’s motion to set aside the verdict and for a new trial. The defendants have appealed. We find error.

The facts relevant to this appeal are as follows. On July 27,1982, the defendants bought a used Mack tractor trailer truck from Bridgeport Mack Trucks, Inc., for $18,525.36. The defendants intended to use, and did use, the truck to haul goods for hire. The contract of sale, denominated a “retail installment contract,” created a security interest on behalf of the seller or its assignee to secure payment of the defendants’ outstanding indebtedness. The seller immediately assigned all of its rights in the contract to the plaintiff, and the defendants, duly notified, agreed to make the required payments directly to the plaintiff. After the truck broke down in Oregon on January 14, 1983, the defendants ceased making further payments. The plaintiff repossessed the truck peacefully and resold it, in Oregon, for $1700, without giving the defendants the required notification of its resale plans.

Whether these events permit the plaintiff to recover a deficiency judgment from the defendants is a question that turns, as the parties acknowledge, on the proper interpretation of one of the conditions of the installment contract, a contract drafted by the plaintiff. The contract provides: “In the event that the cash price of the property is $25,000.00 or less and buyer shall default in any of the terms and conditions of this contract, seller shall proceed in accordance with Section 42-98 of the Connecticut General Statutes to the extent that the procedure set forth in the preceding paragraph of this contract is inconsistent with the provisions of said section.” The plaintiff maintains that, with respect to a deficiency judgment, this provision is strictly gratuitous, while the defendants maintain that noncompliance with § 42-98 defeats the plaintiffs cause of action. We agree with the defendants.

To place this question into context, it is important to clarify three subsidiary matters not seriously at issue: (1) the fact of the plaintiffs noncompliance with statutory requirements for written notification of sale; (2) the legal consequence of such noncompliance in a commercial secured transaction; and (3) the legal consequence of such noncompliance in a transaction involving the purchase of consumer goods for consumer purposes. Each of these matters warrants only brief discussion.

During the presentation of its case-in-chief, the plaintiff introduced no evidence that it had given the defendants any written notice expressly informing the defendants of the plaintiffs intent to resell the repossessed truck either at a public or at a private sale. For consumer transactions, such written notification is a procedural requirement of § 42-98 (d). A similar requirement, less specific in its details, governs commercial transactions under the Uniform Commercial Code, General Statutes § 42a-9-504 (3). In the absence of any proffer of documentation demonstrating the required written notification, the plaintiff at oral argument in this court conceded that it had failed to comply with the notification requirement of either of these statutes. See Connecticut Bank & Trust Co. v. Incendy, 207 Conn. 15, 21-24, 540 A.2d 32 (1988).

For entirely commercial transactions, this court in Connecticut Bank & Trust Co. v. Incendy, supra, 27-28, recently discussed the consequence of noncompliance with the statutory notification requirements of § 42a-9-504 (3). We there held that the failure to provide the required notification serves to limit but not to preclude a creditor’s action for a deficiency judgment. Id. The defendants do not contest the proposition that, if Incendy applies, their motion for a directed verdict was correctly denied because of the plaintiff’s effort, at trial, to make a factual showing of “the amount that should reasonably have been obtained through a sale conducted in accordance with the ‘commercially reasonable’ requirements of the code.” Id., 27.

For entirely consumer transactions, by contrast, Connecticut case law has assigned a more serious consequence to a failure to give the notification of sale that § 42-98 (d) makes a procedural requirement. We must bear in mind that we are dealing with consumer legislation, whose interpretation is to be guided by its remedial purpose of protection for retail buyers. Barco Auto Leasing Corporation v. House, 202 Conn. 106, 116, 520 A.2d 162 (1987); Rhodes v. Hartford, 201 Conn. 89, 95, 513 A.2d 124 (1986). In construing a similar provision in a related section, General Statutes § 42-84, which prescribes the informational content of retail installment contracts, we held compliance with that statutory requirement to be mandatory. Keyes v. Brown, 155 Conn. 469, 474-75, 232 A.2d 486 (1967). Relying on Keyes v. Brown, the Appellate Session held compliance with § 42-98 (d) to be equally mandatory and refused to permit the recovery of a deficiency judgment when proper notification of resale had not been sent. Colt Employees Federal Credit Union v. Lagassie, 30 Conn. Sup. 604, 606, 316 A.2d 512 (1973), cert. denied, 166 Conn. 660, 314 A.2d 780 (1974). We agree with the holding in that case, as does the plaintiff, whose brief concedes that it would not be entitled to a deficiency judgment had the defendants been “retail buyers.”

We can therefore restate the question that we must resolve as follows. If a secured creditor, having reason to know of a secured buyer’s intention to use contract goods for commercial purposes, denominates the security agreement as a “retail installment contract,” incorporates therein a reference to consumer procedures, and thereafter fails to comply with the referenced consumer procedures, does this procedural default trigger the deficiency rules that apply to commercial transactions or the deficiency rules that apply to consumer transactions?

The trial court resolved this question in favor of the plaintiff. In its memorandum of decision setting aside the verdict, the court concluded that the evidence unquestionably established that: (1) the plaintiff did not satisfy the notice requirements of § 42-98; and (2) the defendants bought their truck, for $18,500, in order to haul goods for hire. In these circumstances, the court concluded that “literal compliance” with the statute was not mandatory because the transaction in this case involved not consumer goods but equipment, as those terms are defined in the Uniform Commercial Code, General Statutes § 42a-9-109. We agree with the trial court’s factual findings, but disagree with its legal conclusion.

Commercial contracting parties have considerable freedom to determine the remedial rights that will ensue upon breach. Such authority is expressly conferred upon buyers and sellers of goods in article 2 of the Uniform Commercial Code, General Statutes § 42a-2-719. Absent some cogent reason such as mistake or unconscionability, there is no reason why a court should not enforce the bargain that the parties have made. Leonard Concrete Pipe Co. v. C. W. Blakeslee & Sons, Inc., 178 Conn. 594, 598, 424 A.2d 277 (1979).

