Crawley v. Commissioner of Correction

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SCOTT CRAWLEY v. COMMISSIONER
OF CORRECTION
(AC 41052)
Keller, Elgo and Eveleigh, Js.
Syllabus
The petitioner, who had been convicted of possession of narcotics with the
intent to sell by a person who is not drug-dependent, sought a writ of
habeas corpus. He claimed, inter alia, that his criminal trial counsel
rendered ineffective assistance by failing to move to suppress cocaine
that the police found during a search of his bedroom in the residence
of the home in which he had been staying. The petitioner also claimed,
inter alia, that his habeas counsel in a prior habeas action rendered
ineffective assistance by failing to raise that claim of ineffective assis-
tance of trial counsel. The police had found the cocaine after they
obtained the written consent of the owner of the home to search the
petitioner’s bedroom. The habeas court dismissed the petitioner’s claims
that his trial counsel rendered ineffective assistance, concluding that
they were barred by the successive petition doctrine codified in the
applicable rule of practice (§ 23-29 [3]). The court also determined that
the petitioner failed to prove deficient performance by his prior habeas
counsel or prejudice that resulted therefrom. The court thereafter
granted the petitioner’s petition for certification to appeal, and the peti-
tioner appealed to this court. Held:
1. The habeas court properly dismissed the petitioner’s claims of ineffective
assistance of trial counsel pursuant to the successive petition doctrine
in § 23-29 (3); the petitioner’s claims were predicated on the same ground
that was raised in his prior habeas action, the petitioner did not allege
that his claims were based on newly discovered facts or evidence, and
he sought the very same relief that he had requested in the first
habeas action.
2. The petitioner could not prevail on his assertion that the habeas court
improperly denied his claim of ineffective assistance of prior habeas
counsel; trial counsel’s failure to file a motion to suppress the drugs
that were found in the petitioner’s bedroom predicated on a theory that
the petitioner exclusively possessed the bedroom and, by extension,
the cocaine discovered therein, was not objectively unreasonable, as
trial counsel necessarily had to weigh the motion’s limited probability
of success against its potential impact on a contrary theory of defense
that was based on the petitioner’s nonexclusive use of the bedroom,
counsel had to be mindful that any suppression hearing testimony by
the petitioner regarding his exclusive possession of the bedroom could
be used against him at trial, which made the pursuit of a motion to
suppress fraught with risk, and because the petitioner did not demon-
strate deficient performance on the part of his trial counsel, his claim
of ineffective assistance of prior habeas counsel necessarily failed.
Argued September 16—officially released November 26, 2019
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland and tried to the court, Sferrazza, J.; judgment
dismissing the petition in part and denying the petition
in part, from which the petitioner, on the granting of
certification, appealed to this court. Affirmed.
Cheryl A. Juniewic, assigned counsel, for the appel-
lant (petitioner).
Laurie N. Feldman, special deputy assistant state’s
attorney, with whom, on the brief, were Brian Preleski,
state’s attorney, and Angela R. Macchiarulo, senior
assistant state’s attorney, for the appellee (respondent).
Opinion
ELGO, J. The petitioner, Scott Crawley, appeals from
the judgment of the habeas court dismissing in part and
denying in part his amended petition for a writ of habeas
corpus. He contends that the court improperly rejected
his claims of ineffective assistance on the part of both
his criminal trial counsel and his first habeas counsel.
We affirm the judgment of the habeas court.
This appeal concerns the petitioner’s convictions on
two counts of possession of narcotics with the intent
to sell by a person who is not drug-dependent in viola-
tion of General Statutes § 21a-278 (b). The relevant facts
underlying those convictions were set forth in this
court’s decision on the petitioner’s direct appeal. ‘‘On
September 5, 2002, Joseph Amato, a detective with the
Manchester police department who was assigned to
the federal Drug Enforcement Administration, informed
Thomas Dillon, then a detective with the Wethersfield
police department, that the [petitioner] possessed a
‘large quantity of cocaine.’ Amato informed Dillon of
the [petitioner’s] known address in Wethersfield and
related information concerning [the petitioner’s] auto-
mobile and license plate number. During his subsequent
investigation, Dillon learned that the [petitioner’s] oper-
ator’s license was suspended.
