text:
    Rexford Gardner et al. v. Dorothy Balboni, Administratrix (Estate of Clara Gardner), et al. Bertha Masera et al. v. Dorothy Balboni, Administratrix (Estate of Clara Gardner), et al.
    (14162)
    Shea, Glass, Covello, Borden and F. X. Hennessy, Js.
    Argued January 18
    decision released March 26, 1991

      MichaelS. Schenker and Kevin Heneen, for the appellants (plaintiffs).

      Pamela J. Norley, with whom, on the brief, was James K. Robertson, Jr., for the appellee (defendant Damon Runyon-Walter Winchell Cancer Fund).
   Shea, J.

The appellants, Rexford Gardner, Bertha Masera, Dorothy Dowd and Wanda DiGiacomo (hereinafter plaintiffs), are the heirs at law (first cousins) of the decedent Clara Gardner. The appellee, Damon Runyon-Walter Winchell Cancer Fund (hereinafter proponent), would be the primary beneficiary of Gardner’s estate if a document purporting to be her will is admitted to probate. The document, prepared apparently without advice of counsel, contains irregularities. The plaintiffs claim there was insufficient evidence that the will’s execution met statutory requirements to outweigh the negative inference raised by the will’s irregularities. We hold, however, that because statements in an attestation clause signed by deceased witnesses are admissible to prove due execution of a will, there was sufficient evidence for the trial court to admit the will to probate.

The trial court found the following facts. Clara Gardner died on November 26,1985. The Probate Court appointed Dorothy Balboni as the administratrix of her estate. On January 17,1986, Balboni, her husband, detective Thomas Murkowicz and attorney William Leary conducted a search of Gardner’s apartment. Murkowicz found a document purporting to be Gardner’s will in a cardboard box containing insurance and pension papers. This document was offered for probate on February 4,1986, by the Damon Runyon-Walter Winchell Cancer Fund, the residuary beneficiary named in the document. After a hearing, the Probate Court admitted the will to probate on June 12, 1987. Gardner’s heirs at law, Rexford Gardner, Wanda DiGiacomo, Dorothy Dowd and Bertha Masera filed two separate appeals from probate, later consolidated and heard as companion cases. If the will is admitted to probate, the heirs at law receive almost nothing; the total value of the estate is estimated at $325,000.®

The trial court described the relevant portions of the purported will in part as follows. “This document is typewritten on a standard [Cleaveland] Legal Blank will form which consists of four pages on one sheet of paper folded at the center. . . . The first page of the document contains the dispositive clauses. The second page, i.e., the back of the first page, is blank. The third page contains the printed format for the appointment of the Executor, the execution by the Testatrix, the attestation clause and a self-proving affidavit with provision for typing of the names of the witnesses, a place for their signatures and a place for an affidavit to be taken by another person.

“In the appointment clause the blanks are properly filled in and the Testatrix has appointed her cousin, Mrs. Dorothy Dowd from the town of Windsor Locks, Connecticut, County of Hartford, Connecticut, Executrix.

“The next printed section is the execution clause, i.e., that which begins with ‘IN WITNESS WHEREOF’, in heavy type followed in lower case print by T have hereunto set my hand and seal at said (blank) on the (blank) day of (blank) A.D., One Thousand, Nine Hundred and (blank).’ Below this is a dotted line for signature, with the word SEAL in brackets, i.e., [SEAL], None of the blanks in this section have been filled in nor does it contain the signature of Clara Gardner.

“In the attestation clause which contains the usual language, ‘Signed, Sealed, Published and Declared by the said (blank) as and for her Last Will and Testament, in the presence of us, who at her request, in her presence, and in the presence of each other have hereunto subscribed our names as witnesses, on the 31st day of July A.D. 1956/ the name of the Testatrix has not been typed in. However, the blanks have been typed in with the word ‘her’ before Last Will and testament and before request and before presence and also the date, ‘31st’, ‘July’, ‘56’. Under the label ‘Witnesses’ appear three handwritten signatures in blue ink, and under ‘Addresses’, opposite each name, is a handwritten address.

“The heading of the self-proving affidavit containing the county and the date of July 31st, A.D. 1956, has been filled in. However, the spaces where the names of the witnesses would normally appear have not been filled in, but each of the pronouns, the suffix ‘trix’ and the date, 31st day of July 1956 which appear in the text of the affidavit, have been filled in with a typewriter. Under this affidavit appear three dotted lines on which, normally, the signature of the witnesses would appear. On the uppermost of these three lines appears the name, handwritten in blue ink, ‘Clara Gardner.’ The last portion of the self-proving affidavit, that which contains the notarization, is completely blank.

“To sum up, the section for the execution of the will by the Testatrix is blank. In the attestation clause, where the name of the Testatrix would normally have been typed in, it is blank. The balance of the attestation clause, however, has been filled in with the correct pronouns, dated and three signatures. The dates of the self-providing affidavit and suffix ‘trix’ and the pronouns have been filled in and the signature ‘Clara Gardner’ appears where the names of the witnesses would normally be typed in.

“The fourth page of this document which contains some printed matter identifying the document with provision for dates and the date admitted to Probate, etc., has been left blank.”

I

An appeal from probate is not so much an “appeal” as a trial de novo with the Superior Court sitting as a Probate Court and restricted by a Probate Court’s jurisdictional limitations. Kerin v. Stangle, 209 Conn. 260, 264, 550 A.2d 1069 (1988); Baskin’s Appeal from Probate, 194 Conn. 635, 641, 484 A.2d 934 (1984); Prince v. Sheffield, 158 Conn. 286, 298, 259 A.2d 621 (1969); see D’Agostino v. Amarante, 172 Conn. 529, 530, 375 A.2d 1013 (1972). Although the Superior Court may not consider events transpiring after the Probate Court hearing; Satti v. Rago, 186 Conn. 360, 369, 441 A.2d 615 (1982); it may receive evidence that could have been offered in the Probate Court, whether or not it actually was offered. See Baskin’s Appeal from Probate, supra; Stevens’ Appeal, 157 Conn. 576, 581, 255 A.2d 632 (1969).

At the trial de novo, a will’s proponent retains the burden of proving, by a preponderance of the evidence, that the will was executed in the manner required by statute. D’Agostino v. Amarante, supra; Wheat v. Wheat, 156 Conn. 575, 581-82, 244 A.2d 359 (1968). The proponent must prove anew that the will’s execution was in compliance with the statute in effect at the time it was executed. Lane’s Appeal from Probate, 57 Conn. 182, 187-88, 17 A. 926 (1889). To be valid, Gardner’s will must comply strictly with the requirements of this statute. Wheat v. Wheat, supra, 580. Because the offer for probate of a putative will is in essence a proceeding in rem the object of which is a decree establishing a will’s validity against all the world; Estate of Neubauer, 49 Cal. 2d 740, 745, 321 P.2d 741 (1958); State v. McGlynn, 20 Cal. 233, 240 (1862); Barrette v. Whitney, 36 Utah 574, 581, 106 P. 522 (1909); Will of Dardis, 135 Wis. 457, 461, 115 N.W. 332 (1908); see also Fortune v. Buck, 23 Conn. 1, 8 (1854); the proponent must at least make out a prima facia case that all statutory criteria have been satisfied even when compliance with those criteria has not been contested. Berkeley v. Berkeley, 152 Conn. 398, 401, 207 A.2d 579 (1965).

Our task, then, in reviewing the judgment below, is to determine whether there was sufficient factual evidence to support the trial court’s conclusion that the will was executed in strict compliance with the statutory requirements, and whether the trial court applied the law correctly in reaching that conclusion.

II

In 1956, § 6951 of the General Statutes, now renumbered § 45a-251, provided in pertinent part: “No will or codicil shall be valid to pass any estate unless it be in writing, subscribed by the testator and attested by three witnesses, each of them subscribing in his presence . . . .” General Statutes (1949 Rev.) § 6951. Unquestionably, the purported will was in writing. The plaintiffs challenge first, therefore, the trial court’s conclusion that the purported will had been “subscribed by” the testatrix. The plaintiffs contend that because Clara Gardner signed the will below the unsigned self-proving affidavit, instead of signing it immediately below the execution clause, she did not “subscribe” the will as required by the statute.

The requirement that the testator “subscribe” the will means that it must be “signed at the end” by the testator. Wheat v. Wheat, supra, 581. There was ample evidence at trial to support the trial court’s conclusion that the signature was indeed Clara Gardner’s, and the plaintiffs do not challenge the signature’s authenticity. They claim instead that she did not sign at the end of her will, but rather after the end of her will, because the signature appears after the self-proving affidavit and attestation clauses, technically not parts of her will. The plaintiffs cite several cases from other states in support of this proposition. Sears v. Sears, 77 Ohio St. 104, 82 N.E. 1067 (1907); Weiss Estate, 444 Pa. 126, 279 A.2d 189 (1972); In re Churchill’s Estate, 260 Pa. 94, 103 A. 533 (1918); Orrell v. Cochran, 695 S.W.2d 552 (Tex. 1958).

While the plaintiffs’ position is not without support, numerous other states have reached the opposite conclusion, that nondispositive provisions intervening between the dispositive clauses of the will and the testator’s signature do not affect the validity of the instrument although the applicable statute requires that the signature be “at the end.” See, e.g., Owens v. Douglas, 121 Ark. 448, 452, 181 S.W. 896 (1915); see also annot., 44 A.L.R.3d 745, 746 § 22; 79 Am. Jur. 2d, Wills 448 n.54, § 238, and cases cited therein. Thus, numerous courts have held specifically that a signature appearing in or after the attestation clause meets the statutory requirement that the testator subscribe or sign at the end or foot of the will. See, e.g., McCue v. Turner, 252 Ky. 849, 68 S.W.2d 415 (1934); Lucas v. Brown, 187 Ky. 502, 219 S.W. 796 (1920); Younger v. Duffie, 94 N.Y. 535 (1884); Coplin v. Anderson, 281 P.2d 186 (Okla. 1955); In re Estate of Mills, 414 Pa. 385, 200 A.2d 284 (1964); Gale v. Freeman, 153 Wis. 337, 141 N.W. 226 (1913) (signature appearing after attestation clause); see also Estate of Tonneson, 81 Cal. App. 2d 703, 185 P.2d 78 (1947); In re Alleged Will of Drake, 15 N. J. Misc. 484, 192 A. 428 (1937); Matter of Eyett, 124 Misc. 523, 209 N.Y.S. 251, (1925); Matter of Noon, 31 Misc. 420, 65 N.Y.S. 568 (1900) (signature within attestation clause); see generally 2 W. Page, Wills (Bowe-Parker Rev. 1966) § 19.58; annot., 44 A.L.R.3d 735 § 15 [b].