In this case, the parties’ bargain imposes upon the seller or its assignee the burden of complying fully with consumer procedures that would otherwise not be mandatory in this commercial context. Particularly when it is the commercial seller whose drafting has imposed this burden upon itself, we are of the view that the contract should be enforced according to its terms. See Greenwich Contracting Co. v. Bonwit Construction Co., 156 Conn. 123, 130, 239 A.2d 519 (1968). The plaintiff’s construction of the contract would attribute no operative meaning whatsoever to the contract’s express incorporation of § 42-98. “Parties generally do not insert meaningless provisions in their agreements and therefore every provision must be given effect if reasonably possible. A. M. Larson Co. v. Lawlor Ins. Agency, Inc., 153 Conn. 618, 621-22, 220 A.2d 32 (1966). We cannot say that the deliberate reference to a specific statutory section constitutes a meaningless gesture by the parties.” Hatchco Corporation v. Della Pietra, 195 Conn. 18, 23, 485 A.2d 1285 (1985). As written, this contract’s reference to § 42-98 can only be given meaningful effect by construing its notification requirements to be as mandatory for this seller and the plaintiff, its assignee, as they would be for any other financier of a consumer transaction. So construed, the contractual reference to § 42-98 makes proper notification of resale a prerequisite to the plaintiff’s deficiency action. In the absence of proof of such notification, the defendants were entitled to a directed verdict. The trial court’s conclusion to the contrary was erroneous.

There is error, the judgment is set aside and the case is remanded with direction to render judgment for the defendants.

In this opinion the other justices concurred.

       General Statutes § 42-98 (d) provides in relevant part: “If the retail buyer does not redeem such goods within fifteen days after the holder of the contract has retaken possession, the holder of the contract shall sell such goods at public or private sale which sale may be held not less than fifteen days and shall be held not more than one hundred eighty days after the retaking. . . . The holder of the contract shall give the retail buyer not less than ten days’ written notice of the time and place of any public sale, or the time after which any private sale or other intended disposition is to be made, either personally or by registered mail or by certified mail receipted for on mailing directed to the retail buyer at his last-known place of business or residence.”

       General Statutes § 42a-9-504 (3) provides in relevant part: “Disposition of the collateral may be by public or private proceedings .... Unless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor, if he has not signed after default a statement renouncing or modifying his right to notification of sale. . . .”

       In completing the written statements in which they applied for financing for their truck purchase, the defendants disclosed their intent to use the truck for a proprietorship that was engaged in the business of trucking.

       General Statutes § 42a-9-109 provides in relevant part: “Goods are (1) ‘consumer goods’ if they are used or bought for use primarily for personal, family or household purposes; (2) ‘equipment’ if they are used or bought for use primarily in business, including farming or a profession . . . .”

       General Statutes § 42a-2-719 provides in relevant part: “(1) Subject to the provisions of subsections (2) and (3) of this section and of the preceding section on liquidation and limitation of damages, (a) the agreement may provide for remedies in addition to or in substitution for those provided in this article and may limit or alter the measure of damages recoverable under this article . . . .”


author: Per Curiam. Arthur H. Healey, J.,

text:
    State of Connecticut v. Joseph J. Trantolo, Jr.
    (13401)
    Peters, C. J., Healey, Shea, Callahan, Glass, Covello and Hull, Js.
    Argued October 4
    decision released November 15, 1988

      Alexandra Davis, with whom was Vincent J. Trantolo, for the appellant (defendant).

      John O’Meara, deputy assistant state’s attorney, with whom were Steven Sellers, assistant state’s attorney, and, on the brief, Bernadette Conway, deputy assistant state’s attorney, for the appellee (state).
   Per Curiam.

The defendant, Joseph Trantolo, was convicted, after a court trial, of failure to carry a fire extinguisher, in violation of General Statutes § 15-129 (a) (5), and failure to carry a personal flotation device, in violation of General Statutes § 15-129 (a) (1). He was sentenced to pay a fine of $75 plus costs on each of these two counts. During the pendency of the defendant’s appeal from this conviction, he died. His appeal was thereafter transferred from the Appellate Court to this court pursuant to Practice Book § 4023.

From the briefs and the oral arguments, it has become clear that, in this case, there is neither allegation nor evidence that the fine levied against the defendant at trial would be collectible from his estate or that the judgment will otherwise affect its interests. On this state of the record, the defendant’s appeal must be dismissed as moot.

In this opinion Peters, C. J., Shea, Callahan, Glass, Covello and Hull, Js., concurred.

The appeal is dismissed.

Arthur H. Healey, J.,

dissenting. I do not agree with the majority’s decision that “the defendant’s appeal must be dismissed as moot.” Rather, I would go further in this case on the issue of mootness and dismiss the entire proceedings ab initio. Specifically, my view is that this entire case be remanded with direction to vacate the judgment of conviction and to dismiss the information because of the defendant’s death pending his appeal to this court.

First, because of the “defective pleading” approach of the majority decision on this appeal, which was fully argued to us sitting en banc, and because that decision states no legal authority as to its basis, it is necessary that some additional background circumstances be set out. On October 30, 1987, the defendant, Joseph J. Trantolo, Jr., since deceased, was found guilty, after a trial, of two counts of a three count information. The guilty findings, both of which were only infractions, involved a violation of General Statutes § 15-129 (a) (5) and (1). On November 4,1987, the trial court imposed a fine of $75 plus costs on each count. Thereafter, the defendant’s motion to reargue was heard and the trial court reaffirmed its earlier decision on November 24, 1987. The defendant filed an appeal to the Appellate Court on December 11, 1987. The defendant died on December 23,1987, during the pendency of his appeal. On March 3, 1988, the Appellate Court, sua sponte, scheduled argument on the issue of mootness. Thereafter, and prior to the scheduled argument before the Appellate Court, this court transferred the appeal to itself. See Practice Book § 4023.