‘‘On September 6, 2002, Dillon conducted surveillance
at the Wethersfield address given to him by Amato.
Dillon observed the [petitioner] get into his automobile
and drive away. At Dillon’s request, Christopher Morris,
a Wethersfield police officer, stopped the [petitioner’s]
automobile at a gasoline station and arrested the [peti-
tioner] on a charge of driving with a suspended license.
Morris searched the [petitioner] incident to the arrest
and found a bag containing 120 smaller bags of cocaine,
in a powder mixture, in one of the front pockets of the
[petitioner’s] pants. The cocaine powder weighed 87.32
grams and consisted of between 17 to 60 percent
pure cocaine.
‘‘Later that day, Robert Deroehn, a detective with the
Wethersfield police department, arrived at the [petition-
er’s] known residence in Wethersfield, 7 Spring Street
[residence]. There, Deroehn encountered Daniel Har-
drick, who owned the residence. Hardrick told Deroehn
that the [petitioner] did not live at the residence but
that the [petitioner] ‘stayed there.’ Hardrick signed a
consent form, thereby permitting the police to enter and
search the home without a warrant. Amato searched
the [petitioner’s] room and discovered a postal mailing
tube that contained two bags of cocaine, in a powder
mixture, in the closet in the [petitioner’s] room. One
bag contained 26.73 grams of cocaine powder separated
into thirty-eight smaller bags. Another bag contained
62.60 grams of cocaine powder and consisted of 72
percent pure cocaine. On the basis of evidence concern-
ing, inter alia, the quantities of cocaine possessed by
the [petitioner], as well as the quantities of cocaine
typically possessed by persons who intend to sell
cocaine, the jury reasonably found that the [petitioner]
possessed both stashes of cocaine with the intent to
sell them.’’ State v. Crawley, 93 Conn. App. 548, 550–51,
889 A.2d 930, cert. denied, 277 Conn. 925, 895 A.2d 799(2006). The jury thus found the petitioner guilty on all
counts, and the trial court rendered judgments accord-
ingly, sentencing the petitioner to a total effective term
of thirty years of incarceration. Id., 550 n.1. From those
judgments, the petitioner unsuccessfully appealed to
this court.1 Id., 569.
The petitioner commenced his first habeas action in
2006, alleging that his criminal trial counsel, Attorney
Donald Freeman, had rendered ineffective assistance
by failing (1) to present evidence that the petitioner
was a drug-dependent person and (2) to preserve his
right to sentence review. The petitioner was repre-
sented by Attorney Hilary Carpenter at the habeas trial,
at the conclusion of which the court agreed with the
petitioner’s latter contention and restored his right to
sentence review.2 At the same time, the court rejected
his other claim of ineffective assistance of counsel.
From that judgment, the petitioner unsuccessfully
appealed to this court. See Crawley v. Commissioner
of Correction, 141 Conn. App. 660, 62 A.3d 1138, cert.
denied, 308 Conn. 946, 68 A.3d 656 (2013).
In subsequent years, the petitioner filed four succes-
sive petitions for a writ of habeas corpus. The habeas
court dismissed each of those petitions.
The petitioner commenced the present habeas action
in 2014. In his petition, the petitioner alleged ineffective
assistance on the part of Freeman due to his failure (1)
to move to suppress the cocaine found in the residence
and (2) to provide a competent summation to the jury.
The petitioner further alleged ineffective assistance on
the part of Carpenter due to her failure to raise those
two claims of ineffective assistance of trial counsel in
his first habeas action. In answering that petition, the
respondent, the Commissioner of Correction, alleged a
successive petitions defense, claiming that the petition-
er’s claims were ‘‘premised upon the same legal
grounds’’ that he asserted in his first habeas action.
Following a trial, the habeas court, relying on the suc-
cessive petition doctrine, dismissed the two counts
alleging ineffective assistance of trial counsel and
denied the petition in all other respects. The court sub-
sequently granted certification to appeal from that judg-
ment, and this appeal followed.
I
The petitioner first claims that Freeman rendered
ineffective assistance by failing to file a motion to sup-
press the cocaine found in the residence. In rejecting
that claim, the court concluded that it was barred by
the successive petition doctrine. We agree.
As our Supreme Court has observed, the successive
petition doctrine involves the ‘‘one situation in which a
court is not ‘legally required’ to hear a habeas petition.’’