Originally, “[a]t common law, if a person wrote his name in the body of a will or contract with intent to execute it in that manner, the signature so written was as valid as though subscribed at the end of the instrument.” Matter of Will of Booth, 127 N.Y. 109, 114, 27 N.E. 826 (1891). The purpose of the requirement that the testator sign “at the end” “is not only that it may thereby appear on the face of the instrument that the testamentary purpose which is expressed therein is a completed act, but also to prevent any opportunity for fraudulent or other interpolations between the written matter and the signature.” Estate of Seaman, 146 Cal. 455, 462-63, 80 P. 700 (1905) (holding invalid a will subscribed by the testator on a loose page following the page containing the attestation clause).

In this case, unlike Estate of Seaman, supra, the attestation clause, unexecuted self-proving affidavit, and signature that follows all appear at the end of the same single, folded sheet of paper entitled “Last Will and Testament.” Thus, while it is certainly true that the self-proving affidavit and the attestation clause are not parts of the testatrix’s “will,” their intervening presence does not suggest an incomplete expression of the testamentary purpose, nor the presence of counterfeit dispositions. More importantly, our statute does not require the testatrix to sign at the end of the will, but to subscribe it, “[laterally to write underneath.” Black’s Law Dictionary (5th Ed. 1979) p. 1279. Rejecting the testatrix’s signature as a valid subscription of the will would elevate form over substance in a manner not contemplated by our rule of strict compliance with the wills act.

III

The plaintiffs’ next two claims are addressed to the sufficiency of the evidence. The plaintiffs claim that the proponent was required to prove, by a preponderance of the evidence: (1) that the testatrix had already signed the will before the witnesses attested to it; and (2) that three witnesses attested to the execution of the will. They argue that there was simply no evidence that these requirements were fulfilled, and that because the proponent held the burden of proof, the will cannot be admitted to probate without such evidence.

In most cases, a properly executed “self-proving” affidavit provides a Probate Court with the attesting witnesses’ sworn testimony that all statutory requirements have been met. General Statutes § 45-166; see, e.g., Vivian’s Appeal from Probate, 74 Conn. 257, 50 A. 797 (1901). The blank form used by the testatrix included the text of such an affidavit. Her witnesses did not, however, execute the affidavit. In the absence of a self-proving affidavit, a will’s proponent usually produces extrinsic evidence of the will’s due execution, such as the live or deposition testimony of subscribing witnesses or other persons who witnessed the will’s execution without themselves attesting to it. Here, all of the attesting witnesses were dead, and no testimony of bystander witnesses was offered.

The proponent repeatedly attempted to enter into evidence the statements in the attestation clause as evidence of the will’s proper execution. The attestation clause stated: “Signed, sealed, published and declared by the said [Clara Gardner] as and for her Last Will and Testament, in the presence of us, who at her request, in her presence, and in the presence of each other have hereunto subscribed our names as witnesses, on the 31st day of July A.D. 1956.” Thus, if admissible, the attestation clause would provide evidence of each element of due execution challenged by the plaintiffs.

The plaintiffs objected that these statements were inadmissible hearsay. In response, the proponent argued that their presence in the will fell within the ancient documents exception to the hearsay rule or within the exception provided in General Statutes § 52-172, the “dead man’s statute.” The trial court rejected both arguments by way of written notices mailed to counsel after the first day of trial had concluded. The court did, however, admit into evidence a copy of the purported will, not for the truth of the matters asserted therein, but simply as a copy of the document in dispute.

On the second day of trial, which took place two months after the first day, the proponent produced no additional evidence, but argued that the attestation clause was admissible under a common law exception to the hearsay rule. The trial court did not then rule on this argument, but the memorandum of decision shows that it considered the statements made in the attestation clause as admitted into evidence on that basis.

It is well established at common law that when all of the attesting witnesses to a will are dead, proof of the genuineness of all their signatures and of the testator’s signature is evidence of the truth of the statements in the attestation clause. See 3 J. Alexander, Commentaries on Wills § 1302, pp. 2006-2007; 2 J. Alexander, supra, § 587; 3 W. Page, Wills (Bowe-Parker Rev.) §§ 29.21, 29.23; 11. Redfield, Wills (3d Ed.) c. vi, § 19, p. 216; 1 H. Underhill, Wills § 210; annot., 76 A.L.R. 617 (1932). This rule also applies where the witnesses are not dead, but simply “unavailable,” that is, absent from the court’s jurisdiction; see, e.g., Estate of Connelly, 138 Mont. 153, 355 P.2d 145 (1960); see also 3 J. Alexander, supra, § 1302, pp. 2006-2007; 80 Am. Jur. 2d, Wills § 1015, and cases cited therein; or unable to remember the facts to which they attested. See, e.g., Walpole v. Lewis, 254 Ark. 89, 92, 492 S.W.2d 410 (1973); In re Estate of Carroll, 192 Ill. App. 3d 202, 548 N.E.2d 650 (1989); Barnes v. Barnes, 66 Me. 286, 297 (1876); Eliot v. Eliot, 92 Mass. 357 (1865); Estate of Connelly, supra; Hobbs v. Mahoney, 478 P.2d 956 (Okla. 1976); Seydler v. Baumgarten, 294 S.W.2d 467 (Tex. Civ. App. 1956). Many jurisdictions go further, and find that proof of the signatures of witnesses and testator is evidence of all the elements of due execution even where there is no attestation clause at all. See, e.g., Glenn v. Mann, 234 Ga. 194, 214 S.E.2d 911 (1975); Succession of Augustus, 441 So. 2d 730 (La. 1983) (applying law of District of Columbia); Eliot v. Eliot, supra; Christopher Fry’s Will, 2 R.I. 88 (1852). In some states, an attestation clause is more than simply evidence; it creates a strong legal presumption of due execution. See, e.g., Lamb v. Bryan, 236 Ga. 237, 238, 223 S.E.2d 122 (1976); O’Neal v. Jennings, 53 Md. App. 604, 608, 455 A.2d 66 (1983); Matter of Estate of Yenei, 132 App. Div. 2d 870, 518 N.Y.S.2d 219 (1987). In such states, even when attesting witnesses testifying at trial contradict the statements contained in the attestation clause, courts are skeptical of their change of heart and may admit a will to probate on the strength of the contradicted attestation clause alone. See, e.g., Massey v. Reynolds, 213 Ala. 178, 183, 104 So. 494 (1925); cf. London v. Harris, 507 So. 2d 468 (Ala. 1987).

The court admitted the death certificate of each attesting witness into evidence and heard testimony by Rose Noacco, a friend of the testatrix, who recognized the signatures of the testatrix and two of the attesting witnesses. Noacco did not recognize the signature of the third attesting witness, Christine Lynch, but knew her as “a dear friend of Clara’s,” and knew that she had lived on Townley Street in Hartford, the address written next to the signature, at the time the will was dated. The proponent offered no evidence that Christine Lynch’s signature was genuine.

Thus, the usual formulation of the common law exception does not match the circumstances of this case. There is no proof that the signature of the third witness, Christine Lynch, is genuine. She cannot speak beyond the grave to testify that she witnessed the testatrix’s will. We must decide whether the postmortem utterances of the other two witnesses, that the will was “[s]igned, sealed, published and declared by the said [Clara Gardner] ... in the presence of us, who at her request, in her presence, and in the presence of each other have hereunto subscribed our names as witnesses(emphasis added), can substitute for proof of the authenticity of Lynch’s signature and allow the statements in the attestation clause to prove due execution of the will. We must, therefore, examine the basis for the standard common law exception and determine whether it is applicable to the facts of this case.

Professor Wigmore explains the underlying justification for the exception, at the same time implying that the authentic signature of one witness may be enough to prove due execution. “It has long been unquestioned that the attestation of an attesting or subscribing witness to a document may be used, when the attester is unavailable in person, as evidence of the document’s execution .... What has not been always clearly understood is that such a use of an attestation is in truth an exception to the hearsay rule, i.e., is the testimonial use of an extrajudicial assertion as evidence of the truth of the fact asserted . . . .” (Emphasis in original.) 5 J. Wigmore, Evidence (4th Ed. Chadboum) § 1505. The exception is permitted because of necessity; 5 J. Wig-more, supra, § 1506; and because there exist circumstantial guarantees of trustworthiness: “(1) The occasion is a formal one, and the statement requires a writing; and there is commonly a radical disinclination to take part in a false transaction of such a sort. (2) The concoction of a false document will either fix an innocent party with a false obligation or will divest legitimate heirs of their rights, and there is a natural repugnance to giving assistance in such a wrong. (3) The making of a false attestation, whether or not it is in criminal law a forgery or a perjury, is popularly supposed to be such, and the attester would probably be at least an accomplice in a forgery; so that the subjective sanction deterring from a crime would probably operate to prevent a false attestation. (4) The attester knows that he is liable at any time to be called upon in court to substantiate his attestation; and not only is his falsity likely there to be exposed by the opponent’s witnesses, but he will there be obliged either to commit perjury by swearing to the fact of execution or to undergo the disagreeable ordeal of recanting and confessing his falseness.” 5 J. Wigmore, supra, § 1508.

“Assuming that the signature is appended to a clause of attestation expressly stating the facts of execution, it is clear that the signed attestation is a testimonial assertion of all the facts thus required to be stated.” (Emphasis in original.) 5 J. Wigmore, supra, § 1511. Logically, then, if any single living attesting witness may prove due execution, including the attestation of the others; Shulman v. Shulman, 150 Conn. 651, 656, 193 A.2d 525 (1963); then any single deceased witness may, by signing an attestation clause, prove due execution, including the attestation of the other deceased witnesses.