In addition, because the order of the majority cites no legal authority, I must assume that Connecticut cases such as State v. Raffone, 161 Conn. 117, 285 A.2d 323 (1971), and State v. Grasso, 172 Conn. 298, 374 A.2d 239 (1977), furnish, sub silentio, authority for the order of dismissal of this appeal. This appeal was argued before us en banc and both Raffone and Grasso were cited in the briefs and at oral argument. Neither case, however, requires the result ordered in this case.

In Raffone, the three defendants were found guilty by a jury of larceny and theft, and each was given a prison sentence. After an appeal was taken to this court, one defendant, Arcangelo, died before the appeal was heard. Because his “counsel conceded that Arcangelo’s appeal was moot,” we ordered that “due to the death of Arcangelo, the appeal, as to him, is dismissed as moot, as conceded by counsel.” (Emphasis added.) State v. Raffone, supra, 119, 120. We have no such concession in this case. Moreover, unlike this appeal, no fines were imposed in Raffone but only incarceration. In Grasso, an arson case, both Grasso and his codefendant Pastore appealed from their convictions to this court. Each defendant had been given prison sentences. No fines were imposed. Pastore died “[after argument on the appeal” (emphasis added) and we simply said that the “appeal is therefore moot as to him.” State v. Grasso, supra, 299. Raffone and Grasso, on analysis, are inapposite.

A judgment of conviction is not final until any appeal of right, filed before a defendant’s death, has been resolved because the potential of reversal persists to that point. We, of course, do not presume error, but while a trial court’s judgment has a presumption of validity, the crux of such a presumption is its vulnerability to refutation on appeal. This obviously will not occur in this case. Not only has the death of the defendant rendered the enforcement of the trial court’s judgment impossible, but it also has withdrawn him from the jurisdiction of the court. See Arizona v. Griffin, 121 Ariz. 538, 592 P.2d 372 (1979 en banc); State v. Kreichbaum, 219 Iowa 457, 258 N.W. 110 (1934). In addition, the position of the majority thoroughly insulates the decision of the trial court from any vulnerability of reversal. I question the justice of the result in this case.

The purposes for the enforcement of the criminal laws are the punishment and the rehabilitation of the guilty; here, death has prevented the furtherance of either objective. Yet, although the defendant’s right of appeal was as assured as his right to make a defense, the majority’s position leaving extant the conviction means that this is truly a case where, from any fair prospective of fundamental justice, there is “no unsuccessful party; nor a successful one.” State v. Kreichbaum, supra, 464. This is troublesome. It is impossible to understand how the trial court’s judgment truly can be regarded as final, without having been affirmed on appeal and certainly when the question of the defendant’s guilt or innocence has not been finally determined at the time of his death. Even if error were found on appeal, it could not result in the defendant’s vindication as that could well result only in a new trial which his death has made impossible—but the conviction lives on.

It appears that a majority of courts have held that the death of a defendant pending his appeal of a conviction that includes a fine abates not only the appeal but all the proceedings ab initio including the fine. See, e.g., Crooker v. United States, 325 F.2d 318 (8th Cir. 1963); State v. Stotter, 67 Idaho 210, 175 P.2d 402 (1946); People v. Mazzone, 74 Ill. 2d 44, 383 N.E.2d 947 (1978); State v. Clark, 260 N.W.2d 370 (S.D. 1977). Moreover, the great majority of courts that have considered the problem have ruled that death pending appellate review of a criminal conviction abates not only the appeal but also the proceedings had in the prosecution ab initio. See annot., 83 A.L.R.2d 864. This is clearly so where a defendant dies, as here, pending a direct appeal as of right of his criminal conviction. See, e.g., United States v. Mollica, 849 F.2d 723 (2d Cir. 1988); United States v. Pauline, 625 F.2d 684, 685 (5th Cir. 1980); United States v. Chin, 633 F. Sup. 624 (E.D. Va. 1986); State v. Gomes, 57 Haw. 271, 554, P.2d 235 (1976); People v. Mazzone, supra; State v. Holbrook, 261 N.W.2d 480, 481 (Iowa 1978); State v. Clark, supra.

On the facts of this case and on this record, which only involve infractions, I would dismiss not only the appeal, but all the proceedings in this matter ab initio.

Therefore, I dissent.

       No serious question has been raised of the state’s inability to enforce the collection of the fines and costs against the estate of the deceased defendant.

       In State v. Raffone, 161 Conn. 117, 285 A.2d 323 (1971), we pointed out that after we heard oral argument in that case, we were apprised of the ruling in Durham v. United States, 401 U.S. 481, 91 S. Ct. 858, 28 L. Ed. 2d 200 (1971) (entire proceedings dismissed ab initio where appellant dies during appeal as of right). As to the import of Durham, we said: “[W]e decline either affirmatively to adopt or reject the majority rule there enunciated.” State v. Raffone, supra, 120. Rather, we relied wholly on the concession of Arcangelo’s counsel.

       I note that while the state has no further interest or ability to enforce the judgment of conviction, there may possibly be others who are or may be affected, including the family of such a deceased appellant. Some courts who endorse the dismissal ab initio view have considered the interest of a surviving family vis-a-vis the memory or reputation of a deceased appellant a legally significant factor in arriving at the ab initio result. See, e.g., State v. Gomes, 57 Haw. 271, 554 P.2d 235 (1976) (rape in the first degree); State v. Morris, 328 So. 2d 65 (La. 1976) (possession of marihuana—second offense); State v. Blake, 53 Ohio App. 2d 101, 371 N.E.2d 843 (1977) (receiving stolen property).


author: Callahan, J.

text:
    The Glastonbury Company et al. v. Peter W. Gillies, Insurance Commissioner, et al.
    (13431)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.
    Argued October 5
    decision released November 15, 1988

      Jane D. Comerford, assistant attorney general, with whom, on the brief, was Joseph 1. Lieberman, attorney general, for the appellant (named defendant).