Mercer v. Commissioner of Correction, 230 Conn. 88,
93, 644 A.2d 340 (1994). The doctrine is codified in
Practice Book § 23-29, which provides in relevant part:
‘‘The judicial authority may, at any time, upon its own
motion or upon motion of the respondent, dismiss the
petition, or any count thereof, if it determines that . . .
(3) the petition presents the same ground as a prior
petition previously denied and fails to state new facts
or to proffer new evidence not reasonably available at
the time of the prior petition . . . .’’ That rule comports
with the teaching of Negron v. Warden, 180 Conn. 153,
158, 429 A.2d 841 (1980), in which the Supreme Court
held that ‘‘trial courts may dismiss a second [habeas]
application without a hearing only if that application
asserts the same grounds and fails to state new facts
or proffer new evidence not reasonably available to the
petitioner at the hearing on his previous application.’’
In the present case, the habeas court dismissed the
two counts of ineffective assistance on the part of the
petitioner’s trial counsel pursuant to Practice Book
§ 23-29 (3), concluding that they were predicated on
the same ground that was raised in the petitioner’s first
habeas action. On our plenary review of the record; see
Gudino v. Commissioner of Correction, 191 Conn. App.
263, 271, 214 A.3d 383, cert. denied, 333 Conn. 924,
A.3d (2019); we agree.
This court previously has held that ‘‘[a] claim of inef-
fective assistance of counsel during trial proceedings
constitutes the ‘same ground’ for purposes of [Practice
Book] § 23-29 (3), despite changes in the precise under-
lying specifications of deficient performance, unless
such new specifications are based on facts or evidence
not reasonably available when the ground was raised
in the earlier petition.’’ Lebron v. Commissioner of Cor-
rection, 178 Conn. App. 299, 318, 175 A.3d 46 (2017),
cert. denied, 328 Conn. 913, 179 A.3d 779 (2018); see
also Alvarado v. Commissioner of Correction, 153
Conn. App. 645, 651, 103 A.3d 169 (‘‘[w]e . . . note that
there is no claim that the third habeas petition contains
newly discovered facts’’), cert. denied, 315 Conn. 910,
105 A.3d 901 (2014). As in the petitioner’s first habeas
action, the first two counts of the operative petition here
allege ineffective assistance on the part of Freeman.
The petitioner has not alleged that those counts are
based on newly discovered facts or evidence. Moreover,
the petitioner seeks the very same relief that he
requested in his first habeas action—namely, vacatur
of his conviction. In such circumstances, the successive
petition doctrine plainly applies. See Zollo v. Commis-
sioner of Correction, 133 Conn. App. 266, 279, 35 A.3d
337 (applying successive petition doctrine when ‘‘the
petitioner’s second habeas petition was not founded on
a new legal ground, nor does it seek different relief’’),
cert. granted, 304 Conn. 910, 39 A.3d 1120 (2012) (appeal
dismissed May 1, 2013); McClendon v. Commissioner
of Correction, 93 Conn. App. 228, 231, 888 A.2d 183(‘‘where successive petitions are premised on the same
legal grounds and seek the same relief, the second peti-
tion will not survive a motion to dismiss unless the
petition is supported by allegations and facts not rea-
sonably available to the petitioner at the time of the
original petition’’), cert. denied, 277 Conn. 917, 895 A.2d
789 (2006). In light of the foregoing, we conclude that
the habeas court properly dismissed the counts alleging
ineffective assistance on the part of Freeman.
II
The petitioner also challenges the court’s determina-
tion that he had not proven ineffective assistance on
the part of Carpenter, his first habeas counsel, for failing
to raise an additional claim of ineffectiveness by Free-
man.3 The successive petition doctrine does not operate
as a bar to that claim. As our Supreme Court has
explained, in such instances, ‘‘the second habeas peti-
tion is not predicated on the same issues addressed
in the first petition. Although the petitioner must, by
necessity, repeat his allegations of trial counsel’s inade-
quacy, there may never have been a proper determina-
tion of that issue in the first habeas proceeding because
of the allegedly incompetent habeas counsel. The claim
of ineffective assistance of habeas counsel, when added
to the claim of ineffective assistance of trial counsel,
results in a different issue.’’ Lozada v. Warden, 223
Conn. 834, 844, 613 A.2d 818 (1992). Accordingly, we
must consider the merits of the petitioner’s claim.