A few cases take the logical step indicated by Wig-more. See, e.g., In re Peverett, [1902] L.R.-P. 205 (1902) (Great Britain). The New Jersey Superior Court, which, like Connecticut; Hatheway v. Smith, 79 Conn. 506, 65 A. 1058 (1907); requires strict compliance with its statute of wills; In re Hale’s Will, 21 N.J. 284, 295, 121 A.2d 511 (1956); has considered a situation quite similar to the one now before us. In re Estate of Saenger, 133 N.J. Super. 151, 335 A.2d 601 (1975). In that case, one of the two required witnesses was deceased, and the other could not be located. The deceased witness’ signature was identified as authentic, but there was no evidence of the authenticity of the other’s signature. The court observed that the usual formulation of the common law exception, as applied in prior New Jersey case law, did not, as here, fit the facts of the case. Id., 155.

The New Jersey court then noted, first: “Where there is an attestation clause which recites performance of all the requisite acts, the live testimony of one witness that he saw [the] testator execute the will, and that thereafter he and another signed as witnesses, is sufficient.” Id. This is also a correct statement of Connecticut law. Shulman v. Shulman, supra; Field’s Appeal from Probate, 36 Conn. 277, 279 (1869). Applying Wigmore’s analysis, the court went on to conclude: “Since it is the law, as indicated by Wigmore, § 1511, supra, that ‘the signed attestation is a testimonial assertive of all of the facts thus required to be stated,’ identification of one attester’s signature, where both attesters are not available, is proof that [the] testator did what he was required to do to make a will, including proof that two witnesses were present when he affixed his signature to the document. To hold to [the] contrary would be to diminish the traditional force of the attestation clause. In the words of Judge Conford in In re Petkos, [54 N.J. Super. 118, 124, 148 A.2d320, cert. denied, 30 N.J. 150, 152 A.2d 170 (1959)], it would ‘come close to substituting a fetish for a rule of reason.’ If the attestation clause prevails against [a] defect in memory, as in Mundy v. Mundy, [15 N.J. Eq. 290 (1858),] or contradictory testimony of one of the attesters, as in James v. Wendehack, [1 N.J. Super. 203, 63 A.2d 710, cert. denied, 1 N.J. 603 (1949),] and In re Seymour’s Will, 114 A. 799 ([N.J. Prerog.] 1921) (not reported in official reports), it is difficult to conceive why it should not have its customary effect where there is no contradiction at all.” In re Estate of Saenger, supra, 160.

This court has itself recognized the logic of permitting one attester’s signature to prove all the elements of execution, including the attestation of the other witnesses. In Jarboe v. Home Bank & Trust Co., 91 Conn. 265, 99 A. 563 (1917), we upheld the probate of a will based on evidence similar to that herein presented, but on the basis of the “ancient documents” exception to the hearsay rule. We commented in passing, however: “Thus, the recitals in the attestation clause appearing over the signature of the witness might in such cases, upon proof of the authenticity of the signatures of one of the witnesses, be accepted as that witness’s statement, admissible, under an exception to the hearsay rule, of the facts recited in the attestation clause and therefore as proof of the fact of due execution.” Id., 270-71; see G. Wilhelm, Connecticut Estates Practice (Rev. Ed. 1974) § 45.

We are persuaded that the common law exception to the hearsay rule exists in Connecticut and that the attestation of a single deceased witness whose signature has been authenticated is admissible to prove that the statutory requirements recited in the attestation clause have been met, including the attestations of other witnesses whose signatures have not been authenticated. To hold otherwise would in effect punish the testatrix for outliving her witnesses.

The attestation clause recited that the testatrix subscribed the will in the witnesses’ presence and that each attested to the will in the presence of the other. The trial court was entitled to rely upon these recitations as evidence proving compliance with the statutory requirements.

The judgment is affirmed.

In this opinion the other justices concurred.

(See Appendix on following page.)

Appendix

       Dorothy Balboni is the daughter of Bertha Masera, a close friend and cousin of the testatrix. Masera died before trial.

       The document named the Walter Winchell Cancer Fund, which subsequently changed its name to the Damon Runyon-Walter Winchell Cancer Fund.

       Dorothy Dowd died before trial and her executor, Donald Dowd, was substituted for her as plaintiff.

       Two of the plaintiffs, Rexford Gardner and Wanda DiGiacomo, first cousins of the testatrix, are not named in the will, although the testatrix knew them. The record does not indicate whether either held any derivative interest in any legacy bestowed by the will. Such an interest is unlikely. See General Statutes § 45a-441 (entitled “Death of devisee or legatee”). The other two plaintiffs, Bertha Masera and Dorothy Dowd, also first cousins of the testatrix, are mentioned in the will. The testatrix left her personal belongings to Dorothy Dowd. She also named Dowd her executrix and set her fee at $2000. Dowd declined to serve as executrix and, in fact, died before trial. The testatrix noted in the will that she had made Bertha Masera and “Mrs. Charles Dowd” the beneficiaries of separate life insurance policies, but she left no legacy to Masera.

       Rose Noacco, a friend of the testatrix, testified that the deceased, a retired stenographer, was very “economical.” Unfortunately, her strong self-reliance and frugality apparently led her to prepare her own will without the aid of a lawyer. “[T]he instant case is an excellent example of the trouble, litigation and expense flowing from attempts of a layman to execute, or supervise the execution of, a will without competent, informed, legal assistance.” Wheat v. Wheat, 156 Conn. 575, 583 n.5, 244 A.2d 359 (1968).

       The disputed portions of the will are reproduced as an appendix to this opinion.

         In the present ease, the statute in effect at the time of execution required three attesting witnesses, while the statute in effect at the time of trial required only two attesting witnesses. Compare General Statutes (1949 Rev.) § 45-161 with General Statutes (Rev. to 1989) § 45-161 (now renumbered § 45a-251).

       The requirement that the testator sign the will before the attesters do so is a judicial gloss upon the word “subscribed” in General Statutes § 45a-251. See Wheat v. Wheat, 156 Conn. 575, 585, 244 A.2d 359 (1968). It derives more logically, however, from the third statutory requirement, namely, that the will be “attested by three witnesses.” General Statutes (1949 Rev.) § 6951. “Attestation is required in order that the attesting witnesses can testify to those things essential under our statutes for admission of the will to probate.” Wheat v. Wheat, supra, 583; see also Canada’s Appeal from Probate, 47 Conn. 450, 461 (1880). One cannot witness an act not yet performed. Thus, although “it is the will that must be attested, not the signature”; Wheat v. Wheat, supra, 583; and although witnesses need see neither the testator’s signature nor his act in signing it; Pope v. Rogers, 93 Conn. 53, 55, 104 A. 241 (1918); in practical effect, the attestation requirement necessitates that the testator sign first. When all the signing takes place as a single event so that for all practical purposes the signing is simultaneous, the law recognizes the signatures as appropriately ordered, even though the witnesses in fact have signed first. O’Brien v. Galagher, 25 Conn. 229 (1856). No extraneous evidence was introduced to demonstrate that the signing took place as a single event, which would excuse the proponent from proving that the signatures were affixed in the appropriate chronological order. In addition, the plaintiffs suggest that the placement of the testatrix’s signature below the witnesses’ is uncontroverted prima facie evidence that they signed before she did. We need not consider this issue, however, because the attestation clause, which we hold to be admissible, provides evidence from which the trial court could reasonably have concluded either that the testatrix signed before the attesting witnesses, or that the signing was accomplished as a single event.

       The attestation clause fails to include the testatrix’s name. This omission is insignificant. The witnesses’ signatures appear on the same sheet of paper (although on a different page) that states: “I, Clara Gardner . . . do hereby make, publish and declare this to be my last Will and Testament”; the attestation clause refers to “her” last will and testament; and the signature “Clara Gardner” is on the same side of the paper as the witnesses’ signatures. Taken together, these facts are sufficient evidence from which the trial court could infer that the word “her” in the attestation clause referred to the testator.

       Rose Noacco is also the beneficiary of $500 under the terms of the will.

       In that case, applying the British policy then favoring testamentary dispositions, the court admitted a will to probate where there was no attestation clause, the two attesting witnesses were deceased, and one of the witnesses’ signatures was not proven genuine.

       The New Jersey Superior Court noted that Rule 63 (32) of the New Jersey Rules of Evidence, enacted after the will’s execution but prior to trial, provides a “catch-all” exception for statements made by deceased witnesses where there are circumstantial guarantees of trustworthiness. In re Estate of Saenger, 133 N.J. Super. 151, 160, 335 A.2d 601 (1975). It further noted that one witness was an attorney and that the testator’s signature had been independently proved to be genuine. Id., 161. It did not, however, base its decision upon these facts.


source: Caselaw Access Project

author: Callahan, J.

license: Public Domain

text:
    State of Connecticut v. Angel L. Rosado
    (13692)
    Peters, C. J., Callahan, Glass, Covello and Hull, Js.
    Argued January 17
    decision released April 2, 1991

      John S. Pinney, with whom was Anthony Modugno, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, and Paul Murray, assistant state’s attorney, for the appellee (state).
   Callahan, J.

The defendant was charged in a substitute information with possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (a). He was also charged under Part B of the substitute information as a subsequent offender, having previously been convicted of violating the same statute. A jury found the defendant guilty as charged in the substitute information and he then pleaded guilty to being a subsequent offender. The trial court sentenced the defendant to a term of imprisonment of thirty years, the execution of which was suspended after twenty years. He was also placed on probation for five years.

The charges of which the defendant was convicted arose out of a raid conducted, pursuant to a search and seizure warrant, by the Hartford police on November 5, 1987, on an apartment leased by Lydia Milton, the defendant’s sister, located at 172 Lawrence Street in Hartford. In conducting the raid the officers involved in the execution of the search warrant entered Milton’s apartment and ran down a hallway to the living room. Upon entering the living room, they observed three individuals sitting on a couch, one of whom they identified as the defendant. The officers then observed the defendant get up from the couch, go toward a window, and drop a brown paper bag at his feet. They retrieved the bag and found that it contained approximately $1600 in cash, thirty-seven blue glassine packets and twenty-four white glassine packets. The contents of the packets were later tested and determined to be cocaine, morphine and heroin with a street value of approximately $2000. Other facts will be recounted as they become necessary to the court’s opinion.

I

The defendant first claims that the trial court should have admitted into evidence at his trial, as an exception to the hearsay rule, a statement made by Milton, exculpatory of him and against her penal interest. We disagree.