      Daniel L. FitzMaurice, with whom were Harvey A. Katz and, on the brief, Allan B. Taylor, for the appellees (plaintiffs).

      Peter T. Zarella and Steven W. Varney filed a brief for the department of banking as amicus curiae.
   Callahan, J.

This case involves the eligibility of a subsidiary of a lending institution and one of its officers to be licensed to sell insurance under the provisions of General Statutes § 38-72a (b) and (c). Under such provisions the state insurance commissioner cannot issue a license to sell fire, casualty, life or health insurance to a bank subsidiary or to any of its officers or employees. Such organizations, however, lawfully licensed on October 1,1973, in the case of fire and casualty insurance, and on October 1, 1980, in the case of health and life insurance, are exempt or “grandfathered” from the prohibitions of § 38-72a. The principal issue raised on appeal is whether the grandfather clauses in § 38-72a (b) and (c) require an exempt bank subsidiary to be licensed continuously in order to remain exempt under the statute.

The plaintiffs, The Glastonbury Company, a subsidiary of the Glastonbury Bank and Trust Company, and its vice president and secretary, Albert S. Birrell, appealed to the Superior Court from a decision of Peter W. Gillies, the state insurance commissioner (commissioner), rescinding their licenses to sell insurance. After a hearing, the trial court ruled in the plaintiffs’ favor. The insurance commissioner appealed to the Appellate Court and, thereafter, this court transfered the appeal to itself pursuant to Practice Book § 4023. On appeal, the state department of banking has filed a brief as amicus curiae in support of the plaintiffs. We find no error.

The facts, as stipulated to by the parties, indicate that the named plaintiff, The Glastonbury Company (company), was licensed to sell fire and casualty insurance as of October 1,1973, and life and health insurance as of October 1, 1980, thereby making it an exempt or “grandfathered” organization under both subsections (b) and (c) of § 38-72a. In 1974, however, the company sold its entire insurance business and contractually promised not to engage in that business in Glastonbury or in any contiguous towns for at least five years. With the exception of a license to sell life and health insurance, all the company’s licenses were, at that time or shortly thereafter, either transferred in the sale, can-celled or allowed to lapse. The company did continue to hold a viable license to sell life and health insurance on October 1, 1980. It allowed that license to lapse, however, on May 1, 1981.

In 1983, approximately one year after its license to sell life and health insurance lapsed, the company was relicensed by the insurance commissioner as an agency for both of these lines. In 1984, after approximately a nine year lapse, the company was relicensed by the commissioner as an agency for fire and casualty insurance. The company was also relicensed as a broker in all lines of insurance in 1984. Birrell was licensed as a broker in fire and casualty insurance in 1984, as an agent in 1985, and has been employed by the company since 1985.

On February 24, 1987, the commissioner rescinded all the plaintiffs’ insurance licenses stating that they had been “issued in error” as the company was in violation of § 38-72a. The commissioner concluded that, although the company had been, at one time, exempt from the prohibitions of § 38-72a, it had lost its exempt status because it failed to hold its licenses continuously after the dates for exemption set forth in the statute. Since the company was a nonexempt subsidiary of a lending institution under § 38-72a, the commissioner also concluded that Birrell, as an officer or employee of a nonexempt subsidiary, had been issued his licenses in error. In rescinding the plaintiffs’ licenses, the commissioner rejected the plaintiffs’ claim that his prior issuance of the licenses estopped him from doing so.

The plaintiffs appealed the commissioner’s decision to the trial court asserting that the “[commissioner’s] construction of the grandfather clauses in . . . § 38-72a was substantively and procedurally improper; and [the commissioner] improperly denied [the plaintiffs’] claim of estoppel.” Relying on its interpretation of § 38-72a (b) and (c), the trial court reversed the commissioner’s decision and held that the grandfather clauses of the statute do not impose a requirement of “continuous licensure.”

The principal claim raised by the commissioner on appeal is that the trial court erred in reversing his decision to rescind the plaintiffs’ licenses to sell insurance. He argues that § 38-72a (b) and (c) are ambiguous because their grandfather clauses fail to provide for the situation at hand. According to the commissioner, the failure of the statute to mention the effect of the lapse or expiration of an insurance license creates an ambiguity. This ambiguity, the commissioner argues, compels the court to construe § 38-72a in light of its purpose and legislative history and apply a narrow interpretation to its grandfather clauses that requires continuous licensure. We disagree that the statute is ambiguous and refuse to adopt a construction that would create such a requirement.