To prevail on an ineffective assistance of habeas
counsel claim, commonly referred to as a habeas on a
habeas, ‘‘the petitioner must prove both (1) that his
appointed habeas counsel was ineffective, and (2) that
his trial counsel was ineffective. . . . As to each of
those inquiries, the petitioner is required to satisfy the
familiar two-pronged test set forth in Strickland v.
Washington, [466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984)]. First, the [petitioner] must show that
counsel’s performance was deficient. . . . Second, the
[petitioner] must show that the deficient performance
prejudiced the defense. . . . Unless a [petitioner]
makes both showings, it cannot be said that the convic-
tion . . . resulted from a breakdown in the adversary
process that renders the result unreliable. . . . In other
words, a petitioner claiming ineffective assistance of
habeas counsel on the basis of ineffective assistance
of trial counsel must essentially satisfy Strickland
twice . . . .
‘‘It is well settled that in reviewing the denial of a
habeas petition alleging the ineffective assistance of
counsel, [t]his court cannot disturb the underlying facts
found by the habeas court unless they are clearly erro-
neous, but our review of whether the facts as found by
the habeas court constituted a violation of the petition-
er’s constitutional right to effective assistance of coun-
sel is plenary.’’ (Internal quotation marks omitted.)
Brewer v. Commissioner of Correction, 189 Conn. App.
556, 561–62, 208 A.3d 314, cert. denied, 332 Conn. 903,
208 A.3d 659 (2019).
On appeal, the petitioner alleges that Carpenter, as
habeas counsel, rendered ineffective assistance in fail-
ing to pursue an ineffective assistance of trial counsel
claim in his first habeas action regarding Freeman’s
failure to move to suppress the cocaine found in the
residence.4 Specifically, the petitioner alleges that there
was a lack of consent for the search due to his exclusive
possession of the bedroom in which the cocaine was
found. Freeman’s failure to file a motion to suppress on
that basis underlies the petitioner’s claim of ineffective
assistance of habeas counsel.
The following additional facts are relevant to that
claim. In his operative petition, the petitioner alleged,
inter alia, that the search of the residence was con-
ducted ‘‘without valid consent . . . .’’ At the habeas
trial, the court was presented with uncontroverted evi-
dence that the petitioner was thirty-seven years old at
the time in question and resided at the two bedroom
residence with his mother and Hardrick, his stepfather.
The court also was presented with documentary and
testimonial evidence that Hardrick, acting in his capac-
ity as an owner of the residence, had signed a written
consent form prior to the search of the residence con-
ducted on September 6, 2002. A copy of that consent
form, which was admitted into evidence, authorized
members of the Wethersfield Police Department ‘‘to
conduct a complete search’’ of the residence. The court
also received evidence that, prior to the petitioner’s
criminal trial, Freeman had filed a motion to suppress
‘‘any and all items seized on September 6, 2002 by the
Wethersfield Police Department,’’ arguing that such
items constituted the fruits of an unlawful search and
seizure conducted as part of an automobile stop on
the previous day, which the trial court denied.5 At his
criminal trial, the petitioner’s theory of defense was
that he lacked exclusive possession of the bedroom in
which the cocaine was found.6
It is well established that ‘‘[a] warrantless search is
not unreasonable under either the fourth amendment
to the constitution of the United States or article first,
§ 7, of the constitution of Connecticut if a person with
authority to do so has freely consented to the search.
. . . The state bears the burden of proving [by a prepon-
derance of the evidence] that the consent was free and
voluntary . . . .’’ State v. Jenkins, 298 Conn. 209, 249,
3 A.3d 806 (2010). In light of the written consent form
signed by Hardrick, as well as Hardrick’s testimony that
the Wethersfield police officers received his consent
to search the residence, the state likely could have
established at a suppression hearing that Hardrick’s
consent was freely and voluntarily provided.
The proper scope of that consent is another question
altogether. On appeal, the petitioner maintains that
Freeman rendered ineffective assistance by not pursu-
ing a motion to suppress predicated on Hardrick’s
alleged lack of authority to consent to the search of his
stepson’s bedroom.