The factual circumstances surrounding the giving of Milton’s statement were revealed in a hearing conducted outside the presence of the jury to determine its admissibility. The hearing was precipitated by the state’s motion in limine requesting the trial court to exclude from evidence certain statements, exculpatory of the defendant, taken from Milton and two others who were occupants of the apartment at the time of the police raid, namely, Freddy Santana and Emilio Cuellar, both of whom were also arrested. There was testimony at the hearing from William Gerace, an attorney who, at the time, represented the defendant on the narcotics charge that is the subject of this appeal, from Sharon Mason, Gerace’s secretary, and from Luz Rosado, the defendant’s wife.

Gerace testified that late one afternoon as he was leaving his office four or five Hispanic individuals arrived without an appointment. Because Gerace was on his way out, he directed the group to speak to a secretary. Upon his return to the office he found typed, signed statements taken by his secretary, Mason, in affidavit form, from Milton, Santana and Cuellar. Ger-ace stated that thereafter he had no contact with any of the affiants.

Mason testified that she took statements from Milton, Santana and Cuellar with the help of lisie Negron, a Spanish speaking secretary. Mason’s recollection, however, differed from that of Gerace. She testified that she believed that Milton came into the office with only Luz Rosado and that she took statements from Santana and Cuellar on another day. Mason, who was a notary public, testified that after taking the statements, she administered an oath, explained the implications of the oath and made the affiants aware of the penalty for perjury.

Luz Rosado testified that Santana had telephoned her and asked if she would give Milton a ride to “the lawyer’s office.” As a result, she picked up Milton and drove her to see Gerace. She stated that she did not know the purpose of Milton’s visit and that it was not discussed. Luz Rosado also testified that she had made no promises to Milton, and that she said nothing to Milton during the time Milton’s statement was being taken.

Milton’s affidavit states that the defendant was at her apartment only to pick up Santana and that while he was waiting for Santana the police broke in and arrested him. She went on to say, “That I know that he has nothing to do with it, and nothing was his. That the drugs seized were mine. At the time, I was selling same to support my bad habit.” At the close of the hearing, after argument, the trial court ruled that Milton’s statement was not trustworthy and excluded it from evidence at the defendant’s trial.

A trustworthy third party statement exculpatory of the accused and against the penal interest of the declarant is admissible at the trial of the accused if the declarant is unavailable. State v. Boyd, 214 Conn. 132, 138, 570 A.2d 1125 (1990); State v. Mayette, 204 Conn. 571, 576, 529 A.2d 673 (1987); State v. Hernandez, 204 Conn. 377, 389-90, 528 A.2d 794 (1987); State v. Bryant, 202 Conn. 676, 692, 523 A.2d 451 (1987); State v. Gold, 180 Conn. 619, 630, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66 L. Ed. 2d 148 (1980); State v. DeFreitas, 179 Conn. 431, 450-51, 426 A.2d 799 (1980); see also Fed. R. Evid. 804 (b) (3). The determination of whether such a statement is sufficiently trustworthy to be admitted into evidence at trial lies within the sound discretion of the trial court. United States v. Hoyos, 573 F.2d 1111, 1115 (9th Cir. 1978); State v. Mayette, supra, 577; State v. Hernandez, supra, 390; State v. Bryant, supra, 694; State v. DeFreitas, supra, 452.

Our present rule allowing the admission of trustworthy third party statements against penal interest has its genesis in Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973). Prior to Chambers, such third party statements were per se inadmissible as hearsay. State v. Stallings, 154 Conn. 272, 287, 224 A.2d 718 (1966); State v. Mosca, 90 Conn. 381, 387, 97 A. 340 (1916); State v. Beaudet, 53 Conn. 536, 551, 4 A. 237 (1886). In State v. DeFreitas, supra, 449, we interpreted Chambers as forbidding the mechanistic application of the hearsay rule to exclude all third party statements against penal interest exculpatory of an accused. We concluded, however, that Chambers did not mandate the admission of every such statement but required the admission only of those statements that, after a careful examination, were determined in the sound discretion of the trial court to be trustworthy. State v. DeFreitas, supra, 451-52.

Four considerations have been deemed relevant when examining the trustworthiness of declarations against penal interest: “ ‘(1) the time of the declaration and the party to whom the declaration was made; (2) the existence of corroborating evidence in the case; (3) the extent to which the declaration is really against the declarant’s penal interest; [and] (4) the availability of the declarant as a witness.’ United States v. Guillette, 547 F.2d 743, 754 (2d Cir. [1976]), cert. denied, 434 U.S. 839, 98 S. Ct. 132, 54 L. Ed. 2d 102 [1977]. See United States v. Oropeza, 564 F.2d 316, 325 (9th Cir. [1977]) [cert. denied, 434 U.S. 1080, 98 S. Ct. 1276, 55 L. Ed. 2d 788 (1978)]; Henson v. United States, 399 A.2d 16 [19] (D.C. App.) [cert. denied, 444 U.S. 848, 100 S. Ct. 96, 62 L. Ed. 2d 62 (1979)]; People v. Foster, 66 Ill. App. 3d 292, 294-95, 383 N.E.2d 788 [1978].” State v. DeFreitas, supra, 451; State v. Bryant, supra, 693; State v. Frye, 182 Conn. 476, 479, 438 A.2d 735 (1980); State v. Gold, supra, 633.

In assessing the four considerations noted, the trial court found that Milton’s statement fulfilled at least two of the requirements. The court determined that Milton, the declarant, was unavailable because of recent surgery and also because of the existence of a testimonial privilege; see State v. Mayette, supra, 577; State v. DeFreitas, supra, 441; and that her statement was against her penal interest. The court, however, questioned the credibility of Luz Rosado, the defendant’s wife, and the circumstances under which Milton’s statement was made. The court’s skepticism was apparently triggered by the fact that Milton’s statement was made, not in an unguarded moment to a confidant but rather to the secretary of the attorney representing her brother, the defendant, in the attorney’s office, to which office she had been delivered by the defendant’s wife, while Milton herself had serious, apparently well founded, criminal charges pending against her arising out of the same incident. See United States v. Goins, 593 F.2d 88, 91 (8th Cir.), cert. denied, 444 U.S. 827, 100 S. Ct. 52, 62 L. Ed. 2d 35 (1979); State v. Mayette, supra, 578; State v. Hernandez, supra, 392-93. It is small wonder that in its ruminations the trial court considered the possibility that Milton’s statement, the statements of Santana and Cuellar and the circumstances under which they were made, were indicative of an attempt by Luz Rosado, Milton, Santana and Cuellar to exonerate the accused and, as the court said, “let Milton take the heat.” See State v. Higginbotham, 298 Minn. 1, 4-5, 212 N.W.2d 881 (1973); Brown v. State, 99 Miss. 719, 726-29, 55 So. 961 (1911); People v. Shortridge, 65 N.Y.2d 309, 312-15, 480 N.E.2d 1080, 491 N.Y.S.2d 298 (1985) (statement designed to exculpate loved one may be fatal to reliability). The court concluded that, in light of the totality of the circumstances under which Milton’s statement was made, it could not find the statement trustworthy. See State v. Mayette, supra, 579. We cannot say that in so concluding the trial court abused its discretion.

The trial court also concluded that there was insufficient evidence corroborating Milton’s statement to render it trustworthy. The defendant claims that the court was incorrect in so finding. He argues that the following facts brought out at the hearing were sufficient to corroborate Milton’s statement. First, the apartment in which the narcotics were found was leased to Milton and the state stipulated that on two prior occasions search warrants had been executed at Milton’s apartment, one on August 26,1988, and the other on October 31,1988, and the defendant was not present in the apartment on either occasion. Second, Santana and Cuellar signed affidavits attesting that the narcotics found in the apartment belonged to Milton. Last, when the police entered the living room, Milton was in the room and narcotics were found on her person.

These facts, however, do not necessarily corroborate the defendant’s contention that the narcotics found by the police in the brown paper bag belonged to Milton. Neither the fact that there had been previous searches of Milton’s apartment at which times the defendant was not present nor the fact that, when arrested, Milton had narcotics on her person does much to bolster her story claiming ownership of all the narcotics seized, including those in the brown paper bag dropped by the defendant. Moreover, the statements of both Santana and Cuellar were simply bald assertions ascribing the ownership of all the narcotics in the apartment to Milton. There was no indication in either statement as to the basis of their knowledge for that assertion. See United States v. Hoyos, supra, 1115; Ferguson v. Smazer, 151 Conn. 226, 233-34, 196 A.2d 432 (1963). Further, neither Santana nor Cuellar was called by the defendant, either at the hearing or at his trial. Consequently, there never was an explanation as to why they attributed the ownership of the narcotics to Milton. See State v. Mayette, supra, 579-80 (few corroborating factors to indicate the trustworthiness of the statements). It was reasonable that the trial court gave their statements little credence.

The corroboration requirement for the admission of a third party statement against penal interest is significant and goes beyond minimal corroboration. Third party statements exculpating an accused are suspect and the requirement of corroboration, to effectuate its purpose of circumventing fabrication, must be construed as requiring corroborating circumstances that clearly indicate the trustworthiness of the proffered statement. United States v. Zirpolo, 704 F.2d 23, 26 (1st Cir.), cert. denied, 464 U.S. 822, 104 S. Ct. 87, 78 L. Ed. 2d 96 (1983); United States v. McDonald, 688 F.2d 224, 233 (4th Cir. 1982), cert. denied, 459 U.S. 1103, 103 S. Ct. 726, 74 L. Ed. 2d 951 (1983); United States v. Hoyos, supra, 1115; United States v. Barrett, 539 F.2d 244, 253 (1st Cir. 1976); State v. Mayette, supra, 577; State v. Bryant, supra, 700; State v. Gold, supra, 630-31; Laumer v. United States, 409 A.2d 190, 200 (D.C. App. 1979); State v. Barden, 432 A.2d 404, 409 (Me.), cert. denied, 454 U.S. 1088, 102 S. Ct. 648, 70 L. Ed. 2d 624 (1981); State v. Smith, 415 A.2d 553, 560 (Me. 1980); State v. Higginbotham, supra, 4-5. In this instance we would be hard pressed to say that the trial court abused the discretion vested in it to determine questions of this nature when it concluded that there was insufficient corroboration of Milton’s statement to render it trustworthy and, therefore, admissible at the defendant’s trial.