It is our duty to “interpret statutes as they are written.” Muha v. United Oil Co., 180 Conn. 720, 730, 433 A.2d 1009 (1980). “Courts cannot, by construction, read into statutes provisions which are not clearly stated.” Robinson v. Guman, 163 Conn. 439, 444, 311 A.2d 57 (1972); Johnson v. Manson, 196 Conn. 309, 314, 493 A.2d 846 (1985), cert. denied, 474 U.S. 1063, 106 S. Ct. 813, 88 L. Ed. 2d 787 (1986); Houston v. Warden, 169 Conn. 247, 251-52, 363 A.2d 121 (1975). “[T he intent of the legislature is to be found not in what it meant to say but in what it did say.” Federal Aviation Administration v. Administrator, 196 Conn. 546, 549-50, 494 A.2d 564 (1985); State v. Smith, 194 Conn. 213, 222, 479 A.2d 814 (1984); Gomeau v. Forrest, 176 Conn. 523, 526, 409 A.2d 1006 (1979); see also Burnham v. Administrator, 184 Conn. 317, 325, 439 A.2d 1008 (1981); Colli v. Real Estate Commission, 169 Conn. 445, 452, 364 A.2d 167 (1975). A statute “does not become ambiguous merely because the parties contend for different meanings.” Luttrell v. Luttrell, 184 Conn. 307, 310-11, 439 A.2d 981 (1981); Caldor, Inc. v. Heffernan, 183 Conn. 566, 571, 440 A.2d 767 (1981); see also State Medical Society v. Board of Examiners in Podiatry, 208 Conn. 709, 721, 546 A.2d 830 (1988). Given an unambiguous statute, “it is assumed that the words themselves express the intent of the legislature . . . and there is no need to construe the statute.” (Citations omitted.) Federal Aviation Administration v. Administrator, supra, 549-50; State v. Smith, supra, 221; Bell v. Planning & Zoning Commission, 173 Conn. 223, 226, 377 A.2d 299 (1977); Houston v. Warden, supra, 251; Hartford Hospital v. Hartford, 160 Conn. 370, 375-76, 279 A.2d 561 (1971).

The commissioner conceded in both his brief and at oral argument that § 38-72a (b) and (c) “offers no guidance as to whether a lapse in licensing would operate to subsequently divest one of a previously conferred exemption from the bank affiliation licensure disqualification.” (Emphasis added.) Instead, he cites both Board of Trustees v. Commissioner, 1 Conn. App. 22, 25, 467 A.2d 925 (1983), and Board of Trustees v. Freedom of Information Commission, 181 Conn. 544, 550, 436 A.2d 266 (1980), for the proposition that where the words of a statute fail to provide for a particular situation, it is necessary to look beyond the literal wording of the statute. In both Board of Trustees v. Commissioner and Board of Trustees v. Freedom of Information Commission, however, we were seeking to interpret a statute by defining words in the statute. The instant case involves a very different scenario; the grandfather clauses in § 38-72a (b) and (c) say absolutely nothing about the consequences to an exempt organization if it allows its insurance licenses to lapse. Absent such language by the legislature, this court cannot “engraft amendments onto the statutory language.” Burnham v. Administrator, supra, 325; State Medical Society v. Board of Examiners in Podiatry, supra, 727. If the legislature had desired a continuous licensure requirement under § 38-72a (b) and (c) it could have inserted it into the statute. It is not the prerogative of the insurance commissioner or the court to do so. As we have stated in numerous other cases, “it is not the province of a court to supply what the legislature chose to omit. The legislature is supreme in the area of legislation, and courts must apply statutory enactments according to their plain terms.” Federal Aviation Administration v. Administrator, supra; In re Petition of State’s Attorney, Cook County, Illinois, 179 Conn. 102, 107, 425 A.2d 588 (1979); Weingarten v. Allstate Ins. Co., 169 Conn. 502, 507-508, 363 A.2d 1055 (1975).

The commissioner insists, however, that the silence of the statute concerning the effects of the lapse of licensure on a grandfathered organization makes the statute at least latently ambiguous. To support his claim, the commissioner maintains that cases from other jurisdictions interpreting similar grandfather clauses, which do not have explicit language requiring continuous licensure, are narrowly interpreted to deny grandfather status in instances where a license has lapsed after having been grandfathered. See Rich v. Board of Optometry, 242 Cal. App. 2d 598, 51 Cal. Rptr. 674 (1966); People ex rel. Bagley v. Hamilton, 25 App. Div. 428, 49 N.Y.S. 605 (1898); Matter of Lewis, 26 Misc. 532, 57 N.Y.S. 676 (1899). Since the legislature is presumed to know the existing state of the law when it enacts a statute; see State v. Dabkowski, 199 Conn. 193, 201, 506 A.2d 118 (1986); the commissioner asserts that the legislature must have intended that § 38-72a (b) and (c) be narrowly interpreted to defeat the exemptions in this case.

If we accept the commissioner’s argument that § 38-72a (b) and (c) do contain a latent ambiguity, we must review the legislative history of those subsections. See Rhodes v. Hartford, 201 Conn. 89, 93, 513 A.2d 124 (1986); DeFonce Construction Corporation v. State, 198 Conn. 185, 187, 501 A.2d 745 (1985); Peck v. Jacquemin, 196 Conn. 53, 64, 491 A.2d 1043 (1985); Dukes v. Durante, 192 Conn. 207, 214, 471 A.2d 1368 (1984); Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 8, 434 A.2d 293 (1980). Such a review, however, reveals more support for the plaintiffs’ position than for that of the commissioner’s.

While the obvious overall intent of the legislature in enacting § 38-72a was to separate lending institutions from the insurance business; see Conn. Joint Standing Committee Hearings, Insurance and Real Estate, 1973 Sess., pp. 181-85; the legislative history specifically discussing the grandfather clause in § 38-72a (b) indicates that a continuous licensing requirement was considered by the drafters, inserted in the original bill, and was subsequently deleted from the statute. As originally drafted, the grandfather clause in the proposed bill read as follows: “provided any such person or organization which was lawfully licensed to sell fire and casualty insurance on January 1, 1973, may continue to hold such licenses until its cancellation, termination or expiration.” Conn. Substitute Senate Bill No. 2124, 1973 Sess. This language was subsequently amended to read: “provided this subsection shall not apply to any such person or organization which was lawfully licensed to sell fire and casualty insurance on October 1, 1973.” General Statutes § 38-72a(b). The deletion by the legislature of language expressly covering terminated or expired licenses persuades us that it was not its intent to require grandfathered institutions to be continously licensed in order to remain exempt under the statute. “The rejection by the Legislature of a specific provision contained in an act as originally introduced is most persuasive to the conclusion that the act should not be construed to include the omitted provision.” (Emphasis added.) Rich v. Board of Optometry, 235 Cal. App. 2d 591, 607, 45 Cal. Rptr. 512 (1965); Board of Barber Examiners v. Walker, 67 Ariz. 156, 164, 192 P.2d 723 (1948); Gilbertson v. McLean, 216 Or. 629, 642, 341 P.2d 139 (1959); see Pennsylvania R.R. Co. v. International Coal Mining Co., 230 U.S. 184, 198-99, 33 S. Ct. 893, 57 L. Ed. 1446 (1913); see also Turpin v. Mailet, 579 F.2d 152 (2d Cir. 1978) (in interpreting enacted provisions, it is appropriate to review their legislative history including provisions earlier rejected).