In State v. Azukas, 278 Conn. 267, 897 A.2d 554 (2006),
our Supreme Court articulated the legal principles that
govern third-party consent when a parental relationship
is present. The court first observed that ‘‘the over-
whelming majority of the cases hold that a parent may
consent to a police search of a home that is effective
against a child, if a son or a daughter, whether or not
still a minor, is residing in the home with the parents
. . . .’’7 (Internal quotation marks omitted.) Id., 278;
accord United States v. Romero, 749 F.3d 900, 905 (10th
Cir. 2014) (‘‘when a child lives with a parent, the parent-
child relationship establishes a presumption that the
parent has control for most purposes over the property
and therefore actual authority to consent to a search
of the entire home’’); State v. Crumb, 307 N.J. Super.
204, 243–44, 704 A.2d 952 (App. Div. 1997) (‘‘[e]ven in
cases where the child has reached adulthood, courts
have been reluctant to find that the son or daughter had
exclusive possession of a room in the parent’s home’’).
To overcome that presumption of parental authority,
our Supreme Court explained, ‘‘the child must establish
sufficiently exclusive possession of the room to render
the parent’s consent ineffective. . . . Factors [to con-
sider] when evaluating whether a child has established
sufficiently exclusive possession of the room include:
whether the child is paying rent; who has ownership of
the home; whether the door to the bedroom is generally
kept closed; whether there is a lock on the door;
whether other members of the family use the room;
and whether other members of the family had access
to the room for any reason.’’ (Citation omitted; internal
quotation marks omitted.) State v. Azukas, supra, 278
Conn. 278. The petitioner claims that Freeman rendered
ineffective assistance in failing to pursue such a claim.
We do not agree.
At the habeas trial, the petitioner submitted testimo-
nial evidence to support his claim that he possessed
exclusive possession over the bedroom in question.
Specifically, the petitioner testified that his exclusive
occupancy of the residence’s second bedroom ‘‘was
generally known’’ among family members who shared
that residence and that he was the only person who
could permit access to that bedroom. The petitioner
further testified that the bedroom door had a lock, that
he kept the door shut, and that he paid rent. The peti-
tioner also called Hardrick as a witness, who testified
that no one was allowed into the bedroom without the
petitioner’s permission.
At the same time, that evidence of exclusive posses-
sion was undercut by testimony at the habeas trial from
Hardrick’s grandson, Glenn Miller. Contrary to Har-
drick’s testimony that Miller never slept at the resi-
dence, Miller testified that he had stayed at the resi-
dence on ‘‘one or two weekends’’ per month. When he
did so, Miller testified, he ‘‘stayed upstairs’’ in what he
called the ‘‘spare’’ bedroom ‘‘[m]ost of the time . . . .’’
Miller testified that he never obtained the petitioner’s
permission to do so; rather, Hardrick had provided such
permission. The petitioner’s claim of exclusive posses-
sion also is contrary to the testimony of Detective
Deroehn, who obtained Hardrick’s consent to search
the residence on September 6, 2002. Deroehn testified
at the petitioner’s criminal trial that Hardrick ‘‘told him
that the [petitioner] did not live at the residence’’ and
only ‘‘ ‘stayed there’ occasionally.’’ State v. Crawley,
supra, 93 Conn. App. 561. For that reason, the habeas
court aptly observed that ‘‘suppression of the cocaine
found in the bedroom was a mere possibility rather
than a probability.’’
In considering the viability of a motion to suppress
that is based on a theory of exclusive possession of the
bedroom, Freeman necessarily had to weigh its limited
probability of success against its potential impact on a
contrary theory of defense predicated on the petition-
er’s nonexclusive use of the bedroom. As both Freeman
and the petitioner confirmed at the habeas trial, Free-
man’s objective was to distance the petitioner from the
cocaine found in the bedroom. Freeman also had to be
mindful that any suppression hearing testimony pro-
vided by the petitioner regarding his exclusive posses-
sion of the bedroom in question could be used against
him at trial for impeachment purposes. See United
States v. Jaswal, 47 F.3d 539, 543–44 (2d Cir. 1995)
(holding that defendant’s testimony at suppression
hearing can be used to impeach defendant’s testimony
at trial but not to prove guilt); State v. Vega, 163 Conn.