The defendant also claims that the trial court’s exclusion of Milton’s statement violated his constitutional rights to present a defense and his right to due process of law. We disagree. The defendant’s rights to present a defense and to due process do not give him the prerogative to present any testimony or evidence he chooses. In the exercise of his constitutional rights, “ ‘the accused, as required of the State, must comply with the established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.’ Chambers v. Mississippi, [supra, 302]; State v. Kemp, 199 Conn. 473, 479, 507 A.2d 1387 (1986).” State v. Douglas, 203 Conn. 445, 455, 525 A.2d 101 (1987); State v. Boucino, 199 Conn. 207, 213, 506 A.2d 125 (1986); see United States v. Nobles, 422 U.S. 225, 241, 95 S. Ct. 2160, 45 L. Ed. 2d 141 (1975). We are unpersuaded by this first claim of the defendant.

II

The defendant next argues that the trial court should not have allowed into evidence at his trial, as an admission, a portion of a written complaint made by the defendant to the internal affairs division (IAD) of the Hartford police department. The complaint was made on an IAD official complaint form that was sent to the defendant after he had written several letters to the police department complaining of the conduct of the arresting officers. The portion admitted stated that: “Then Detective Leo Klaus took my wallet from my pocket and withdrew 1400 dollars that I have inside my wallet most of the bills were 100 dollar bills. Detective Leo Klaus that [sic] put my money in a brown paper bag that they found with some money.”

The defendant first argues that the above excerpt from the IAD complaint should not have been admitted because it was not inconsistent with the position he took at trial and was therefore not an admission. We disagree. “[T]he vast weight of authority, judicial, legislative, and scholarly, supports the admissibility without restriction of any statement of a party offered against that party at trial.” State v. Stepney, 191 Conn. 233, 251, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984). There is no requirement that the statement of a party necessarily be against the party’s interest either when made or offered in order to be admissible. C. McCormick, Evidence (3d Ed.) § 262; C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 11.5.1. There is no merit to this claim.

The defendant next contends that the statement he made on the IAD form was involuntary and that its admission violated his fifth amendment privilege against self-incrimination and his sixth amendment right to the assistance of counsel as well as his rights under article first, § 8 of the Connecticut constitution. A determination of the validity of the defendant’s claim necessitates that we describe briefly the factual circumstances under which the defendant’s IAD complaint was made.

While he was incarcerated in the Hartford correctional center because of his failure to post bail on the charges that are the subject of this appeal, the defendant wrote several letters to the Hartford police department complaining of the conduct of the arresting officers. In a letter written in early December, 1987, the defendant set forth his allegations in some detail and asked that someone from IAD be sent to the correctional center to speak with him. In response, IAD sent the defendant a form on which to make an official complaint. On December 21, 1987, the defendant detailed his complaint on the form sent to him by IAD and signed and swore to it before witnesses and a notary. Thereafter, on December 30,1987, and February 11,1988, Sergeant Walter Clarke from IAD went to interview the defendant at the correctional center. Clarke obtained the defendant’s permission to speak with him, confirmed that the complaint was his and interviewed him concerning it.

At trial, the defendant argued that no portion of the written complaint should have been allowed into evidence because it was obtained without Miranda warnings and without the presence of counsel. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The trial court, in response to the defendant’s motion to suppress, redacted a substantial portion of the defendant’s complaint but allowed into evidence that portion of the complaint noted above.

In order to be entitled under Miranda to the suppression of the segment of his complaint in issue, the defendant’s statement would have to have been elicited as a result of custodial interrogation. Rhode Island v. Innis, 446 U.S. 291, 298, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980); State v. Vitale, 197 Conn. 396, 409, 497 A.2d 956 (1985); State v. Stankowski, 184 Conn. 121, 136-38, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981). Further, the defendant has the initial burden of showing that he was subjected to custodial interrogation. United States v. Charles, 738 F.2d 686, 695 n.11 (5th Cir. 1984); United States v. De La Fuente, 548 F.2d 528, 533 (5th Cir.), cert. denied sub nom. Stewart v. United States, 431 U.S. 932, 97 S. Ct. 2640, 53 L. Ed. 2d 249 (1977); State v. Copeland, 205 Conn. 201, 207, 530 A.2d 603 (1987); State v. Doehrer, 200 Conn. 642, 646-47, 513 A.2d 58 (1986); State v. Vitale, supra, 409. Custodial interrogation means questioning initiated by law enforcement officers after a person has been taken into custody or deprived of his freedom of action in any significant way. Miranda v. Arizona, supra, 444; State v. Vitale, supra, 411. Accordingly, “[b]efore one suspected of the commission of a crime is entitled to the warnings constitutionally required by Miranda, two conditions are required: the suspect must be in the custody of law enforcement officials; Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 50 L. Ed. 2d 714 (1977); Beckwith v. United States, 425 U.S. 341, 344-48, 96 S. Ct. 1612, 48 L. Ed. 2d 1 (1976); and the suspect must be subjected to interrogation. State v. Stankowski, supra, 136.” State v. Vitale, supra, 411; State v. Palmer, 206 Conn. 40, 62, 536 A.2d 936 (1988); State v. Doehrer, supra, 646-47. The state does not dispute that the defendant was in custody at the time he authored the IAD complaint. The state does argue, however, that the defendant was not subjected to interrogation. We agree.

The term “interrogation” under Miranda is not limited to questioning explicitly designed to elicit an incriminating response but extends to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from a suspect. The police, however, cannot be held accountable for the unforeseeable results of their words or actions. Rhode Island v. Innis, supra, 301-302; State v. Palmer, supra; State v. Vitale, supra, 411-12; State v. Stankowski, supra, 136-37. Moreover, “ ‘ “[interrogation” as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself.' Rhode Island v. Innis, [supra, 300].” State v. Doehrer, supra, 647; State v. Palmer, supra.

In this instance, the record indicates that it was the defendant, not the Hartford police, who initiated the IAD complaint. See Miranda v. Arizona, supra, 478 (volunteered statements are not barred under the fifth amendment). It also appears that the defendant’s statement was formulated of his own volition, without members of the Hartford police department present. Additionally, there is nothing to indicate that by sending the IAD complaint form, Clarke, who sent the form, knew, or should have known, that such action was likely to elicit an incriminating response from the defendant. The evidence is to the contrary. Clarke testified that the only purpose for which he sent the form was so that he could obtain information to investigate the defendant’s complaint of police misconduct. There is no reason to believe that he had any knowledge or expectation that the defendant, in furnishing information concerning alleged police misconduct, would write anything to incriminate himself. We conclude, therefore, that although the defendant was in custody his complaint was not made in response to “interrogation” as contemplated by Miranda.

Further, “[bjecause the right to counsel applies only when the government deliberately elicits incriminating information, the defendant’s sixth amendment right to counsel was not violated. United States v. Henry, 447 U.S. 264, 270, 100 S. Ct. 2183, 65 L. Ed. 2d 115 (1980); Massiah v. United States, 377 U.S. 201, 206, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964).” State v. Vitale, supra, 412.

Finally, the defendant argues that the circumstances under which he filled out the IAD complaint form rendered any statement involuntary and therefore inadmissible. We disagree. It is axiomatic that the use of an involuntary statement in a criminal trial is a violation of due process. Mincey v. Arizona, 437 U.S. 385, 398, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978); Miranda v. Arizona, supra, 461-63; State v. Madera, 210 Conn. 22, 39, 554 A.2d 263 (1989); State v. DeAngelis, 200 Conn. 224, 232, 511 A.2d 310 (1986). The measure of voluntariness is whether a review of all the circumstances surrounding the elicitation of the statement reveals that the conduct of the law enforcement officials involved was such as to overbear the will of the accused to resist and bring about a statement not freely determined. Rogers v. Richmond, 365 U.S. 534, 544, 81 S. Ct. 735, 5 L. Ed. 2d 760 (1961); State v. Madera, supra, 39; State v. Staples, 175 Conn. 398, 408, 399 A.2d 1269 (1978). In other words, the ultimate test is whether the statement is the product of the free and unconstrained choice of its maker. If it is, it may be used against him; if it is not, the use of the statement offends due process. Schneckloth v. Bustamante, 412 U.S. 218, 225, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973); State v. Copeland, supra, 207; State v. Stankowski, supra, 132; State v. Derrico, 181 Conn. 151, 161, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980).

“ ‘This determination of voluntariness and admissibility, in the first instance, is a question of fact for the trial court to resolve in the exercise of a legal discretion in accordance with constitutional standards of due process. State v. Derrico, supra, 162-63. This, of course, includes decisions on questions of credibility presented to the trial court. State v. McCarthy, 197 Conn. 247, 258, 496 A.2d 513 (1985). “Though the question is ultimately factual, our usual deference to fact-finding by the trial court is qualified on the question of voluntariness by the necessity for an independent and scrupulous examination of the entire record to ascertain whether the trial court’s finding is supported by substantial evidence.” State v. Smith, 200 Conn. 465, 478, 512 A.2d 189 (1986); State v. Chung, [202 Conn. 39, 54, 519 A.2d 1175 (1987)].’ State v. Schroff, [206 Conn. 182, 195-96, 536 A.2d 952 (1988)]; see State v. Barrett, 205 Conn. 437, 451-52, 534 A.2d 219 (1987); State v. DeAngelis, supra, 232-33.” State v. Madera, supra, 40.

We have made such an examination of the record and find that the evidence contained therein more than adequately supports the trial court’s determination that the defendant’s statement was voluntary and, consequently, supports the exercise of the trial court’s discretion admitting the statement into evidence.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 21a-277 (a) provides: “penalty for illegal MANUFACTURE, DISTRIBUTION, SALE, PRESCRIPTION, DISPENSING, (a) Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marihuana, or a narcotic substance, except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned; and for a second offense shall be imprisoned not more than thirty years and may be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for each subsequent offense, shall be imprisoned not more than thirty years and may be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned.”

       There were four people in the apartment: the defendant, Lydia Milton, Freddy Santana and Emilio Cuellar.

       Because of the possibility that he might become a witness, Gerace withdrew as the defendant’s attorney.

       The statements of Santana and Cuellar were exculpatory of themselves and of the defendant and placed the ownership and possession of all the narcotics found in Milton’s apartment with Milton. Because the statements of Santana and Cuellar were not against their penal interest and were hearsay, those statements were not offered at the defendant’s trial. There was an indication in the record, however, that the trial court “briefly looked” at the statements of Santana and Cuellar in connection with the hearing to determine the admissibility of Milton’s statement when assessing the amount of corroboration for the statement.