Accordingly, we hold that the trial court did not err by refusing to engraft a continuous licensing requirement onto the unambiguous language of § 38-72a (b) and (c). Even if the language of the statute were latently ambiguous, its legislative history indicates that the legislature specifically rejected the policy of requiring an exempt organization to be continuously licensed in order to remain grandfathered. It is unnecessary to review the additional claims asserted by the plaintiffs.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 38-72a. licensure for sale of fire, casualty, LIFE AND HEALTH INSURANCE PROHIBITED TO LENDING INSTITUTIONS and bank holding companies, (a) As used in this section: (1) ‘Lending institution’ means any institution that accepts deposits and lends money, including banks, savings and loan associations and credit unions, but not including insurance companies; (2) ‘affiliate,’ ‘subsidiary’ and related terms shall be defined as in section 38-39a; (3) ‘bank holding company’ means and includes the definition of such term in Section 2 of an Act of Congress entitled the ‘Bank Holding Company Act of 1956,’ as amended; (4) ‘commissioner’ means the insurance commissioner.
      “(b) No license authorizing the sale of fire and casualty insurance shall be issued pursuant to section 38-72 to (1) a lending institution, or (2) a bank holding company, subsidiary or affiliate of a lending institution, or (3) an officer or employee of such lending institution, bank holding company, subsidiary or affiliate, provided this subsection shall not apply to any such person or organization which was lawfully licensed to sell fire and casualty insurance on October 1, 1973.
      “(c) No license authorizing the sale of life and health insurance shall be issued pursuant to section 38-72 to (1) a lending institution, or (2) a bank holding company, subsidiary or affiliate of a lending institution, provided this subsection shall not apply to any such organization which was lawfully licensed to sell life and health insurance on October 1,1980, or to any savings bank with respect to the sale of life insurance policies or annuity contracts issued pursuant to section 36-142. Life and health insurance shall not include credit life insurance as defined in section 38-250 or group life and disability insurance sold in connection with real estate mortgage loans.
      “(d) The insurance commissioner may promulgate regulations in order to effectuate the purposes of this section.”

       This case presents an unusual situation in that the insurance commissioner believes that the plaintiffs’ licenses should be rescinded while the department of banking has filed a brief as amicus curiae in support of the plaintiffs. Given the fact that the two state agencies are on opposite sides of the fence as to the issue at hand, there may be some question as to which agency’s interpretation of the statute should be given deference. Because we are presented with a question of law turning solely on the interpretation of a statute that has never before been interpreted in any administrative or judicial proceeding, we need not give special deference to either agency’s interpretation. See State Medical Society v. Board of Examiners in Podiatry, 208 Conn. 709, 717-19, 546 A.2d 830 (1988); Schlumberger Technology Corporation v. Dubno, 202 Conn. 412, 423, 521 A.2d 569 (1987).

       Although there was a lapse in the company’s licensing, the commissioner made no finding of abandonment. Further, there is nothing in the corporate minutes of The Glastonbury Bank and Trust Company to indicate that it ever intended to abandon the insurance business.

       While the courts in the cases cited by the commissioner do give a narrow interpretation to the grandfather clauses involved in those cases, it should be noted that all of those cases were decided on a finding of abandonment. The commissioner conceded at oral argument that he had made no finding of abandonment. See footnote 2, supra. Moreover, grandfather clauses are not always given a narrow interpretation. See National Assn. of Casualty & Surety Agents v. Board of Governors of the Federal Reserve System, 856 F.2d 282 (D.C. Cir. 1988); State ex rel. Krausmann v. Streeter, 226 Minn. 458, 33 N.W.2d 56 (1948); Matter of Tucker v. Board of Pharmacy, 127 Misc. 538, 217 N.Y.S. 217 (1926). Rather, these clauses are interpreted based on well established rules of statutory interpretation. See annot., 4 A.L.R.2d 667, 670. Rules of interpretation require that, absent a clear statute, courts should review the intent of the legislature in creating such an exemption when it drafted the statute. The legislative history at issue in Rich v. Board of Optometry, 242 Cal. App. 2d 598, 51 Cal. Rptr. 674 (1966), People ex rel. Bagley v. Hamilton, 25 App. Div. 428, 49 N.Y.S. 605 (1898), and Matter of Lewis, 26 Misc. 532, 57 N.Y.S. 676 (1899), indicated that the legislature did not intend the parties in those cases to be protected by the grandfather clauses in question. As will be pointed out infra, this is not so in the case at hand.

       The legislative history of General Statutes § 38-72a (c) does not disclose any specific discussion of its grandfather clause. That section, however, was enacted for the same purposes as § 38-72a (b) and essentially mimics its language. Therefore, legislative intent that can be gleaned from § 38-72a (b) is applicable to subsection (c).

       The commissioner argues that this amendment was technical in nature and meant only to clarify the statute. To support this argument, he cites the comments of Representative William A. Bevacqua. 16 H.R. Proc., Pt. 8, 1973 Sess., p. 3929. While it is true that Representative Bevacqua’s comments on the floor do discuss certain technical amendments, it appears that these comments were directed at amendments to language in other parts of the legislation.