304, 307–308, 306 A.2d 855 (1972) (defendant’s testi-
mony at suppression hearing admissible at subsequent
trial as prior inconsistent statement). For that reason,
we agree with the habeas court that the pursuit of
a motion to suppress predicated on the petitioner’s
allegedly exclusive possession of the bedroom was one
fraught with risk.
‘‘In any case presenting an ineffectiveness claim, the
performance inquiry must be whether counsel’s assis-
tance was reasonable considering all the circum-
stances. . . . Judicial scrutiny of counsel’s perfor-
mance must be highly deferential and courts must
indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional
assistance; that is, the [petitioner] must overcome the
presumption that, under the circumstances, the chal-
lenged action might be considered sound trial strategy.’’
Brewer v. Commissioner of Correction, supra, 189
Conn. App. 561–62. On our review of the record before
us, we conclude that the petitioner has not overcome
that presumption. Freeman’s failure to file a motion
to suppress predicated on a theory that the petitioner
exclusively possessed the bedroom in question and,
by extension, the cocaine discovered therein, was not
objectively unreasonable in light of the particular cir-
cumstances of this case. We therefore conclude that
the petitioner has not demonstrated deficient perfor-
mance on the part of his criminal trial counsel.
In light of that conclusion, the petitioner’s ineffective
assistance of habeas counsel claim necessarily fails.
See Lozada v. Warden, supra, 223 Conn. 842–43; Denby
v. Commissioner of Correction, 66 Conn. App. 809, 814,
786 A.2d 442 (2001), cert. denied, 259 Conn. 908, 789
A.2d 994 (2002). Accordingly, the court properly denied
the petition for a writ of habeas corpus with respect
to that claim.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In his direct appeal, the petitioner alleged instructional error, a double
jeopardy violation, and that the evidence adduced at trial was insufficient
to establish his possession of the cocaine discovered at the residence. State
v. Crawley, supra, 93 Conn. App. 550.
2
The sentence review division thereafter modified the petitioner’s total
effective sentence, which resulted in a reduction thereto. See Crawley v.
Commissioner of Correction, 141 Conn. App. 660, 663 n.2, 62 A.3d 1138,
cert. denied, 308 Conn. 946, 68 A.3d 656 (2013).
3
With respect to the petitioner’s claims of ineffective assistance of habeas
counsel, the habeas court concluded that the petitioner had failed to prove
either deficient performance on the part of counsel or prejudice resulting
therefrom.
4
Although he also alleged, in counts two and four of the operative petition,
ineffective assistance predicated on Freeman’s failure to provide a compe-
tent summation to the jury, the petitioner has raised no claim in this appeal
with respect thereto. We therefore deem any such claims abandoned. See
Moye v. Commissioner of Correction, 168 Conn. App. 207, 212 n.3, 145 A.3d
362 (2016), cert. denied, 324 Conn. 905, 153 A.3d 653 (2017).
5
A copy of the motion to suppress and accompanying memorandum of
law, dated December 4, 2002, was admitted into evidence at the habeas
trial. Freeman likewise confirmed at trial that he recalled ‘‘arguing repeatedly
that once the [automobile] stop is suppressed and found to be bogus, every-
thing else, including that Wethersfield search,’’ must be suppressed. The
record before us also includes a copy of the transcript of the August 12,
2003 hearing on the motion to suppress, at which Freeman argued in relevant
part that ‘‘if that [automobile] stop was bad, then everything that happened
in Wethersfield . . . was a direct result of that [automobile] stop and [is
the fruit] of a poisonous tree, and everything is suppressed.’’
6
As this court noted in the petitioner’s direct appeal, the petitioner argued
‘‘that the evidence did not demonstrate that he exclusively possessed the
premises where the narcotics were found.’’ State v. Crawley, supra, 93
Conn. App. 562. In his testimony at the habeas trial, the petitioner likewise
confirmed that Freeman’s argument at trial was that the state could not
connect him to the cocaine discovered in the residence.
7
With respect to familial relationships, we note that our Supreme Court
has concluded that the consent of a stepmother, as memorialized on a signed
consent form, to search her stepson’s bedroom was valid. See State v. Jones,
193 Conn. 70, 77–81, 475 A.2d 1087 (1984).