       Luz Rosado’s recollection differed from that of both Gerace and Mason. She testified that she went to the office with both Milton and Santana but that only Milton gave a statement on that occasion. She also testified that Milton spoke English and no translator was present when Milton gave her statement.

       “AFFIDAVIT OF LYDIA MILTON
      The undersigned, LYDIA MILTON, does hereby depose and say the following:
      1. That I am over the age of eighteen (18) years, and understand and believe in the obligations of an oath.
      2. That I reside at 172 Lawrence Street, Hartford, Connecticut with one Fred Santana.
      3. That Angel Rosado came to my house to pick up Fred Santana.
      4. That he was waiting for Fred to get ready.
      5. That while he was waiting, the police busted in and arrested him.
      6. That I know that he has nothing to do with it, and nothing was his. That the drugs seized were mine. At the time, I was selling same to support my bad habit.
      7. That I have read the above and it is true and correct to the best of my knowledge and belief.
      Lydia Milton
      Subscribed and sworn to before me this_day of December, 1987
      Commissioner of the Superior Court”

       In the police raid on her apartment Milton was found to have narcotics on her person. She also apparently had other cases pending.

       “AFFIDAVIT OF FREDDY SANTANA
      The undersigned, FREDDY SANTANA, does hereby depose and say the following:
      1. That I am over the age of eighteen (18) years, and understand and believe in the obligations of an oath.
      2. That I reside at 64 Arnold Street, Hartford, Connecticut.
      3. At the time of the occurrence I was residing with LYDIA MILTON, at 172 Lawrence Street, Hartford, Connecticut.
      4. That I was waiting for Angel Rosado to pick me up at 172 Lawrence Street, Hartford, Connecticut.
      5. That five minutes after Angel arrived the police came in and searched us.
      6. After searching us and finding nothing on us they searched the house.
      7. That they found bags of dope under the sofa in the living room.
      8. That they arrested everybody in the house:
      1. Emilio Cuellar
      2. Lydia Milton
      3. Angel Rosado
      4. Freddy Santana
      9. That the dope did not belong to Angel Rosado or myself. It belonged to Lydia Milton.
      Freddy Santana
      Subscribed and sworn to before me this 17th day of December, 1987.
      Sharon M. Mason
      Notary Public”

        “AFFIDAVIT OF EMILIO CUELLAR
      The undersigned, EMILIO CUELLAR, does hereby depose and say the following:
      1. That I am over the age of eighteen (18) years, and understand and believe in the obligations of an oath.
      2. That I reside at 98 Main Street, Hartford, Connecticut.
      3. That at the time of the occurrence I was visiting one LYDIA MILTON, at 172 Lawrence Street, Hartford, Connecticut.
      4. That about ten minutes after arriving one Angel Rosado came in to pick up Freddy Santana.
      5. That five minutes after Angel Rosado arrived the police broke in and searched everybody in the house.
      6. That after not finding anything on us they searched the house and found bags of dope under the sofa in the living room.
      7. That they arrested everybody in the house:
      1. Emilio Cuellar
      2. Lydia Milton
      3. Angel Rosado
      4. Freddy Santana
      8. That the dope did not belong to Angel Rosado or myself. It belonged to Lydia Milton.
      Emilio Cuellar
      Subscribed and sworn to before me this 17th day of December, 1987.
      Sharon M. Mason
      Notary Public”

       The state claims that the statements of Santana and Cuellar should not have been considered as corroboration at all because they were admitted as exhibits for identification only and were never, either at the hearing or at trial, admitted as full exhibits. The trial court, however, in expounding on its reasons for excluding Milton’s statement did indicate that it “briefly looked at the affidavits of Santana and Cuellar.”

       The state had offered the entire statement but the court ordered that the statement be redacted except for the part eventually admitted.

       The state wished to introduce the excerpt from the complaint to substantiate the fact that the defendant had a substantial amount of cash with him and to connect the cash to the narcotics. The defendant maintained that the cash had been given to him by his wife to buy a car.

       The Connecticut constitutional issue has not been separately briefed and we therefore need not discuss it. State v. Crump, 201 Conn. 489, 499 n.16, 518 A.2d 378 (1986).

       The IAD form does not contain Miranda warnings.


author: Hull, J.

text:
    Town of West Hartford et al. v. Freedom of Information Commission et al.
    (14122)
    Peters, C. J., Callahan, Glass, Hull and Borden, Js.
    Argued January 15
    decision released April 9, 1991

      Regina M. Hopkins-Griggs, commission counsel, with whom, on the brief, was Mitchell W. Pearlman, general counsel, for the appellant (named defendant).

      Elizabeth Dee Bailey, assistant corporation counsel, for the appellees (plaintiffs).
   Hull, J.

This is an appeal from a decision of the trial court, reversing a decision of the named defendant freedom of information commission (FOIC), wherein the FOIC had ordered the plaintiffs, the town of West Hartford and its director of finance, Andrew F. Urban, to provide the defendants Uniformed Firefighters’ Association of Connecticut (UFAC) and its president, Raymond D. Shea, (defendants) with a list of the addresses of retired town employees. We reverse.

The relevant facts are as follows. The defendants requested that the plaintiffs provide them with a list of the names and addresses of all retired town employees. Relying on General Statutes § 1-19 (b) (2), the plaintiffs provided a list of the names but denied each of three requests for the addresses. Thereafter, on April 15, 1987, pursuant to General Statutes (Rev. to 1987) § l-21i (b), the defendants filed a notice of appeal with the FOIC, seeking disclosure of the requested addresses. Following a hearing, the FOIC hearing officer recommended that the FOIC order disclosure, having found, inter alia, that although the addresses are part of a personnel file, because they are available in public directories and there was no evidence that any town retirees took extraordinary measures to keep their addresses out of the public domain and inaccessible, disclosure of such addresses would not constitute an invasion of personal privacy within the meaning of §1-19 (b)(2).

The FOIC adopted the hearing officer’s report as its final decision and ordered the plaintiffs to disclose the addresses to the defendants. Pursuant to § l-21i (d), the plaintiffs appealed the decision to the Superior Court, which sustained the appeal, concluding that because the defendants’ appeal to the FOIC had been time-barred under § l-21i (b), the FOIC lacked subject matter jurisdiction over the appeal. The trial court also rejected the FOIC’s determination that the addresses of the retired employees are available in public directories, concluding that even if the FOIC had had jurisdiction, the addresses were exempt from disclosure as part of a personnel file, the disclosure of which would constitute an invasion of personal privacy within the meaning of § 1-19 (b) (2). The FOIC appealed the decision to the Appellate Court and we thereafter transferred the appeal to this court pursuant to Practice Book § 4023.

The FOIC claims that the trial court mistakenly concluded that: (1) the defendants’ appeal to the FOIC had been time-barred and that, therefore, the FOIC lacked subject matter jurisdiction over the appeal; and (2) the addresses of the retired town employees are exempt from disclosure under § 1-19 (b) (2).

I

The FOIC first claims that, contrary to the view of the trial court, the FOIC had subject matter jurisdiction to address the defendants’ appeal because their appeal complied with the time constraints contained in § l-21i (b). We agree.

On February 23,1987, after two earlier requests had been denied, the defendants renewed their request that the plaintiffs provide them with a list of the addresses of retired town employees. The plaintiffs denied the third request in writing on April 8,1987. On April 15, 1987, the defendants appealed this denial to the FOIC. The trial court concluded, however, that because the request on February 23,1987, had been deemed denied on March 2, 1987, pursuant to General Statutes § l-21i (a), the time period for appealing the denial of that request had elapsed thirty days therefrom, on April 1, 1987, and that, therefore, the appeal filed on April 15, 1987, had been untimely. The FOIC claims that because the appeal was filed within thirty days of the written denial of April 8,1987, the appeal had been timely filed. We agree with the FOIC.

General Statutes § 1-2 li provides in part: “(a) Any denial of the right to inspect or copy [public] records provided for under section 1-19 shall be made to the person requesting such right . . . within four business days of such request. Failure to comply with a request to so inspect or copy such public record within such four business day period shall be deemed to be a denial.

“(b) Any person denied the right to inspect or copy records under section 1-19 . . . may appeal therefrom to the freedom of information commission, by filing a notice of appeal with said commission. A notice of appeal shall be filed within thirty days after such denial . . . .” The plaintiffs assert that because the phrase “shall be filed” is mandatory, “such denial” from which “[a] notice of appeal shall be filed within thirty days” is the first denial of a request for public records, whether statutory or written. We are unpersuaded.

Because the Freedom of Information Act does not bar successive requests or successive denials, there is no requirement that an appeal to the FOIC, pursuant to § 1-21i (b), be taken from the denial of the first request or any particular request. Board of Education v. Freedom of Information Commission, 208 Conn. 442, 451, 545 A.2d 1064 (1988). Such a rigid requirement “would frustrate the ‘strong legislative policy in favor of the open conduct of government and free public access to government records.’ Wilson v. Freedom of Information Commission, [181 Conn. 324, 328, 435 A.2d 353 (1980)].” Id. The plaintiffs’ proposed interpretation of § 1-21i would require that an appeal to the FOIC be taken from a particular denial, specifically a statutory denial. It would be illogical to conclude, however, that while an appeal need not be taken from the denial of a particular request, that the right of appeal is limited to a particular denial.

“ ‘ “ Tn construing a statute, common sense must be used, and the courts will assume that the legislature intended to accomplish a reasonable and rational result.’ ” ’ Ford Motor Credit Co. v. B.W. Beardsley, Inc., 208 Conn. 13, 20, 542 A.2d 1159 (1988). ‘A statute . . . should not be interpreted to thwart its purpose.’ Builders Service Corporation v. Planning & Zoning Commission, 208 Conn. 267, 276, 545 A.2d 530 (1988).” Board of Education v. State Board of Labor Relations, 217 Conn. 110, 126-27, 584 A.2d 1172 (1991). The plaintiffs contend that their interpretation of § 1-21i (b) would encourage prompt disposition of matters involving disclosure of public records. To the contrary, it would merely increase the number of requests made. Furthermore, such a construction might discourage good faith negotiations about requests for disclosure lest relief from the FOIC be foreclosed by the lapse of the appeal period. Moreover, because the Freedom of Information Act is designed to facilitate the disclosure of public information upon the requests of laypersons as well as lawyers, construing § 1-21i (b) as the plaintiffs suggest would undoubtedly result in unnecessary surprise to laypersons, who would ordinarily be unaware of such a short period of time in which to file an appeal, especially when they had received no response to their requests. Finally, contrary to the expressed need therefor in § l-21i (a), the plaintiffs proffered construction would render written denials of requests for public records useless.