       The commissioner urges us to read General Statutes § 38-72a as a whole to avoid an irrational and unworkable result. In support of this argument, he states that a reading of the statute allowing for noncontinuous licensure would make subsections (b) and (c) of § 38-72a irreconcilable. According to the commissioner, since subsection (b) prohibits the licensing of an officer or employee unless the officer or employee is grandfathered, and subsection (c) does not mention officers or employees, thus permitting licensing, organizations could, under the plaintiffs’ reading of the statute, continue their insurance operations ad infinitum under subsection (c) but be limited to the lifespan of the licensed officer or employee under subsection (b). This argument is unpersuasive. Common sense dictates that officers or employees of an exempt organization should be allowed to be licensed.


author: Glass, J.

text:
    Mark H. Swerdloff et al. v. AEG Design/Build, Inc.
    (13357)
    Peters, C. J., Shea, Callahan, Glass and Hull, Js.
    Argued October 5
    decision released November 15, 1988

      John M. Andreini, for the appellants (plaintiffs).

      Joseph P. Fasi, for the appellee (defendant).
   Glass, J.

The plaintiffs, Mark and Ileen Swerdloff, appeal from the trial court’s order reducing but not discharging a mechanic’s lien placed on their real property by the defendant, AEG Design/Build, Inc. The plaintiffs argue that the trial court erred in refusing to consider their claim, first articulated during final argument, that the mechanic’s lien was invalid because the underlying home improvement agreement was not in writing as required by the Home Improvement Act, General Statutes § 20-429. We find no error.

The facts relevant to this appeal are as follows. On June 2,1987, the defendant filed a mechanic’s lien on the plaintiffs’ property located on Linwold Drive in West Hartford. On June 9,1987, the plaintiffs filed an application to discharge the mechanic’s lien with the trial court. The application conformed to the format set forth in General Statutes § 49-35a (b). The plaintiffs did not refer to the Home Improvement Act in their application.

From June 22 through June 25,1987, the trial court held a hearing on the plaintiffs’ application to discharge the lien. During the hearing, brief testimony was elicited from one witness that the parties’ home improvement agreement was not in writing. The plaintiffs, however, did not refer to the Home Improvement Act during the evidentiary phase of the hearing. At the conclusion of the hearing, during final argument, the plaintiffs raised the claim that the lien was invalid under the Home Improvement Act. The trial court ruled that the act was not in issue and declined to consider the plaintiffs’ claim. On the basis of General Statutes §§ 49-35a and 49-35b, the court reduced but did not discharge the mechanic’s lien. On October 21,1987, the court denied the plaintiffs’ motion to reargue. The plaintiffs appealed to the Appellate Court, and the appeal was transferred to this court pursuant to Practice Book § 4023.

The dispositive issue in this case is whether the plaintiffs sufficiently raised the Home Improvement Act to place it in issue at the hearing. The plaintiffs argue that they could not refer to the act in their application because § 49-35a (b) prescribes a “boiler plate” form for lien discharge applications, which cannot be varied by different or additional terms. As a consequence, they contend that the trial court erred when it declined to consider their claim when raised during final argument.

Even assuming that § 49-35a (b) precluded the plaintiffs from raising the Home Improvement Act in their application, Practice Book § 285A nevertheless required the plaintiffs to state the claim distinctly. The plaintiffs do not suggest that § 49-35a (b) overrides the requirement that a claim be distinctly stated to the trial court. Because we conclude that the plaintiffs failed distinctly to raise the act as required by Practice Book § 285A, we do not address their contention that the statutory form of § 49-35a (b) excused them from raising the claim in their pleadings.

Practice Book § 285A provides that “[i]f a party intends to raise any claim of law which may be the subject of an appeal, he must either state the same distinctly to the court before his argument is closed or state it in a written trial brief. If this is not done, it will not be the duty of either the trial court or the appellate court to decide the claim.” See also Practice Book § 4185 (supreme court not bound to consider claim unless it was distinctly raised at trial or arose subsequent to trial). A claim is “distinctly” raised if it is “ ‘ “so stated as to bring to the attention of the court the precise matter on which its decision is being asked.” ’ ” (Emphasis omitted.) State v. Utz, 201 Conn. 190, 207, 513 A.2d 1191 (1986); State v. Carter, 198 Conn. 386, 396, 503 A.2d 576 (1986); Woodruff v. Butler, 75 Conn. 679, 682, 55 A. 167 (1903). A claim “briefly suggested” is not “distinctly raised.” McKiernan v. Caldor, Inc., 183 Conn. 164, 166, 438 A.2d 865 (1981); Silverman v. St. Joseph’s Hospital, 168 Conn. 160, 177, 363 A.2d 22 (1975).

It is well established that the trial court is entitled to decide a case on the theory on which it was tried. Silverman v. St. Joseph’s Hospital, supra, 176-77; Housing Authority v. Pezenik, 137 Conn. 442, 448, 78 A.2d 546 (1951); see also Lashgari v. Lashgari, 197 Conn. 189, 196, 496 A.2d 491 (1985) (cases reviewed on appeal on theory on which they were tried and decided at trial); McNamara v. New Britain, 137 Conn. 616, 618, 79 A.2d 819 (1951) (party cannot try case on one theory and appeal on other); Fischer Co. v. Morrison, 137 Conn. 399, 404, 78 A.2d 242 (1951). The purpose of the Practice Book rules requiring claims to be raised distinctly is to enable the trial court to give meaningful consideration to the legal issues in the case. See, e.g., Roche v. Fairfield, 186 Conn. 490, 505 n.14, 442 A.2d 911 (1982) (trial court’s failure to consider claim vaguely alluded to in complaint but not made in trial briefs or in argument not subject to review); Tragakiss v. Dowling, 183 Conn. 72, 75-76, 438 A.2d 818 (1981) (no error where trial court refused to rule on defenses where evidence to show defenses raised consisted of draft finding and assignment of errors); cf. Cahill v. Board of Education, 187 Conn. 94, 101, 444 A.2d 907 (1982) (where complaint drafted without setting forth facts that would call trial court’s attention to search for other grounds of relief, this court will not consider such grounds on appeal); Rybinski v. State Employees’ Retirement Commission, 173 Conn. 462, 465, 378 A.2d 547 (1977) (claim not reviewed on appeal where trial court had no opportunity to consider it). The requirement that claims be raised timely and distinctly also recognizes that counsel should not have the opportunity to surprise an opponent by interjecting a claim when opposing counsel is no longer in a position to present evidence against such a claim. Cf. State v. Kurvin, 186 Conn. 555, 566, 442 A.2d 1327 (1982) (permitting claims of error that could have been raised at trial to be raised first time on appeal encourages trials by ambuscade).