We conclude that the statutory denial set forth in § l-21i (a) does not limit the right to appeal a written denial of a request for disclosure of public records, but merely ensures an expedient right of appeal for those who do not desire to await a written denial. Although written denial of a request for disclosure of public records is required; General Statutes § l-21i (a); there is no statutory recourse against a public agency for failure to comply with this requirement. Without the statutory denial provision, therefore, if a public agency failed to respond to a request, the person seeking disclosure would have no further recourse because the right of appeal to the FOIC in § l-21i (b) is the right to appeal a denial. We further conclude that § l-21i (b) affords a right to appeal to the FOIC any denial, whether written or statutory, of a request for disclosure of public records.

The defendants in this case filed a notice of appeal with the FOIC on April 15,1987, seven days after the plaintiffs denied their third request for a list of the addresses. We conclude, therefore, that the trial court should not have concluded that the appeal had been untimely so as to bar the FOIC’s subject matter jurisdiction.

II

The FOIC’s second claim is that the trial court mistakenly concluded that the addresses of retired town employees are automatically exempt from disclosure pursuant to § 1-19 (b) (2). We agree.

Section 1-19 (b) (2) provides that “[njothing in sections 1-15, 1-18a, 1-19 to 1-19b, inclusive, and 1-21 to 1-21k, inclusive, shall be construed to require disclosure of . . . (2) personnel . . . files the disclosure of which would constitute an invasion of personal privacy.” While the parties agree that disclosure of the addresses would require disclosure of personnel files, they disagree over whether disclosure of such files would constitute an invasion of personal privacy.

“Connecticut courts have considered a person’s reasonable expectation of privacy and the potential for embarrassment as significant factors in determining if disclosure [of public records] would constitute an invasion of privacy. Galvin v. Freedom of Information Commission, 201 Conn. 448, 461, 518 A.2d 64 (1986); Judiciary Committee v. Freedom of Information Commission, [39 Conn. Sup. 176, 188, 473 A.2d 1248 (1983)].” Chairman v. Freedom of Information Commission, 217 Conn. 193, 198, 585 A.2d 96 (1991). The trial court, in concluding that the retirees had a reasonable expectation of privacy in their addresses, rejected, as unsupported by the evidence, the FOIC’s finding that these addresses were accessible through public directories. It cannot seriously be questioned, however, that, as a general rule, addresses are publicly available. A person’s address is known by his neighbors and is ordinarily published in public telephone and municipal directories. Absent specific requests for nondisclosure, mail order houses disclose addresses to those seeking such information for advertising purposes.

Courts, may take judicial notice of "matters which come to the knowledge of men generally in the course of the ordinary experience of life, and are therefore in the mind of the trier, or they may be matters which are generally accepted by mankind as true and are capable of ready and unquestionable demonstration. Hygeia Distilled Water Co. v. Hygeia Ice Co., 70 Conn. 516, 534, 40 Atl. 534 [1898]; De Luca v. Park Commissioners, 94 Conn. 7, 9, 107 Atl. 611 [1919]; Masline v. New York, N.H. & H. R. Co., 95 Conn. 702, 708, 112 Atl. 639 [1921]; Thayer, Preliminary Treatise on Evidence, p. 301; 5 Wigmore, Evidence (2d Ed.) § 2571.” Roden v. Connecticut Co., 113 Conn. 408, 415, 155 A. 721 (1931). The doctrine of judicial notice also applies to administrative agencies. See General Statutes § 4-178; De Luca v. Park Commissioners, supra, 9-10. We conclude that the FOIC could reasonably have taken judicial notice of the fact that, as a general rule, addresses are available in public directories. The trial court, therefore, mistakenly concluded that disclosure of the retirees’ addresses would per se constitute an invasion of personal privacy.

We recognize, however, that there are persons who, through significant efforts, have made a conscious attempt to insulate their addresses from the public domain. Although the FOIC determined that there was no evidence that any retirees had taken extraordinary efforts to keep their addresses inaccessible, the record indicates that the retirees were never afforded the opportunity to present such evidence. We conclude, therefore, that while ordinarily an address is not a private fact exempt from disclosure under § 1-19 (b) (2), the retirees should be afforded the opportunity to show that, by virtue of their significant efforts, they have a reasonable expectation of privacy in their addresses. After all, it is an individual’s personal privacy that § 1-19 (b) (2) purports to protect.

The judgment is reversed and the case is remanded to the trial court with the direction to remand the case to the FOIC for a new hearing consistent with this opinion.

In this opinion the other justices concurred.

       General Statutes § 1-19 provides in pertinent part: “(a) Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-15. . . .
      “(b) Nothing in sections 1-15, l-18a, 1-19 to l-19b, inclusive, and 1-21 to l-21k, inclusive, shall be construed to require disclosure of . . . (2) personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy . . . .”

       General Statutes (Rev. to 1987) § 1-21Í (b) provides in pertinent part: “Any person denied the right to inspect or copy records under section 1-19 ... or denied any other right conferred by sections 1-15, l-18a, 1-19 to l-19b, inclusive, and 1-21 to l-21k, inclusive, may appeal therefrom to the freedom of information commission, by filing a notice of appeal with said commission. A notice of appeal shall be filed within thirty days after such denial . . . .”

       General Statutes § l-21i (d) provides in pertinent part: “Any party aggrieved by the decision of [the freedom of information] commission may appeal therefrom, in accordance with the provisions of section 4-183.”

       General Statutes § 1-211 (a) provides: “Any denial of the right to inspect or copy records provided for under section 1-19 shall be made to the person requesting such right by the public agency official who has custody or control of the public record, in writing, within four business days of such request. Failure to comply with a request to so inspect or copy such public record within such four business day period shall be deemed to be a denial.”

       The result we reach is not inconsistent with our earlier conclusion that the time periods within which the FOIC must hear and decide an appeal, set forth in General Statutes § 1-21i (b), are mandatory. See Zoning Board of Appeals v. Freedom of Information Commission, 198 Conn. 498, 505, 503 A.2d 1161 (1986). Because the thirty day period for filing a notice of appeal with the FOIC, set forth in § 1-21i (b), relates to the subject matter jurisdiction of the FOIC rather than to prompt decision-making by government officials, the time period is distinct from the time provisions at issue in Zoning Board of Appeals v. Freedom of Information Commission, supra. See LeConche v. Elligers, 215 Conn. 701, 714, 579 A.2d 1 (1990) (court should indulge every presumption in favor of subject matter jurisdiction); Demar v. Open Space & Conservation Commission, 211 Conn. 416, 425, 559 A.2d 1103 (1989). Furthermore, because the defendants filed a notice of appeal with the FOIC within thirty days of the plaintiffs’ denial, the issue of whether the thirty day filing period is mandatory is not presented by this appeal.

       Although Shea and the UFAC presented evidence that the addresses requested are contained in a computer payroll list, the FOIC determined that disclosure of the addresses would require disclosure of personnel files within the meaning of General Statutes § 1-19 (b) (2). Because this aspect of the FOIC’s finding was never challenged, we accept it for purposes of this appeal. See Hartford v. Freedom of Information Commission, 201 Conn. 421, 433, 518 A.2d 49 (1986).

       The trial court went on to conclude that, on balance, the retirees’ privacy interest in their addresses outweighed the virtually nonexistent public need for the information. We note that if it is determined that disclosure of a personnel file would constitute an invasion of privacy, the exemption of General Statutes § 1-19 (b) (2) applies. Chairman v. Freedom of Information Commission, 217 Conn. 193, 201, 585 A.2d 96 (1991). A balancing of interests is not required, nor is it consistent, with § 1-19 (b) (2), Id., 201-202.

       General Statutes § 4-178, which applies to administrative agency hearings, provides in pertinent part: “In contested cases ... (6) notice may be taken of judicially cognizable facts . . . .”


author: Covello, J.

text:
    Pleasant View Farms Development, Inc., et al. v. Zoning Board of Appeals of the Town of Wallingford
    Peters, C. J., Shea, Glass, Covello and Borden, Js.
    Argued January 10
    decision released April 9, 1991

      Edward Loughlin, with whom were David M. Krassner and, on the brief, Ann H. Rubin, for the appellants (plaintiffs).

      Janis M. Small, for the appellee (defendant).
   Covello, J.

This is an appeal from a judgment of the Superior Court that affirmed a decision of the Wallingford zoning board of appeals (ZBA). The ZBA determined that the plaintiffs did not have the authority to operate a used car dealership in a rural RU-40 zone. The issue presented is whether the plaintiffs’ evidence was factually and legally sufficient to support their claimed right to such a use based upon: (1) two prior variances granted to the plaintiffs’ predecessor in title; or (2) a preexisting nonconforming use of the property. We affirm the trial court’s decision that concluded that the ZBA correctly determined that such a use was not permitted.

The record discloses that the plaintiffs are the owners of a forty-five acre parcel at 100 Pond Hill Road also known as Clintonville Road, Wallingford. The property is in a rural RU-40 zone where used car dealerships are not permitted. On December 8,1971, Robert Fritz, the Wallingford zoning officer, executed a certificate of approval for the operation of a used car dealership on the Clintonville Road premises. The certificate stated: “[Public] hearing was waived because the local authority had previously approved such use for this location.” On April 7,1972, the commissioner of motor vehicles issued a used car dealer’s license for the Clintonville Road premises to Hillview Equipment Sales, Inc., the plaintiffs’ predecessor. Hillview Equipment Sales, Inc., renewed the license annually thereafter through 1990.

On October 6,1988, the Wallingford zoning enforcement officer issued an opinion that “a valid dealer’s and repairer’s [license] does not exist on property at 100 Pond Hill Road because the property has always been zoned residential . . . .” On December 19,1988, the plaintiffs having appealed, the Wallingford zoning board of appeals confirmed the zoning enforcement officer’s decision. The plaintiffs thereafter appealed to Superior Court which, in turn, affirmed the ZBA’s action. The Appellate Court thereafter granted the plaintiffs’ petition for certification limited to the question of whether the use of the premises for the business of an automobile dealer and repairer was authorized pursuant to previously granted zoning variances or as a valid nonconforming use. We transferred the plaintiffs’ appeal to this court in accordance with Practice Book § 4023.