The plaintiffs in the present case did not distinctly raise their claim that the mechanic’s lien was invalid under the Home Improvement Act. Practice Book § 285A; see Frigon v. Enfield Savings & Loan Assn., 195 Conn. 82, 89, 486 A.2d 630 (1985) (plaintiff did not distinctly raise claim at trial where he failed to explore factual ambiguity despite chance to do so); Roche v. Fairfield, supra, 505 n.14; Tragakiss v. Dowling, supra, 75-76. The plaintiffs concede that they did not refer to the act at any time prior to final argument. As the plaintiffs acknowledge, regardless of whether the language of § 49-35a (b) excused them from specifically pleading the act’s applicability, nothing prevented them from asserting the act during the evidentiary phase of the hearing.

We are not persuaded that the reference to the Home Improvement Act during the plaintiffs’ final argument following incidental testimony pertaining to the nonexistence of a written contract “distinctly raised” the plaintiffs’ claim. Cf. Frigon v. Enfield Savings & Loan Assn., supra, 89. A review of the transcripts of the hearing indicates that the plaintiffs challenged the validity of the mechanic’s lien on a breach of contract theory with evidence that the defendant performed unsatisfactory work, did not follow instructions, grossly exceeded its estimate for the cost of the job, and charged the plaintiffs for redoing improperly completed work. The trial court was entitled to decide the case on the theory upon which it had been tried. Housing Authority v. Pezenik, supra, 448. The court was not obligated at the trial’s conclusion to reverse gears and reevaluate the case in light of a claim that bore only a tenuous relationship to the legal claims and evidence presented during the hearing.

Further, we note that the plaintiffs stated during final argument that they became aware of the Home Improvement Act in April, 1987, several weeks before the hearing. Nonetheless, the plaintiffs proceeded to trial and never mentioned the act until final argument. Even assuming, arguendo, that the trial court otherwise should have considered the plaintiffs’ claim, we find particularly appropriate to this case the principle that an appellant should not be allowed to claim as error that which his own action has induced. Valley v. Fazzina, 187 Conn. 423, 428, 446 A.2d 1068 (1982); Busko v. DeFilippo, 162 Conn. 462, 469, 294 A.2d 510 (1972); Crowder v. Zion Baptist Church, Inc., 143 Conn. 90, 97-98, 119 A.2d 736 (1956); Chapin v. Popilowski, 139 Conn. 84, 87-88, 90 A.2d 167 (1952).

There is no error.

In this opinion the other justices concurred.

       See generally the Home Improvement Act, General Statutes § 20-418 et seq. The particular section relied on by the plaintiffs, General Statutes § 20-429, provides in relevant part: “(a) No home improvement contract shall be valid unless it is in writing and unless it contains the entire agreement between the owner and the contractor.”

       The relevant part of General Statutes § 49-35a provides as follows:
      “(b) The application, order and summons shall be substantially in the following form:
      APPLICATION FOE DISCHAEGE OE EEDUCTION OF MECHANIC’S LIEN
      To the . . . Court of . . .
      The undersigned represents:
      1. That ... is the owner of the real estate described in Schedule A attached hereto.
      2. That the names and addresses of all other owners of record of such real estate are as follows:
      3. That on or about . . . .(date) . . . , (name of lienor) of . . . (address of lienor) placed a mechanic’s lien on such real estate and gave notice thereof.
      4. That there is not probable cause to sustain the validity of such lien (or: That such lien is excessive).
      5. That the applicant seeks an order for discharge (or reduction) of such lien.
      Name of Applicant By . . . His Attorney”

       In support of this claim, the plaintiffs referred to Caulkins v. Petrillo, 200 Conn. 713, 513 A.2d 43 (1986). Caulkins held that there is no exception to the writing requirement of General Statutes § 20-429 for home improvement agreements fully performed by the contractor. Id., 718. Because of our disposition of this case, we do not address the issues discussed in Caulkins.

       General Statutes § 49-35b provides: “(a) Upon the hearing held on the application or motion set forth in section 49-35a, the lienor shall first be required to establish that there is probable cause to sustain the validity of his lien. Any person entitled to notice under section 49-35a may appear, be heard and prove by clear and convincing evidence that the validity of the lien should not be sustained or the amount of the lien claimed is excessive and should be reduced.
      “(b) Upon consideration of the facts before it, the court or judge may: (1) Deny the application or motion if probable cause to sustain the validity of the lien is established; or (2) order the lien discharged if (A) probable cause to sustain its validity is not established, or (B) by clear and convincing evidence its invalidity is established; or (3) reduce the amount of the lien if the amount is found to be excessive by clear and convincing evidence; or (4) order the lien discharged or reduce the amount of the lien conditioned upon the posting of a bond, with surety, in a sum deemed sufficient by the judge to indemnify the lienor for any damage which may occur by the discharge or the reduction of amount.”