I

The plaintiffs first claim that the ZBA and the trial court improperly determined that two earlier variances had not authorized the automobile dealer’s use on the Clintonville Road premises. The first application, dated February 28, 1968, sought a variance to “build additions to present bldgs [sic] and continue uses on property which include as per recorded on plot plan.” The ZBA granted the application “as per plot plan on file. To include the additional uses and expansions of the property as listed on the reverse side of the plot plan.” The reverse side of the plot plan stated: “Also for the expansion or continued use of the property for the following purposes: sales & services of fruit, vegetable, poultry & dairy food products; retail business or rental service occupation buildings; freezer & cold storage warehousing—wholesale & retail; warehousing of trucks & machinery; sale of loam or nursery products; processing and bottling or packaging of beverages— mainly apples & other fruits.”

The second application, dated February 19, 1971, sought permission “to repair and sell travel trailers and boats.” The ZBA granted the application subject to the following: “Stipulation. All work, equipment and displays must be in one building under cover.”

On December 15, 1986, the ZBA conducted a public hearing on an appeal from a cease and desist order entered by the Wallingford zoning enforcement officer that terminated the use of the Clintonville Road premises “for rented commercial warehouse and/or storage space.” Following an exhaustive examination of the history of the uses on the property, the ZBA voted: “To deny the cease and desist order with the following stipulations: (1) That the continuing uses as specified in the 1968 variance are valid subject to proper inspection and permits by the Planning and Zoning Department. (2) That an inspection of square footage must be undertaken by the Town Planner’s office for future control of the property. (3) No addition shall take place without proper application. (4) The 1968 variance applies only to the 6 plus or minus acres specified on the original variance, and any commercial use on the remainder of the property shall be discontinued as called for by the cease and desist order.”

The plaintiffs argue that within the totality of all of the foregoing there is a sufficient factual basis to support their contention that the ZBA had granted a variance to operate a used car dealership and that the ZBA and the trial court improperly failed to conclude that this was the case. The plaintiffs claim that even though there is no express language authorizing a used car dealership, the broad, general language contained in the 1968 variance constitutes sufficient authority to warrant the establishment of such a dealership.

In reviewing the actions of a zoning board of appeals we note that such a board is “ ‘endowed with a liberal discretion, and its [actions are] subject to review by the courts only to determine whether [they were] unreasonable, arbitrary or illegal.’ ” Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 152, 543 A.2d 1339 (1988). “ ‘The burden of proof to demonstrate that the board acted improperly’ ” is upon the party seeking to overturn the board’s decision. Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707, 535 A.2d 799 (1988), quoting Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 654, 427 A.2d 1346 (1980). In an appeal from the decision of a zoning board, we therefore review the record to determine whether there is factual support for the board’s decision, not for the contentions of the applicant.

While the 1968 variance contains a general authority to use the property for “Retail business or Rental Service . . . [and] warehousing of Trucks & Machinery,” we agree with the trial court’s conclusion that this language is simply inadequate to support the conclusion that the ZB A intended to grant a wide-ranging variance that included within it the authority to operate a used car dealership. Both the plaintiffs’ predecessor and the ZBA seemingly shared this view as borne out by the 1971 application for a variance to repair and sell travel trailers and boats. Had the 1968 variance actually granted a broad, general authority to conduct retail sales of whatever sort, such an authority would have embraced the sale of travel trailers and boats. Thus, there would have been no necessity for the 1971 variance. A general authority to conduct unspecified retail sales would also be inconsistent with the oft-stated proposition that “the power to grant variances from the strict application of zoning ordinances should be carefully and sparingly exercised. Celentano v. Zoning Board of Appeals, 136 Conn. 584, 587, 73 A.2d 101 [1950]; Kamerman v. LeRoy, 133 Conn. 232, 235, 50 A.2d 175 [1946].” Plumb v. Board of Zoning Appeals, 141 Conn. 595, 599, 108 A.2d 899 (1954). “[U]nless great caution is used and variances are granted only in proper cases, the whole fabric of town- and city-wide zoning will be worn through in spots and raveled at the edges until its purpose in protecting the property values and securing the orderly development of the community is completely thwarted.” Gregorio v. Zoning Board of Appeals, 155 Conn. 422, 427, 232 A.2d 330 (1967). The power to authorize a variance “is only granted for relief in specific and exceptional instances.” DeFelice v. Zoning Board of Appeals, 130 Conn. 156, 164, 32 A.2d 635 (1943).

We note further that the use of a general authority to establish an unspecified retail use in a rural district, in which retail sales are limited to farm stands, would constitute an unauthorized usurpation of the legislative function to determine land use, a function that is customarily committed to zoning commissions. A variance “should not be used to accomplish what is in effect a substantial change in the uses permitted in a [rural] zone. . . . Greenwich Gas Co. v. Tuthill, 113 Conn. 684, 694, 155 A. 850 [1931].” Heady v. Zoning Board of Appeals, 139 Conn. 463, 468, 94 A.2d 789 (1953). “Arguments concerning the general unsuitability [or suitability] of a neighborhood to the zoning classification in which it has been placed are properly addressed to the promulgators of the ordinance and not to those who have been empowered to grant variances.” Ward v. Zoning Board of Appeals, 153 Conn. 141, 145, 215 A.2d 104 (1965).

II

The plaintiffs alternatively claim to have proven the existence of a valid nonconforming use through continuous operation of a used car dealership on the Clintonville Road premises from a time that predated the 1958 enactment of the Wallingford zoning regulations and the creation of the rural RU-40 zone.

“A non-conforming use is merely an ‘existing use’ the continuance of which is authorized by the zoning regulations.” Melody v. Zoning Board of Appeals, 158 Conn. 516, 519, 264 A.2d 572 (1969). “In the determination whether a particular use is permitted or nonconforming, the question is one of expressed intent as stated in the zoning regulations, which are basically legislative enactments, and such intent must be found from the intent expressed in the regulations construed as a whole.” Melody v. Zoning Board of Appeals, supra, 519. Section 6.13 of the Wallingford zoning regulations, adopted on November 7, 1958, specifically defines a nonconforming use as “one which existed lawfully, whether by variance or otherwise, on the date these zoning regulations . . . became effective.” See footnote 7, supra. In the absence of a finding that variances sanctioned the plaintiffs’ use of their property as a used car dealership, the only alternative factual predicate to a claim of a valid nonconforming use in this instance, would be a finding that a used car dealership was operating on the Clintonville Road premises prior to November 7,1958. The plaintiffs bear the burden of proving the existence of such a nonconforming use. Friedson v. Westport, 181 Conn. 230, 234, 435 A.2d 17 (1980).

In this connection, the record discloses that Hillview Equipment Sales, Inc., had conducted business on an uninterrupted basis with a valid used car dealer’s or repairer’s license since September 30,1972. The license had been issued presumably upon the basis of Fritz’ December 8, 1971 certificate that stated: “the local authority had previously approved such use for this location.” We have earlier determined that the previous approvals did not include the used car dealership. Despite the number and variety of uses claimed for the property, there is nothing in the record to establish a link to a use that predates November 7,1958, the effective date of the current version of the Wallingford zoning regulations. Since there was no such proof, and the defendant neither admitted nor conceded that this was the case, neither the ZBA nor the trial court improperly concluded that a valid nonconforming use did not exist.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 8-8 (a) provides in part: “Any person . . . aggrieved by any decision of said [zoning board of appeals] . . . may, within fifteen days from the date when notice of such decision was published in a newspaper . . . take an appeal to the superior court for the judicial district in which such municipality is located. . .

       General Statutes § 14-54 provides in part: “Any person who desires to obtain a license for dealing in . . . motor vehicles shall first obtain and present to the commissioner [of motor vehicles] a certificate of approval of the location for which such license is desired from . . . the [zoning] board of appeals.”

       General Statutes § 14-55 provides in part: “[T]he local authorities . . . shall . . . upon receipt of an application for a certificate of approval . . . assign the same for hearing within sixty-five days of the receipt of such application. ... In any case in which such approval has been previously granted for any location, the local authority may . . . waive the requirement of a hearing on a subsequent application.”

       General Statutes § 14-52 (a) provides in part: “No person, firm or corporation may engage in the business of the buying, selling, offering for sale or brokerage of any motor vehicle . . . without having been issued either a new car dealer’s, a used car dealer’s, a repairer’s or a limited repairer’s license. . . . Each such license shall be renewed annually . . . .”

       While the record is unclear as to exactly what the zoning enforcement officer did, the plaintiffs, the Wallingford zoning board of appeals and the trial court all treated the officer’s opinion of October 6,1988, as constituting an order to cease operating a used car dealership on the Clintonville Road premises.

       Section 4.2 (c) of the Wallingford Zoning Regulations provides: “The following permitted uses [within a Rural District] require approval of a Special Permit. . . . 2. A temporary stand for the sale of farm and garden produce raised on the premises .... The granting of a Special Permit for a temporary stand shall not be construed at a later date as a legally existing nonconforming use.”

       Section 6.13 of the Wallingford Zoning Regulations provides: “A nonconforming use, structure or lot is one which existed lawfully, whether by variance or otherwise, on the date these zoning regulations or any amendment thereto became effective, and which fails to conform to one or more of the applicable zoning regulations or such amendment thereto.
      “Such non-conformities are incompatible with and detrimental to permitted uses, structures, and lots in the zoning districts in which they are located; they inhibit present and future development of nearby properties; and they confer upon their owners and users a position of unfair advantage.
      “It is a fundamental principle of zoning law that non-conformities are not to be expanded, and that they should be abolished or reduced to conformity as quickly as the fair interests of the parties will permit. This principle is declared to be the intent of this regulation.”

       The fact that other similar uses of the property may qualify as nonconforming uses does not change our analysis. “[N]onconforming uses should be abolished or reduced to conformity as quickly as the fair interest of the parties will permit. In no case should they be allowed to increase.” Salerni v. Scheuy, 140 Conn. 566, 570, 102 A.2d 528 (1954).